My argument against Tort reform via malpractice caps

A good friend of mine recently put up a pretty long facebook screed about the state of the healthcare thing, and I felt the need to respond. I addressed the entirety of it in an email to him, but since I did all this research re: tort reform specifically I thought I'd share it with the masses.

Here's the TLDR version:

• Its anti-states rights. Many states already have malpractice damage caps and all states could implement them if it suited them.
  
• It provably doesn't lower malpractice insurance premiums according to the biggest malpractice insurer.
  
• It doesn't even show a correlation between existence of malpractice caps and the price of healthcare - again, many states already have caps and the existence of those caps does not equate to lower heathcare costs.
  
• It doesn't remove the primary incentive for junk prescriptions and tests - payola. Industry spends billions each year directly influencing doctors.
  
• It gives away patients rights after they've been crippled by negligent docs, even if a jury agrees that they should have damages awarded.

Enjoy!

[Do] Tort reform.. ie the millions that are spent on protective medical practice that doctors spend on covering their ass against lawsuits.

Tort reform is interesting in just how little it would actually do to fix most of the major problems with the system and how much it would cost us as patients.

starting off-


Of course the first argument is that there's really nothing preventing the states of the union from enacting their own versions of tort law, and naturally each state handles it pretty differently. Here's a nice guide as to what the ground rules are in each state.

The federalist argument is of course that States should get to decide what they want and not have tort laws dictated to them by Washington, and that is the current status quo. This allows each state to set up laws according to their own unique constituencies and encourages competition between states for the most effective laws. I'll admit that I'm not much of a federalist when it comes to public safety (though I am in other areas), but I'm just pointing out that the tort reform argument runs counter to the principles of capitalists and federalists because it asks Washington to set the tort laws uniformly for all states while removing the ability of states to offer competitive legislation.




moving on-

When evaluating any potential change you have to honestly evaluate what the specific change is, and look to concrete data. Texas, for example has pretty tight medical malpractice lawsuit caps. Texas also kills a lot of people in hospitals. Texas healthcare is also not measurably less expensive than in a state like Arizona, which does not cap malpractice suits. Here's a fun map of per capita health care expenditures by state.

Relevant data (referencing links given above):

• Texas caps malpractice pain and suffering awards at $250k
• per capita cost of healthcare in Texas $1728 (in 2004, best data I could find)

• Arizona does not cap malpractice on pain and suffering awards (Constitutionally prohibited there)
• per capita cost of healthcare in Az is $1479 in 2004

• The existence of a tight malpractice cap in Texas can't keep healthcare costs below what they are in Az, which has no cap.
  

or, to look at it another way:

• DC is far and away the most expensive district in the union in which to receive healthcare: $4081 per capita in 2004
• Heathcare in DC costs almost 3x as much as it does in Arizona
  
• Neither state has malpractice caps
• Almost every other state in the union has per capita healthcare costs in between these two states.

When you look at the data, there just is no clear correlation between the existence of malpractice caps and the price of healthcare to the end user.




continuing -


The arguments roots extend to the price of malpractice insurance. IOW, if you cap malpractice awards, then the price of malpractice insurance will go down, allowing doctors to charge less to patients. The problem is that the nation's largest malpractice insurer doesn't see it that way. Here's a quote from that article (emphasis mine):

GE Medical Protective's finding was made in a regulatory filing with the Texas Department of Insurance (TDI),in a document submitted by GE to explain why the insurer planned to raise physicians' premiums 19% a mere six months after Texas enacted caps on medical malpractice awards.

In 2003, Texas lawmakers passed a $250,000 cap on non-economic damage compensation to victims of medical malpractice caps after Medical Protective and other insurers lobbied for the change.

According to the Medical Protective filing: "Non-economic damages are a small percentage of total losses paid. Capping non-economic damages will show loss savings of 1.0%."

So what percentage of that 1% of insurance premiums do we expect the doctors to give back to the patients? Now given that we can certainly have a legit conversation about the state of malpractice insurance in this country, but the argument that capping malpractice awards does much for we the patients is pretty weak according the numbers provided by the insurers.

And then there's the reason for malpractice laws in the first place. If a doctor does a procedure on you and is grossly negligent, he can accidentally cripple you. In Texas there isn't much recourse if the doc you go to relieves you of your ability to use your legs. That gives lots of crappy docs lots of reason to come practice medicine here instead of in Arizona.




last one, I promise-


The last leg of the tort reform argument is that doctors are forced to practice defensive medicine in order to avoid lawsuits. I'll not argue that this doesn't exist, but I will argue that there are better ways to address the problem than capping malpractice awards.

