[tzs]

"Tort reform" can seriously screw over people, because the parties that tend to favor tort reform (by which they mean greatly limiting the ability of people to sue and/or the amount they can win if they do sue) also tend to favor limiting government regulation and oversight. That can leave nothing to compensate for the removal of the deterrence factor that the threat of lawsuits provides against bad corporate or professional behavior.

A sad example is provided by Texas. Protection against bad doctors was provided in Texas by three things: the Texas Medical Board, malpractice suits, and hospital managers. The legislature greatly limited the amount patients can win in malpractice suits, and they made it so hospitals cannot be held liable for hiring incompetent doctors unless the plaintiff can prove the hospital knew the doctor was an extreme risk and ignored this--and they made it so the plaintiff usually cannot get access to the documents that would be needed to prove this.

This shifted most of the burden of protecting Texans from bad doctors to the Texas Medical Board, which was not designed for that. It was more designed for licensing and ensuring that doctors keep with standards, not for investigating bad doctors. The Medical Board was not given any more resources to deal with this new and heavy workload, and so bad doctors could practice much longer than they would have been able to before the legislature decided to do their tort reform.

This article on the Dr. Christopher Duntsch case shows who wrong this can go: http://www.texasobserver.org/anatomy-tragedy/

[spikels]

Nice theory but the reality is quite different. Medical care is far from a solved problem. For example if you are a teenager who gets an aortic aneurism (literal your heart is about to explode) in a car accident only 50% will survive even with the best care. How can cardiac surgeons afford to save half of these people if they know they will probably be sued by many of the other half with Texas juries awarding millions in damages for many of these statitically unavoidable deaths? They can't and neither can their insurers.

For decades Texas juries were awarding so much money so often it became impossible for many high risk specialties, such as delivering babies (think of the downside versus upside), to get insured. In 2000 around a quarter of doctors in Texas were being sued for medical malpractice. Most insurance companies stopped writing insurance for doctors in Texas and the few remaining cooperatives faced bankruptcy. This is why both the Texas legislature and Texas voters (Prop 12) decided to limit damage awards in 2003 to what is now around an inflation adjusted $2 million per victim. Similar things happened in other states with California leading the way in the mid-1970s with a even more restrictive law (no inflation indexing - still the same $250,000 cap as 40 years ago)[1].

Remember the Texas lawyers and juries who have pretty much ruined the US patent system. I that who should an best police doctors? The Texas Medical Board seems like a pretty good approach: people with actual medical training and experience reviewing complaints about doctors. Maybe there is something better for getting rid of incompetent doctors than the Texas Medical Board (ideas pleae?) but unrestricted litigation proved unsustainable.

[1] http://en.wikipedia.org/wiki/Medical_Injury_Compensation_Ref...

[tzs]

The Texas limit on non-economic damages is still $250k. It is not adjusted for inflation [1]. It's only the limit on total damages in a wrongful death suit that is indexed for inflation. Punitive damages are limited to $200k or twice the total of economic and non-economic damages up to a max of $750k. These also are not indexed. Here is what Texas defines as non-economic damages [2]:

"(12) "Noneconomic damages" means damages awarded for the purpose of compensating a claimant for physical pain and suffering, mental or emotional pain or anguish, loss of consortium, disfigurement, physical impairment, loss of companionship and society, inconvenience, loss of enjoyment of life, injury to reputation, and all other nonpecuniary losses of any kind other than exemplary damages."

[1] http://www.legalmatch.com/law-library/article/texass-cap-for...

[2] http://www.statutes.legis.state.tx.us/Docs/CP/htm/CP.41.htm

[hswoo2]

In Australia if you had an aortic aneurism such that it was highly likely for you to die anyway it is highly unlikely for you have any claims in the tort of negligence as it requires a gross negligence on the part of the doctor such that it has a substantial link to the causation of the death. There also defences of necessity - that is the person is dying therefore it is necessary for the doctors to take all measures to save the patient. Thus it is probably significantly difficult for a person to be successful in medical malpractice unless it was blatantly largely caused by the doctor alone.

