Public opinion polls continue to reveal that the majority of Americans are opposed to the current bills passed by both the House and Senate. There is adequate information posted elsewhere that this blog does not need to go into the detail of the pork, political paybacks and special interest favors packed into this 2,200 page behemoth bill.
However, what's the issue that really needs to be addressed that is completely ignored? TORT REFORM!
The legal industry is somehow flying under the radar on this issue. Legal costs associated with health care are skyrocketing at rates that nearly double the cost of medical products and services. Why? Because it's just too easy to file a frivolous lawsuit and be compensated.
I'm not denying that there are many valid cases where medical providers should be sued. Removing the wrong kidney, amputating the wrong limb and a long list of inexcusable mistakes should never be condoned, and should always be pursued to their resolution. But allow me to share a recent example of how absurd the process and industry has become.
A friend of mine sat on a jury for what he believed to be a frivolous malpractice case. The physician being sued had a stellar 35 year record and excellent standing in the community. He provided free health care for many, and reduced rates for others who fell on hard times. His patient sued for an obscure post operative complication that caused very little pain and was really quite insignificant.
In prosecuting the case the plaintiff's attorney presented a checklist of nearly 50 items, of which the physician might reasonably be expected to complete 20 to 30 in order to make the correct diagnosis, perform a corrective procedure and follow through to recovery. Because of the demands of the patient and his family the doctor completed every item but neglected just one. Accordingly, the judge instructed the jury that in his opinion they had no choice but to find the doctor guilty, which they reluctantly did.
During the penalty phase the jury concurred they felt the case was indeed frivolous, and they also believed they had been bullied by the judge. But they also had the latitude to determine zero to infinity for damages. They decided to award the plaintiff $5,000, and even that amount was untenable to most on the jury.
Several months later my friend read an article in the local newspaper. The plaintiff appealed the award and was granted an additional $78,000 for his legal fees incurred prosecuting the case. Apparently the trial judge was so quick to impose his form of justice he neglected to instruct the jury that state law required the plaintiff's legal fees to be recovered.
In summary, what took place was a man had a routine procedure, suffered a minor post operative complication that was immediately remedied. His doctor was required to pay $5,000, which he did. He chose to pay it out of pocket rather than file a claim against his malpractice insurance.
However, now faced with an additional $78,000 judgment he felt he had no choice but to file the claim. His carrier paid the assessment, but having also paid his legal fee of nearly $100,000 they subsequently doubled the doctor's malpractice premiums. The doctor, absolutely disgusted with the outcome decided to retire. The community lost:
- A true health care professional,
- A philanthropic pillar of the community for 35 years,
- The tax base generated by his own income,
- The tax base generated by the income of eight employees who were forced to find employment elsewhere.
Who benefited from the lawsuit? LAWYERS! First, let's not forget that the trial judge himself is a lawyer who is not immune from protecting the interests of his industry. The plaintiff's attorney was paid $78,000. The doctor's attorney was paid almost $100,000; so $175,000 was the amount of checks written by the insurance carrier. For what? A minor complication that was immediately resolved!
So what's your point Steve? Laws are created by lawyers, interpreted by lawyers and mostly benefit lawyers! Our present Congress, between the House of Representatives and the Senate is comprised of . . . you guessed it . . . 44% lawyers! Four of our past eight presidents are/were lawyers (Nixon, Ford, Clinton, Obama). Why would the Good Ole Boys Club ever want to change anything adversely impacting their industry? We have 5% of the world's population, 80% of the world's wealth (until it's effectively transferred to Mother Europe) and 90% of the world's lawyers.
In closing this post, not all lawyers are bad, just most of them. Not bad at what they do, they are bad, deceitful people without honor.
Consider this scenario - If we had a legal system which required a plaintiff to pay the costs of the defendant if their suit did not prevail, how many frivolous suits would be filed? In the above case that's actually what happened, but may not have if the trial judge did not exert undue influence on the jury. Had the jury been able to render a verdict without being intimidated by the judge they may very well have found the doctor not guilty. That being the case, if you were a plaintiff and knew it might cost you $75k to prosecute a case you had a slim chance of winning, would you spend the money, even for a $5,000 return?
In conclusion, the resolution to our nation's health care dilemma is far too complicated to legislate. Legislation will incur hundreds of millions in new taxes, create another new and unnecessary government bureaucracy, add to our unemployment statistics as thousands of small businesses will close their doors because they simply cannot absorb one more dime in overhead.
Wouldn't it be ironic if the majority of people put out of business by health care legislation were lawyers?
Not only do I know this account to be true, I had back surgery in 2000, and my neurosurgeon Dr. Richard Mendel informed me he would be moving to South Carolina because of the cost of rising malpractice insurance. More significantly, I had the surgery knowing he was moving because I believed in him.
Granted there are certainly many areas of our health care system that need repair and overhaul, but until we fix the underlying legal issues nothing else matters.
