Medical-Tort Law: Ranking the States

How much do a state’s laws governing medical malpractice and other torts relevant to health care affect the availability of care?  Plenty!

Lawrence J. McQuillan’s & Hovannes Abramyan’s 2010 edition of the U.S. Tort Liability Index, which has a number of measurements included in the U.S. Index of Health Ownership, ranks states according to 42 variables.

Eight of the measurements in the U.S. Tort Liability Index are relevant to the U.S Index of Health Ownership: One output and seven inputs. The previous edition of the U.S Index of Health Ownership included six measurements of medical tort, but McQuillan & Abramyan have discovered more variables for their 2010 edition of the Tort Liability Index, allowing more detailed measurement.

As a partial update of the U.S. Index of Health Ownership, this brief analysis calculates a medical-tort index from a simple average of the eight relevant variables.  Mississippi, Nevada, Michigan, Colorado, and Louisiana lead the pack; while Vermont, Rhode Island, Kentucky, Pennsylvania, and Iowa bring up the rear. Even the leaders, however, lag in some measurements.

Mississippi, for example, leads on procedural rules: Pre-trial screening or arbitration and conditions on the use of expert witnesses. However, it does not limit lawyers’ ability to abuse their privilege by limiting their share of awards. Colorado and Louisiana also fail to impose limits. Unfortunately, the laggards do not show a similar pattern: The bottom five states perform poorly in all eight measurements.

Reducing the burden of medical tort is critical to increasing Americans’ health ownership and reducing medical costs that curtail our access to care. Some progress is evident, but states aiming to improve their medical-tort laws still have a long way to go.

Liberty advances when courts strike down caps on noneconomic damages

The most recent Health Care News from the Heartland Institute has a story on Lebron v. Gottlieb, the Illinois Supreme Court decision that struck down Illinois’ cap on noneconomic damages in med-mal lawsuits.  Based on their reporting, it does not appear that the libertarians at Heartland are pleased with the opinion.  The article focuses on how well the reform had worked, how pleased all the greedy trial lawyers are with the decision, and how certain judges might just need to be voted out of office.

I frankly don’t understand how anyone who claims to defend liberty can defend caps on noneconomic damages.  When one person, a tortfeasor in legalese, damages another person, it has long been held that a damaged person has a claim on the tortfeasor’s property to redress their damage, whether the damages are economic or not.  This claim on property is no different than any other interest in property.  As such, an arbitrary restriction on noneconomic damages is, in my opinion, a taking of property.

Yes, many will argue that noneconomic damage values established by juries are themselves arbitrary and don’t deserve the same protection as the value of a house or car that can readily be determined by the market.  Nonsense.  Juries do use procedures based on marketplace values to arrive at damage awards.  Further, if anyone thinks juries could be more precise in their valuation (I’m sure they could be), then pass a law that leads to more precise values, not caps.

The Illinois Supreme Court did not base their decision on property rights per se, but I belielve they were interested in liberty.  They held that the cap violated separation of powers because it “unduly encroaches upon the fundamentally judicial prerogative of determining whether a jury’s assessment of damages is excessive within the meaning of the law.”  Implicit in this decision is a respect for the jury’s determination.  Of course, the Framers gave us juries in order to protect our liberties.  The Illinois Court is simply saying that the legislature cannot arbitrarily limit the decisions of a jury – decisions that directly impact the liberties of the parties involved in any particular case.  Indeed, restrictions on excessive jury decisions are more properly the domain of the judicial branch, the branch better equipped to address issues on a case-by-case basis.

Tort Reform Struck Down in Georgia

The state supreme court has dealt a blow to tort reform advocates in Georgia:

The Georgia Supreme Court ruled Monday that the state legislature may not limit the amount of money that juries award to victims of medical malpractice.

The ruling struck down a 2005 state law, championed by state Republicans, that capped jury awards at $350,000 for the pain and suffering of malpractice victims. The court held that the cap improperly removed a jury’s fundamental role to determine the damages in a civil case.

This decision comes on the heels of a similar state supreme court decision in Illinois.

So Much for Tort Reform

From the Chicago Tribune:

“The Illinois Supreme Court struck down the state’s medical malpractice law today, saying it violates separation of powers by allowing lawmakers to interfere with a judge’s ability to reduce verdicts.”

At least, from first blush, the majority exercised some measure of sound judicial reasoning:

Justices Lloyd Karmeier and Rita Garman dissented on certain points of the decision and expressed sympathy to providers of medical care, citing President Obama’s recent address to a joint session of Congress that the justices said “admonished” the nation’s collective failure to enact health care reform.