I also would guess that the US would have a similar legal system, which allows for such defences from such claims.

It seems that if courts are paying out too much this is not an issue to do with people making frivolous claims and cashing in but with the way the judiciary is deciding on the claims. If it was more difficult for claims to be successful in court this would stamp out such claims instead of imposing monetary caps which don't allow for the flexibility to compensate each individual case.

I find it strange that the legislature is getting involved in an area which is really up to the judiciary to perform its function...

[jasonwocky]

The TMB taking this responsibility seems workable on face value; in a lot of ways, this correlates with how many European nations handle consumer protection: fewer lawsuits are permitted, but the bureaucracy increases its responsibility and authority. It seems like a pretty straightforward tradeoff with no obvious answer; just a tradeoff curve.

When it fails is when, as grandparent indicates, the bureaucracy (TMB in this case) wasn't given enough additional resources to handle the increased workload.

[fnordfnordfnord]

>Remember the Texas lawyers and juries who have pretty much ruined the US patent system.

Come on that's not fair. Companies shop for the most technically mal-adept cohort to decide their cases, because they strategize that they can hire a more persuasive lawyer. The residents of East Texas didn't design the legal system that surrounds patent disputes. This is a weakness in the law.

[lifeisstillgood]

Don't get me wrong but isn't this the fault of the juries? Who by the way must also be the voters?

I mean if you are happily awarding damages to heart surgeons who only save half their patients when the rest of the planet does not better, then the problem is in the jury box? no?

[dfc]

  > Who by the way must also be the voters?

I am assuming this was a question and not a passive aggressive taunt. The answer is "No, it is not the case that being on a jury is proof that the juror has voted in an election." Many states use voter registration rolls as an input to the jury duty selection process but I can not find any that screen potential jurors based on actually participating in an election. Furthermore voter registration is not the only way that a citizen can end up being called for jury duty; states often use other DBs eg DMV, Hunting/Fishing licenses, etc for jury duty.

[lifeisstillgood]

Not meant to be P-A taunt, though hell this is the Internet so reasonable supposition :-)

No it was really "the public" I meant. Voters, jurors, us in other words. If Texas juries in one county are making patents a laughing stock, it really is upto the rest of us - either in that county, or in juries in other counties and countries, to change that. Or perhaps vote it out of existence. It just seems to me that we read an article and get the "something must be done"'feeling, and are happy when the something does not involve us, hard work, care or a long time. Yet those something's rarely work out.

in short, the current problem with patents is not the fault of various jurors and voters in a small part of Texas. it's our fault.

[dfc]

Okay, I am in complete agreement with this sentiment. Where I disagree is with the notion that jurors and voters are equivalent and/or using the two terms as if they are interchangeable. I think it would be interesting to compare the demographics of juries vs voters.[^1] I have a sneaking suspicion that the two populations are dramatically different.

[^1]: I posted a question at the SX for politics but I have never had much luck there. http://politics.stackexchange.com/q/3218/1926

[lifeisstillgood]

Well I have only ever been in one population to be honest, so maybe. But it is probably pretty random, so I would be quite shocked if there was a dramatic difference in demographics of both.

[rayiner]

The other thing is that common attempts at tort reform like damages caps address exactly the wrong problem. You're worried about frivolous suits, but the ones where juries are persuaded to award large damages are the least likely to be frivolous. Its good to note that BP had a limitation on damages that was like $50 million, which they waived.

[brownbat]

Yeah, tort reform usually seeks to limit the punitive damages designed to make large institutions actually notice when they lose a lawsuit.

Without such penalties, there's a reduced incentive for administrators to notice that, say, surgeons are frequently leaving scalpels in patients. [1]

I get that people have an adverse reaction to plaintiffs striking it rich (not that they really are). But what tort reformers don't realize is that the perceived unfairness of jackpot lawsuits might actually be discouraging juries from using punitive damage amounts that would actually change corporate behavior.

