Knight Of The Mind

I'll do my best to present a philosophical and generally conservative look at current events and life, the universe and everything. Readers are invited to take all that's posted herein with a grain of salt. or if they prefer, a grain of salt, a slice of lime and a shot of tequila.

Location: Alexandria, Virginia, United States

Greetings and welcome. My name is Steve, I'm 35 years old and I work for the US Army as an Operations Research Analyst. Hence my blog title Knight Of The Mind.

Friday, January 14, 2005

How Not To Reform The Tort System

Tort reform became an issue that the Maryland State Legislature could no longer duck. In a beautiful gesture of irony, a lobby of medical doctors served the legislature with an ultimatum. The language was no doubt the flowery pufffspeak of academia, but the message rang loud and clear: "Fix this broken system, or we walk off the job and you can take a break from your law offices and treat the sick, the halt and the lame yourselves."

The legal community didn't enjoy being served this notice anymore than the typical deadbeat father would enjoy being served with a summons for an alimony hearing. They even got their briefs in order and mounted a blistering counterattack. One talented personal injury attorney pointed out the fact that 3% of Maryland's Doctors were targeted with 50% of the litigation.

This clever argument tells a pointed partial truth that obscures vital information, relevant to the matter at hand. Attorney Irvin Kramer fails to point the specialization of the target doctors. This ignores the fact that practices such as OB/GYN are targeted far more often than others. This selective targeting denudes the health care system of certain vital specialties which some people quite literally could die without. Athwart Kramer's clever rebuttal, the fact that 3% of the doctors eat 50% of the pounding is the obvious truth that which 3% get annihilated matters greatly.

Another point that goes under the bridge and down the river involves how insurance companies operate. The insurance companies have two competing imperatives. They have to earn a reasonable profit and they have to set premiums that doctors can actually afford to pay. This means that if the cost of insuring the local Optimologist goes up by 300% because of repeated, beligerent litigation, the insurer would logically jack the premiums up 300% to keep his bottom line from drooping below cost level.

This is where logical runs into a cold brick wall. The one or two targeted specialties soon find themselves incapable of buying malpractice insurance and comtemplate taking up golfing as more than just a hobby. This kills the goose that lays the insurance company's golden egg, so Gieco et al. now face a dilemna. In order to solve this dilemna, they spread costs. All the dentists, podiatrists and neurologists in Maryland get an extra Christmas present in the mail, the next time a set of insurance bills arrive in the mail.

The attorney's, if they were nicer than most other human beings, would stop right here and say "Wow, this won't work. We'd better make sure our plaintiffs are bringing legitimate acts of malpractice to the table, before we represent them and negotiate renumeration." Of course, lawyers are normal human beings, like the rest of us. They see money on the table, they have what it takes to get that money; lot's of it. Hence they react like a pool of sharks aswim in a current of chummed-up water.

So that brings the situation to a tenuous head and throws the pass to the Maryland Legislature. The situation is exacerbated for the litigators and law makers by a governor who jumps in on the side of the medical doctors, both fists swinging. The populists with pitchforks, (Ok, so maybe these populists all drive Lexi) converge upon the statehouse and demand a solution.

The legislature consists of law makers. Talk to a typical law school candidate and he'll tell you that lawyers should make the laws because only they truly understand them. Of course, these lawyers than further convolute these laws so that even lawyers themselves no longer read them all 5 X 5, but that's a subject for another rant on another day.

The upshot of this is that a legislature full of attorneys becomes a fully owned subsidiary of the ATLA. When lawyers say "Boo!", legislatures get worried. Rather than brandishing up their resumes on USAJobs or, they pretty much do what they are told. The ATLA plays pimp, which fully overdetermines which part the law makers play.

This brings us to the medical malpractice reform legislation in The Great State of Maryland.

  • Maryland doctors are claiming loudly that they demand relief from malpractice costs or Judge Dreadwort had better have a good folk remedy for those troublesome kidney stones.
  • The ATLA and it's constituent lawyers have told the legislature in no uncertain terms that tort damages will not be capped under any circumstances.
  • The public does what the public always does according to the laws of economics. They demand total access to both legal and medical services and refuse to pay enough money to make both options possible.

The legislature does what Jimmy Carter did in the 1970's. They magically create more money so that the citizens get their Plantar's Warts healed and can dial 1-800-Bad-Back and sue if their foot itches afterward. The doctors get part of their insurance costs renumerated and the lawyers have enough money rolling in in damages to live like, well, rich legal attorneys. Everyone should go home and live happily eaver after.

Regretably, Santa Clause doesn't really exist and Governor Ehrlick is a mean old Republican who has no intention whatsoever of indulging such fantasies and seeing the world as the world is not. For starters, legislatures can't waive a magic wand and create more money. They have to tax somebody in order to expropriate those funds.

Even Robin Hood had to aim his trusty longbow at The Sheriff of Nottingham's head before he could go off and fund the widows and orphans. The legislatures used the dreaded HMOs as their archery target and imposed an insurance tax to rob Peter The Health Care Exec and pay Paul The Insurance Boss. This is where Governor Ehrlich had to become an inconvenience. He saw the bill as the buncomb scheme that it was and slapped his veto upon the bill with a flurish of press conferences filled with fulsome condemnation.

At this point the legislature had three options.

  • They could stiff the doctors an risk having them go elsewhere or try out new professions in large numbers. In essence, deny the public the maximum possible availability of private health care.
  • They could put a cap on liability damages. In essence not let the public and the attorneys ride the lawsuit lottery.
  • They could override the veto and stay out in never-never land where the votes are.

An elected legislature will tend to choose door number three, and this is what happened in Maryland. Governor Ehrlick has his veto overridden and the taxes went into effect. So what happens now that the money spiggots got opened?

  • Doctor's bills will go up. In all fairness, lawyers are not the only piglets oinking in Maryland. The doctors will hike their fees to get their share of the newly confiscated swag.
  • The lawyers will sue more often and go to great pains to remind jurors that the HMOs, not the physicians are the people paying.
  • The insurers will raise their rates whether the lawyers and doctors raise their rates or not. They see money on the table, just like everybody else.
  • The costs associated with health care in Maryland should skyrocket and three or so years from now, another intrest group will hit up the legislature for comprehensive tort reform.

The buck has successfully been passed.


As you may or may not already be aware, members of the Watcher's Council hold a vote every week on what they consider to be the most link-worthy pieces of writing around... per the Watcher's instructions, I am submitting one of my own posts for consideration in the upcoming nominations process.
Here is the most recent winning council post, here is the most recent winning non-council post, here is the list of results for the latest vote, and here is the initial posting of all the nominees that were voted on.

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