Abusive lawsuits?
Okay, speaking of high medical costs, I have to say something about caps on medical liability lawsuits. I don't like 'em.
I am highly suspicious of any attempt to put limits on the ability of individuals to seek and obtain redress of wrong resulting from another's action. The civil court is the last resort for non-violent resolution of conflict among citizens, and if a citizen cannot receive full compensation for deliberate or negligent harm to him, can we blame him for seeking extra-legal means to do so?
The main complaint is that damages awarded by juries are too high, and that, therefore, damages must be limited. But to what level? Santorum's proposal, as reported by Nightline, is $250,000. But look at the costs for organ transplants. If the patient doesn't have to pay, insurance companies still do. The averages may fall under a quarter million, but what about the high end for liver transplants ($367,000)? UnitedHealthcare, in its policies that cover heart transplants, cover up to $1,000,000, so there must be costs relating to the average $148,000 for that procedure. What about missed work for somebody in the $40/hour range? What about the legal costs of a trial to secure that amount? What about inflation between the time the cap was set and the time the trial occurs?
In terms of other liability, here's an illustration. Suppose a developer builds 300 $200K houses on a plot of land that has unreported toxic waste on it -- or builds the homes such that they cannot be lived in. Would $60 million to fully reimburse all those homebuyers be considered excessive? Suppose a global company knowingly sells a product sufficiently flawed to, say blind or maim folks who use it: what are the lifetime costs of such injuries, and how many individuals might be supposed to have to pay them? If a thirty-year-old person goes blind, how many years of assistance, training, material aids shall such individual require over the course of the life remaining to him? Is $1 million ($25,000/year for the next 40 years) unreasonable? Suppose 50,000 individuals are so injured; or 100,000; or 500,000 -- would it be unfair to required the corporation to pay $50 billion dollars in settlement?
There is a sort of self-devouring serpent aspect to medical liability, of course, as damages are likely to be used to pay somebody else to repair whatever harm stimulated the suit. Surgeons or doctors who perform such services have to pay malpractice insurance, which rises a certain amount for all to cover large awards. I mention that to demonstrate my cognizance of it. It doesn't change the reality that, if somebody gets broken by a negligent doctor, there's still a certain amount that fixing the damage is going to cost. Capping awards may bring certain doctors to drop their rates for plaintiffs, but more than likely nobody will do anything for the amount of money left over after legal fees.
What all of this really represents is the complexity of our society. The illustrations above are all too possible -- imagine if Union Carbide's plant had been in Hoboken instead of Bhopal: what would the actual calculable damages have been? -- and I here add more. If you walk down the street, or even if you ride a bike, allowing your mind to wander may cause you to bump into somebody, but is unlikely to cause more than a broken bone to the object of the impact. Allowing your mind to wander while driving can kill somebody. Defective products can be produced one at a time by an artisan, or hundreds a day by a factory, or hundreds of thousands a day by a thousand factories -- scaling up the number of persons affected. A defective hammer causes less actual damage than a defective gas line on your furnace -- or battery in your pacemaker. A doctor who lances a boil is less likely to threaten your quality of life than a doctor who opens up your skull to remove an operable tumor. It is now possible for one person to do harm completely out of proportion to his own action, because an individual can control machinery that can exert . . . lots and lots of force or very little force in an extremely vulnerable area.
This does not mean that we should limit just compensation to those wronged by an individual's actions just because those harmed are so numerous and that individual is at the top of a large multinational corporation. What it means is that some activities, some systems, may be inherently too risky to be sustained. A CEO who claims not to know what his underlings are doing isn't mitigating his liability, but illustrating his foolishness. Sure, he can't know what everyone in his company is doing -- but a CEO must bear responsibility for it. That's what a CEO is. Corporations incapable of regulating their actions sufficiently to prevent harm to individuals MUST BE DESTROYED, NOT CODDLED. The sudden disappearance of such a corporation represents opportunity to competitors, who, in expanding, shall probably hire all those who lose their jobs when the company folds -- smaller competitors, each capable of doing less harm on its own. Or, perhaps, whatever the corporation was doing shouldn't be done.
It's not my intention to be a neo-Luddite, here, but the same idea applies to medicine. If a procedure is too fraught with risk, perhaps it shouldn't be performed unless the alternative is more risky. If a doctor botches a non-risky procedure, well, the doctor probably shouldn't practice anymore. Babies can be born without doctors, nurses, or anybody 'ceptin' the momma, and although complications in such a case are fatal to baby and mother, well, some births aren't viable.
Or, more reasonably, patients and juries must be properly educated to recognize that risks can only be managed, not eliminated -- for example, in the risky procedures from the previous paragraphs. It's interesting, therefore, that the folks I've heard pushing for medical tort reform are the kinds of folks who advocate policies that can only lower the level of science education: ignorance-based sex education, intelligent design, etc. The individual's right to be fully compensated for harm to him must not be impaired simply because of the ignorance of his fellow citizens.