What are the incentives for a doc to order a questionable test on a guy?

• minesweeping for anything he may have missed (science is hard)
  
• habit (dude has chest pain, lets get an ekg)
  
• fear of lawsuits
• and of course - money

Generally the point I'm going to make is that lots and lots and lots and lots of the money that pharmaceuticals and medical equipment manufacturers make goes to docs in the form of direct marketing. This means that the megacorp like Pfizer will send a rep to talk with a doc, usually by taking him out to lunch. He'll give him some free samples as part of a "clinical trial," and will encourage the doc to prescribe that drug to his patients in the future. Then he'll set up another meeting in 2 weeks. Oh yeah, and there are 1400 of these reps, doing this exact job, for every single doctor in this country.

Here's a fun exercise - Ask a doc when was the last time he bought lunch for himself. I'll put a couple of quick numbers in context (emphasis mine):

Currently, there are approximately 100,000 pharmaceutical sales reps in the United States^[7] pursuing some 830,000 pharmaceutical prescribers. A pharmaceutical representative will often try to see a given physician every few weeks. Representatives often have a call list of about 200 physicians with 120 targets that should be visited in 1-2 week cycles.

The United States has 90,000 pharmaceutical representatives or 1 for every 6.3 physicians.^[3]

Pharmaceutical company spending on marketing far exceeds that spend on research.^[14][3] In 2004 in Canada $1.7 billion a year was spent marketing drugs to physicians and in the United States $21 billion were spent in 2002.^[4] In 2005 money spent on pharmaceutical marketing in the US was estimated at $29.9 billion with one estimate as high as $57 billion.^[3] When the US number are broken down 56% was free samples, 25% was detailing of physicians, 12.5% was direct to consumer advertising, 4% on hospital detailing, and 2% on journal ads.^[4] In the United States approximately $20 billion could be saves if generics were used instead of equivalent brand name products.^[3]

Currently, there are approximately 100,000 pharmaceutical sales reps in the United States pursuing some 120,000 pharmaceutical prescribers.^[28] The number doubled in the four years from 1999 to 2003. Drug companies spend $5 billion annually sending representatives to physician offices. Pharmaceutical companies use the service of specialized healthcare marketing research companies to perform Marketing research among Physicians and other Healthcare professionals.

What happens is that every doctor in every hospital in every state has every lunch and many dinners bought and paid for by the pharmaceutical and medical equipment industry. They are also legally allowed to accept gifts like junkets and even cash/real estate from these entities. In return, try to walk into a hospital, make up and complain of any ailment, and walk away without a prescription for something. I'll bet you can't do it.


So what happens when we remove the fear of lawsuit incentive from docs? Well, we've left intact the biggest motivator that they have to continue with the junk tests and prescriptions - the free lunch, all while removing the ability of patients to receive the resources needed to cope with getting crippled - even if a jury of their peers deems that type of thing appropriate. Tort reformists would prefer Washington to make those decisions. The net effect is that you get what you see with the states that already have caps - no discernible effect on healthcare costs.

funny

Lol.

the new Tim Tebow

Color me deeply, deeply skeptical.

To summarize, the problem for Tebow is that, because Florida placed so much stock in his running game, they never really developed some fundamental skills a quarterback has to have in the NFL, where being a rushing quarterback is not an option. Tebow took all his snaps from the shotgun, so his footwork on the 3/5 step drop is terrible.

And then there's that throwing motion.


Quarterbacks hold the ball at chest level after the snap. With most of them, when their man is open, they pull the ball back and up behind their ear, and from there go into their forward throwing motion. Tebow drops the ball down below his waistline and winds way back and up, doing a full 360 degree motion with his elbow. What that means is that Tebow holds onto the ball much longer than his peers and (supposedly) delivers a much lazier spiral. In a league where there's only a split second window where your man is open and you have to get him the ball in the blink of an eye, an elongated throwing motion can be a killer.