We might get more appropriate incentives for businesses if we said, "Ok, the plaintiff gets made whole, even for pain and suffering, maybe the lawyers get paid, but after that, punitives go to the state." The state could use the funds to educate or prevent harms similar to whatever most of the lawsuits are about, or set up a fund to compensate others harmed by the most common dangerous practices.

It'd lead to damage awards that could actually change business behavior, fewer perceptions of unjust plaintiff enrichment, and a better balance sheet for the state or state programs designed to reduce the harms all at the same time.

[1] http://www.everydayhealth.com/healthy-living/surgeons-leave-...

[qwerta]

I have friend in Czech republic. Local hospital (or butchery as she called it) screw up routine procedure, so she gave birth in 7th month and can not have more babies.

On damages she would get around $10.000, perhaps 5x more if she is celebrity with connections. That is not much money even in here, house costs usually around $100.000.

I think US will have to give up right to sue in medical care. If you count expenses customers will still get better care. The amount you save on lawyers could go towards better care. And if doctors screws up, you will have good medical system to fix most damages, rather then going to court with some theoretical chances.

And what could prevent bad doctors? Make gross neglect minor criminal offense. Doctor could go to jail for couple of weeks and loose its license. If enforced this would filter out bad doctors pretty quickly. And it could also force real safety practices such as recording procedures and operation check lists.

[stuki]

Reputation systems, reviews and properly skeptical consumers, are what to aim for, in determining who is good and who is not. Whether for restaurants or doctors. Not frightfully pricey lawyers and other coercive, after-the-fact institutions. And, in the most egregious of cases, say McDonald's spiked granny's coffee with a hand grenade, the criminal courts get involved as a last ditch anyway.

Reliance on civil courts may sound attractive to the naive, but the lawyers and institutions involved, are just as single mindedly focused on their own personal gains, financial and in prestige, as either party to the original dispute. It's not that they are necessarily systemically partial to one side or the other, but rather that they are partial to making the fight as acrimonious and expensive as possible. As that is, after all, their "side."

[karmajunkie]

The problem with that theory is that many doctors require patients to sign documents that prohibit online reviews, and many "bad reviews" from patients are somewhat frivolous. So reputation management is largely worthless in the medical field.

Additionally, in Texas for example, tort reform has done nothing to limit costs of healthcare (though it has made malpractice insurance much cheaper, which makes life nice for doctors and their insurers.)

[stuki]

And what kind of reputation, do you think an Amazon seller who makes potential customers sign "no review" contracts, will get?

There's nothing magical about the medical field, that makes approaches developed elsewhere somewhat irrelevant there. It's just another fee for service arrangement. Although many Doctors do like to fancy themselves as special snowflakes.

[jemfinch]

> There's nothing magical about the medical field, that makes approaches developed elsewhere somewhat irrelevant there.

There absolutely is something different about medicine: consumers' participation in the medical market is involuntary. We don't see doctors because we want to see doctors, we see doctors because if we don't, we will be maimed or killed by disease or dysfunction.

By the time people are seeking a doctor, they're often not in any position to evaluate the market--if a real market for medicine even exists where they live--and weigh the reputations or contractual demands of several doctors before choosing one. They're in pain, they're suffering, and they need a doctor now. That's very different than buying a watch on Amazon.

[stuki]

Outside of emergency rooms and acute care, people have quite a bit of choice as to when to see a doctor, and whom to see. It is conceptually little different than auto repair in that sense. Making the world artificially black and white only serves to obscure nuances. Some times you really could use some help right now, most of the time not. The efficient way to deal with the former, is to plan ahead and make arrangements. For the latter, YAGNY may well be the efficient approach.

Heck, even someone rendering services as conceptually involuntary as a will executor, can have a reputation fr being good or bad. Despite you not necessarily having much choice on the matter when the headline service is being rendered.

[arrrg]

And in many cases everything goes well. The system is not completely dysfunctional and I don’t think anyone was claiming that.