Are some lawsuits frivolous? Of course. Are some awards ridiculous? Undoubtedly. But the resolution is found in a case-by-case manner, not with a blanket limit on awards. The most I'll accept is the requirement of unanimity in civil juries with regard to the binary question of culpability of the defendent, and even the scale of money to be awarded -- only so high as all jurors present approve. A judge and jury must be deemed capable of determining the validity and value of the case that it adjudicates. The juror is the ultimate guardian of individual liberties: randomly selected, unbeholden to any constituency save his conscience, deciding on only one case. Unanimity among a group of such individuals is the closest we can get to objective validation of a given interpretation of a specific case. Abstract, I know, but a unanimous juror is much less corruptible than a legislator, a judge, or a president. The Libertarian Party calls for full liability for individual actions, and where such liability is decided must not be the legislature, but the courtroom, because each individual is unique, and each action or case, a confluence of unique individuals and events, is best judged by a body formed specifically and only to decide it. Limiting liability by statute can only license individuals to harm others by rendering such individuals immune to full responsiblity for their actions.
But only if those individuals are wealthy enough, right?
I am highly suspicious of any attempt to put limits on the ability of individuals to seek and obtain redress of wrong resulting from another's action. The civil court is the last resort for non-violent resolution of conflict among citizens, and if a citizen cannot receive full compensation for deliberate or negligent harm to him, can we blame him for seeking extra-legal means to do so?
The main complaint is that damages awarded by juries are too high, and that, therefore, damages must be limited. But to what level? Santorum's proposal, as reported by Nightline, is $250,000. But look at the costs for organ transplants. If the patient doesn't have to pay, insurance companies still do. The averages may fall under a quarter million, but what about the high end for liver transplants ($367,000)? UnitedHealthcare, in its policies that cover heart transplants, cover up to $1,000,000, so there must be costs relating to the average $148,000 for that procedure. What about missed work for somebody in the $40/hour range? What about the legal costs of a trial to secure that amount? What about inflation between the time the cap was set and the time the trial occurs?
In terms of other liability, here's an illustration. Suppose a developer builds 300 $200K houses on a plot of land that has unreported toxic waste on it -- or builds the homes such that they cannot be lived in. Would $60 million to fully reimburse all those homebuyers be considered excessive? Suppose a global company knowingly sells a product sufficiently flawed to, say blind or maim folks who use it: what are the lifetime costs of such injuries, and how many individuals might be supposed to have to pay them? If a thirty-year-old person goes blind, how many years of assistance, training, material aids shall such individual require over the course of the life remaining to him? Is $1 million ($25,000/year for the next 40 years) unreasonable? Suppose 50,000 individuals are so injured; or 100,000; or 500,000 -- would it be unfair to required the corporation to pay $50 billion dollars in settlement?
There is a sort of self-devouring serpent aspect to medical liability, of course, as damages are likely to be used to pay somebody else to repair whatever harm stimulated the suit. Surgeons or doctors who perform such services have to pay malpractice insurance, which rises a certain amount for all to cover large awards. I mention that to demonstrate my cognizance of it. It doesn't change the reality that, if somebody gets broken by a negligent doctor, there's still a certain amount that fixing the damage is going to cost. Capping awards may bring certain doctors to drop their rates for plaintiffs, but more than likely nobody will do anything for the amount of money left over after legal fees.
What all of this really represents is the complexity of our society. The illustrations above are all too possible -- imagine if Union Carbide's plant had been in Hoboken instead of Bhopal: what would the actual calculable damages have been? -- and I here add more. If you walk down the street, or even if you ride a bike, allowing your mind to wander may cause you to bump into somebody, but is unlikely to cause more than a broken bone to the object of the impact. Allowing your mind to wander while driving can kill somebody. Defective products can be produced one at a time by an artisan, or hundreds a day by a factory, or hundreds of thousands a day by a thousand factories -- scaling up the number of persons affected. A defective hammer causes less actual damage than a defective gas line on your furnace -- or battery in your pacemaker. A doctor who lances a boil is less likely to threaten your quality of life than a doctor who opens up your skull to remove an operable tumor. It is now possible for one person to do harm completely out of proportion to his own action, because an individual can control machinery that can exert . . . lots and lots of force or very little force in an extremely vulnerable area.
This does not mean that we should limit just compensation to those wronged by an individual's actions just because those harmed are so numerous and that individual is at the top of a large multinational corporation. What it means is that some activities, some systems, may be inherently too risky to be sustained. A CEO who claims not to know what his underlings are doing isn't mitigating his liability, but illustrating his foolishness. Sure, he can't know what everyone in his company is doing -- but a CEO must bear responsibility for it. That's what a CEO is. Corporations incapable of regulating their actions sufficiently to prevent harm to individuals MUST BE DESTROYED, NOT CODDLED. The sudden disappearance of such a corporation represents opportunity to competitors, who, in expanding, shall probably hire all those who lose their jobs when the company folds -- smaller competitors, each capable of doing less harm on its own. Or, perhaps, whatever the corporation was doing shouldn't be done.