Of course, a similar critique was leveled at Vince Young, and it stopped him neither from getting drafted early in the first round nor from performing relatively well as an NFL quarterback (after some fits and starts, anyway). Admittedly, Tim Tebow is probably better than Young was. Maybe Tebow will come out of this training a fully formed NFL quarterback, but my guess is he's still a pretty major project for an ambitious coach with a healthy if aging franchise quarterback.

the myth of welfare

The major justification for cutting unemployment and welfare programs in the 1990's and 2000's was to get John Q. Taxpayer out from under the collective dead weight of Reagan's welfare queens.

As we're discovering now, however, if you're intent on cutting these people out, there's really only one way to do it: cap unemployment benefits, either in terms of money or time (i.e., you only get $X worth of benefits per year or you can only draw money for X weeks every year). The problem with capping benefits, as perfectly depicted in this NYT piece, is that you throw out the baby with the bathwater. When the economy goes in the toilet (as it does every 10 to 20 years at least) the groups who are the first to lose their jobs and the last to find new ones rely on the long-term unemployment benefits that get the axe from the Reaganites. These people, however, are overwhelmingly from very groups that welfare was designed to protect in the first place: the poor, the unskilled, the old, and the sick, rather than some mythical group of lazy, yet eminently hireable able-bodied adults.

Put another way, the goal of welfare programs is to prevent homelessness and destitution. At any point in time when the economy is running short of full employment, however, benefit caps mean welfare cannot protect those in the most need of it. The choice, then, is between abiding some hireable people living off government largess on the one hand, and letting old and sick people become homeless on the other.

she won't have to worry about being called "pc"

I don't get offended by right wing shock talk much anymore. I get that 50% of it is just not "getting" something and 50% is just trying to get people to rile people up.

Sometimes, however, a slogan or image breaks through.

I actually feel pity for the girl more than anything. I'm one of those people that carries their embarrassing moments with them their entire life. I said some hateful stuff in my ignorant youth, and I still feel a twinge of humiliation anytime I'm reminded of those words, no matter if I said them all the way back in junior high. Generally speaking, though, I can at least take solace in the fact that I'm the only one who remembers them and they were never written down or videotaped.

I also think that the younger you are, the more likely you are to meet a gay person that you come to respect, or on the other hand have a good friend or beloved family member come out. Thus bigots become allies. This picture, however, is probably never going away; in fact, I'd wager that she's already identified herself with it already, on Facebook or some blog somewhere.

One day this woman is going to feel shame over this picture, and will have to live with the fact that it is forever linked to her name anytime anyone googles her.

the stimulus worked

So says David Leonhardt of the New York Times. Hard to run on "it could have been worse, trust us," but it's good to know it was the right decision.

If there's anything I hope people learn from all the discussions of economic stimulus and tax cuts and budgets, it's how connected the federal budget is to your schools, your roads, your friends' and family's and neighbors' jobs, and your local services that you rely on every day. A tremendous amount of federal taxpayer money flows down to the state and local level. Add in Medicare and Social Security, which directly benefit pretty much every person you know over 65, and we're talking about most of the federal budget.

taxes only fund waste

Mishawaka cutting twenty five teachers. In a town of fewer than 50,000 people, that's a lot!

When the local government is short $4.7 million over 2 years, this is what it cuts, not some mythical victimless "government waste." Twenty five families will be pushed into financial upheaval, with the possibility in some cases of mortgage default and bankruptcy. Classrooms will grow that much larger and the other teachers will have to pick up the slack with classes that much more difficult to manage. Students all over the school district will get that much less individual attention.

The amount of money Mishawaka residents will save per capita on average: $51 per year. About $4 a month.

ABTs

Go figure. I find the newest rage in absurd, overmeated party food right after the Superbowl.

Don't worry, locals; they'll be appearing at my house sometime this summer.

NCAA: celebration penalty may negate touchdowns next year

From AP(via Matt Hinton):

If passed, players who draw flags for taunting gestures on their way to a touchdown would have the penalty assessed from the spot of the foul, taking away the score. Penalties that occur in the end zone would continue to be assessed on the extra-point attempt, 2-point conversion try or ensuing kickoff.

The change would take effect in 2011 and on the NCAA's web site, a release said the proposal received near-unanimous support.

"Taunting and prolonged individual acts have no place in our game, and our officials have generally handled these rules well," said former Oregon coach Mike Bellotti, the committee chair. "This is just another step in maintaining our game's image and reflecting the ideals of the NCAA overall."