[snip]

Justices in the majority, however, said their decision was not made with health care reform efforts in Washington in mind, saying the “Obama administration’s health care reform efforts are not the backdrop against which we have decided the constitutionality.”

In other words, decide on the basis of your understanding of the law, not of the headlines.

Health “Reforms” a Boon to Trial Lawyers

There are a lot of losers in the new health “reform” bill, starting with, well, almost everyone who’s a patient. But fear not, some people do gain.

Who? Ambulance chasers, for one, according to Joseph Nixon, a senior fellow with the Texas Public Policy Foundation. “Few groups make out better under the congressional leadership’s health-care plans than personal-injury trial lawyers.”

He finds at least “26 new opportunities for plaintiff lawyers to sue doctors for malpractice” (emphasis added).

So as we’re going to encourage more people to visit the doctor (by growing Medicaid and subsidizing health insurance), we’re going to discourage doctors from practicing medicine, by laying a number of new legal traps.

Contrast this possibility with the reality of what has happened in Texas. Nixon knows a few things about the Lone Star state, since he is the author of reforms enacted there a few years ago.

In the 6 years since the state enacted tort reform, 18,000 doctors have moved in and set up shop. Some portion of that number, no doubt, is due to the state’s favorable economic situation (growing population, no income tax), but some of the credit goes towards new rules meant to curb frivolous lawsuits and reduce the need for defensive medicine.

A new federal law would likely inhibit other states from following the example of Texas. Worse, it could invalidate the reforms that Texans have benefited from since 2003.

Just another example of how “health deform” will hurt. I’m sure we will be finding more skunks at this party as time goes by.

Don’t Diss Your Pals

Earlier today I mentioned the observation that everyone suffers under health reform except the trial lawyers. Piper Scott of the Evergreen Freedom Foundation looked at the campaign contributions of trial lawyers:

“In 2008, lawyers and law firms anted up over $230 million, with over 75 percent of that going to Democrats. For the 2010 election cycle the percentage on an admittedly lower amount of nearly $33 million so far, 80 percent is going to Democrats.

Who leads the fight in Congress against tort reform? Democrats. Since 1999, 79 percent of the campaign contributions made by trial lawyers have gone to Democrats. Would you bite the hand that feeds you?

Is it simply a case of the trial lawyers giving primarily to the party in power? Not entirely. From 2001 through 2006 Republicans controlled the House, Senate, and White House, yet Democrats received more money. Not that Republican control did much good for the cause of tort reform, though.

First, Appease the Lawyers

James Copeland on tort reform:

As politicians fight to put together healthcare-reform legislation, virtually every interest group – from pharmaceutical companies to insurers, from doctors to seniors – has been asked to make sacrifices. One group, however, has been notably absent from the sacrifice table: the plaintiffs’ bar. As former Democratic National Committee chairman (and doctor) Howard Dean admitted at an August 26 town hall meeting, “The reason why tort reform is not in the bill is because the people who wrote it did not want to take on the trial lawyers.”

Copeland, who is the director of the Center for Legal Reform at the Manhattan Institute, writes about some of the specifics of the House bill that relate to medical-related lawsuits.

First, Enrich the Lawyers

Is there tort reform in the PelosiCare bill? Ha!

Says “The Moderate Voice,” “Not only will there be no meaningful tort reform, but the bill will provide economic incentives to make sure that no states attempt it.”

It’s possible to overstate the benefits of tort reform. But the fact that the bill creates incentives to avoid it shows that it’s not about good policy, but power politics.

Malpractice Caps Challenged in Kansas Court

The Kansas Supreme Court is hearing a constitutional challenge to the state’s cap on damages. The case involves a woman whose doctors removed the wrong ovary.

Here’s the nub of the argument, as summarized by the Lawrence Journal-World:

“Miltenberg argued that establishment of such a cap violates a person’s constitutional right to trial by jury, and infringes on the constitutional authority of the judiciary.

But Keplinger said the cap was put in place to promote a public good — keeping health care and insurance available — and didn’t infringe on constitutional rights.”

A Personal Approach to Tort Reform

Tort reform at the federal level is bad. Tort reform by states? Better. How about an even more personal level, though?

Here’s a Twitter feed I saw a few minutes ago that hints at the solution: When patients and doctors negotiate on services, the state courts should abide by that private decision – Levy #SPN09