It's not my intention to be a neo-Luddite, here, but the same idea applies to medicine. If a procedure is too fraught with risk, perhaps it shouldn't be performed unless the alternative is more risky. If a doctor botches a non-risky procedure, well, the doctor probably shouldn't practice anymore. Babies can be born without doctors, nurses, or anybody 'ceptin' the momma, and although complications in such a case are fatal to baby and mother, well, some births aren't viable.
Or, more reasonably, patients and juries must be properly educated to recognize that risks can only be managed, not eliminated -- for example, in the risky procedures from the previous paragraphs. It's interesting, therefore, that the folks I've heard pushing for medical tort reform are the kinds of folks who advocate policies that can only lower the level of science education: ignorance-based sex education, intelligent design, etc. The individual's right to be fully compensated for harm to him must not be impaired simply because of the ignorance of his fellow citizens.
Are some lawsuits frivolous? Of course. Are some awards ridiculous? Undoubtedly. But the resolution is found in a case-by-case manner, not with a blanket limit on awards. The most I'll accept is the requirement of unanimity in civil juries with regard to the binary question of culpability of the defendent, and even the scale of money to be awarded -- only so high as all jurors present approve. A judge and jury must be deemed capable of determining the validity and value of the case that it adjudicates. The juror is the ultimate guardian of individual liberties: randomly selected, unbeholden to any constituency save his conscience, deciding on only one case. Unanimity among a group of such individuals is the closest we can get to objective validation of a given interpretation of a specific case. Abstract, I know, but a unanimous juror is much less corruptible than a legislator, a judge, or a president. The Libertarian Party calls for full liability for individual actions, and where such liability is decided must not be the legislature, but the courtroom, because each individual is unique, and each action or case, a confluence of unique individuals and events, is best judged by a body formed specifically and only to decide it. Limiting liability by statute can only license individuals to harm others by rendering such individuals immune to full responsiblity for their actions.
But only if those individuals are wealthy enough, right?
posted by heavynettle at 22:03
3 Comments:
The Oregon Health Plan is a government-based system that might transfer to the private sector in some fashion. To simplify it, the state of Oregon codified and sorted each medical procedure based on cost. What the state will and won't pay for in its health plan is then determined by how much tax money is allocated to cover medical bills:
If the public pays $500 each, recipients can have procedures 1 through 100; if the public only wants to pay $250 each into the pool, recipients have to make due with procedures 1 through 50. In the second case, if the liver transplant you need is procedure #51, better look elsewhere for funding or you die. This system led to a heart-breaking case in which a young girl with a congenitive disorder was denied funding for a multiple lung & heart transplant. In her case, a private donor stepped in and paid for the operation, but surely there are cases where publicity was not so dramatic and people of limited means died from the rationing.
But the people in the state knew exactly what they were paying for and what they were getting (I say "were" because the system is slowly falling apart under legislative tinkering.)
In the private sector, medical insurance could be similarly tiered: buy Plan A and you get procedures X, Y, and Z; buy Plan B for less money, and you only get X and Y. This lets people calculate risks/benefits and decide accordingly. Of course, most people would opt for lower rates and lower coverage, and end up on the street after any catastrophic illness. But still, having access to some manner of discounted, no frills health care (as opposed to comprehensive health care), while not ideal for anyone might go to some degree in helping out the millions of people who currently have no health insurance or ability to pay as they go.
As for the children of the poor, I personally support the tyranny of taxation to create funds for them--they don't enjoy the benefits of citizenship and are not deemed legally competent to make decisions for themselves (even if they had the money), and it is in our collective best interest to make sure children suffer as little as necessary as a result of their parent's economic state. In short, I think their needs to be a bottom below which children are not allowed to sink; and I support taking taxes to make this happen, either by the government providing payments to providers or by offering bids to insurance agencies to provide private accounts funded with government stipends.
As you say, we shouldn't aim for perfection, but we should try to make things better.
I had this link in the previous post, but I provide it here for convenience: it provides some perspective on why medical costs are not known before service is provided. http://www.econlib.org/library/Enc/HealthInsurance.html.
Interesting link. I have to wonder what the bachelor farmers in Minnesota do with all their government subsidized hair pieces.
One thing I guess I hadn't thought about is genuine surprises in medicine. If my mechanic gives me an estimate, then finds additional problems, I can always choose when or whether to have the additional work done. If someone has my chest cut open and discovers I need something extra, I really don't want them stopping to get authorization.
For what it's worth, malpractice lawsuits that are set up to result in monetary damages instead of loss of license due to incompetence, can't help. Some states have no specialists in certain branches of medicine due to doctors' insurance requirements. While I can't quanity it without research, I know firsthand that many medical lawsuits are without merit, and are simply filed as "nuisance suits" that generate money because they're cheaper to pay off than to fight. If each medical lawsuit filed ended in a review of the doctor's medical license AND the plaintive's lawyer's license (especially if the suit is thrown out), there might well be more money on hand for people like the guy in Florida who had the wrong foot amputated, and we could have more sympathy for sharing the costs of his injury through higher premiums.
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