My opinion on rules in games is that you shouldn't adopt a rule you don't intend to enforce. More specifically, you shouldn't adopt a rule if you aren't willing to change the outcome of the game over it.

In the last season or two we've seen multiple instances of celebration/taunting calls that gave the other team a chance to win after the fact, and the outcry was so intense in one case (A.J. Green's go-ahead TD against LSU) that the SEC fined one of its own refs and forced him to apologize. Imagine for a second the outcry if such of touchdown were called back outright and the other team holds on to win. Imagine that happening in the final minutes of the SEC championship or the Rose Bowl or, God forbid, the National "Championship" Game.

I get that this is a rule specifically against taunting, rather than the general endzone merriment and evil, evil ball tossing of the Jake Locker variety, but Green's infamous unsportsmanslike conduct flag was supposedly for taunting en route to the goal line. Even by the standards of college football rules, taunting is in the eye of the beholder, especially considering the trash talking and psychological warfare that likely goes on out of earshot of the microphones.

This rule is just dying to cause the NCAA more headaches.

Tim Tebow: even his ads prefer procreation

Apparently there will be a second, pre-game version of the already infamous Tebow/Focus on the Family Superbowl ad:

There's a new Super Bowl surprise from Focus on the Family: a second ad.

The evangelical group that bought ad time in the CBS game telecast will announce today that it has bought time in the pregame show to air a second ad four times.

The new ad also features star quarterback Tim Tebow and his mother, Pam. It was filmed in Orlando last month at the same time as the group's controversial — though yet unseen — in-game ad.

Apparently they will both be of the "choose life" message variety that, though intended as a witty riposte from the anti-Roe crowd, has on occasion been embraced by members of the other side as a message that still preaches choice.

I'm increasingly skeptical on that point, but the heretofore detente on that message is important to point out here.

Also important to point out, however, are the implications of the Tebow ad outside of those considerations. For those who don't know the story, I'll quote his Wikipedia page:

Tebow was born on August 14, 1987 in Makati City in the Philippines, to Bob and Pam Tebow, who were serving as Christian missionaries at the time.[1][7] While pregnant, Pam suffered a life-threatening infection with a pathogenic amoeba. Because of the drugs used to rouse her from a coma and to treat her dysentery, the fetus experienced a severe placental abruption. Doctors expected a stillbirth and recommended an abortion to protect her life.[1] She carried Timothy to term, and both survived.

So Mrs. Tebow essentially undertook a significant risk to her own life to have Tim. It's moving, and of course things worked out wonderfully for her and we're all very happy for her. She's very lucky.

Nevertheless, is it really responsible to advocate for women to hold out on life-saving procedures on the off chance that they'll both survive anyway and have super-moral, Heisman-winning sons? The Tebows rolled the dice on her life to save his, and happened to win big that time, but many others wouldn't be so lucky. I wonder if Mrs. Tebow or any of the people who are using her story to push their political agendas have considered the possibility of some woman in her position acting on her advice, and instead of delivering the next Tim Tebow, dying from complications while giving birth to a stillborn baby. God does not save every woman with a placental abruption, let alone every baby.

the Bill of Rights applies to everyone, not just citizens

I'm glad to see Greenwald drop-kicking this old right wing chestnut, but I'm a little surprised that it took so long to see such an article.

The Bill of Rights applies to everyone within the jurisdiction of the American legal system. It does not matter whether they are citizens or foreign nationals because the Bill of Rights makes no such distinctions and court precedence has held as much since at least the 19th century. Greenwald pulls up a court decision where even Antonin Scalia admits as much.

Pointing out the absurdity of such a claim, Greenwald asks:

There are millions of foreign nationals inside the U.S. at all times -- not only illegally but also legally: as tourists, students, workers, Green Card holders, etc. Is there anyone who really believes that the Bill of Rights doesn't apply to them? If a foreign national is arrested and accused by the U.S. Government of committing a crime, does anyone believe they can be sentenced to prison without a jury trial, denied the right to face their accusers, have their property seized without due process, be subjected to cruel and unusual punishment, and be denied access to counsel? Anyone who claims that the Constitution only protects American citizens, but not foreigners, would necessarily have to claim that the U.S. Government could do all of that to foreign nationals. Does anyone believe that? Would it be Constitutionally permissible to own foreigners as slaves on the ground that the protections of the Constitution -- including the Thirteenth Amendment -- apply only to Americans, not foreigners?