This is mostly about exceptional cases.

[SilasX]

You could say the same thing about many goods. For example, "I'm purchasing food, not because I really want it, but because I need it to exist. Therefore, no one should be able to use review systems to decide which food to buy. [or make a profit, or be run by private corporations, or whatever other remedy is merited because of the human need for food]."

[rictic]

That's some elegant rhetoric and ideology but it doesn't address the reality of the situation.

The evidence that I see says that this has been a practice for at least five years, and according to the Boston Globe[2] one reason for this is that doctors feel like the conversation is one-sided, as they are legally forbidden from saying much about their patients.

1] http://boingboing.net/2009/03/05/doctors-force-patien.html 2] http://www.bostonglobe.com/lifestyle/health-wellness/2013/03...

[rayiner]

Mandatory no-fault insurance would be better than reputation systems for medical care. I think people hand-wave around whether reputation systems work for low-probability but catastrophic avoidable error.

Also, the whole "greedy lawyer" trope is a wonderful bit of social engineering. Companies figure out how to save or make money while creating risk for consumers and bystanders, and its the lawyers that are greedy. Ford saves billions making a less safe car, and its the plaintiffs' lawyers that are greedy because they make money seeking compensation for the people that get hurt by that decision.

[thenmar]

Here are the two main problems with this comment:

-"lawyers are greedy" trope isn't really true, most lawyers would prefer to settle than go to trial (trial is more profitable for the lawyer) because it's a satisfying win for themselves and their client, most lawyers weigh ethical considerations heavily

-"reputation systems" can be gamed, are difficult to interpret, are vulnerable to selection bias, and exclude people who are too poor to own smartphones and computers

[dinkumthinkum]

Reviews are for people that don't know statistics. Mostly what you get are unhelpful bimodal distributions, hardly a way to redress serious grievances. I think your discount of civil court is either naive itself or just o early cynical to the same effect.

[stuki]

Reviews weighted by trust, seem to do quite well in most places where they are employed. From Amazon and Ebay sellers to Uber drivers to College rankings. Even yelp rankings, which are extremely unspecific, seems to provide users with waay better than random ability to pick the good from the bad. Even when it comes to doctors, as a matter of fact.

I would honestly be very, very surprised if they didn't end up working substantially better for medical doctors than for most other service providers. As, at least in my experience, very few people who decide to though the effort of becoming a doctor, do so with the express intent of scamming their way to riches, the way many Ebay and Amazon sellers do.

I am sure that in some selected cases, an aggressive tort system could be construed to have provided a better outcome, but at what systemic cost? Massive over treatment of every conceivable low probability condition, to stave off grounds for lawsuits. Doctors scared of going with their hunches, and instead of doing what they feel is the best for the patient, doing what they expect will be easiest to defend if the outcome should be less than ideal.....

Doesn't forcefully injecting an expensive and completely unconcerned outside party, into an arrangement between two parties that are outcome concerned, strike you as an inefficient use of resources? Why not, instead, try to find ways to make the two concerned parties understand each other better?

[ensignavenger]

Thats an interesting perspective- any studies that show that Texas doctors are significantly worse than doctors in other states?

[DanBC]

The Guardian has an article that walks through the changes. It's pretty shocking. http://www.theguardian.com/world/2014/may/02/texas-legal-doc...

I too am interested to know if this means that there are more bad doctors in Texas. Having a colleague try to take the surgical instruments from you during a surgery because you are so incompetent sounds like an extreme yet the hospital did nothin after that incident.

[saryant]

Texas has some of the best doctors in the world and an innovative healthcare community: http://en.wikipedia.org/wiki/Texas_Medical_Center

> The Texas Medical Center is the largest medical center in the world with one of the highest densities of clinical facilities for patient care, basic science, and translational research. Located in Greater Houston, the center contains 54 medicine-related institutions, including 21 hospitals and eight specialty institutions, eight academic and research institutions, three medical schools, six nursing schools, and schools of dentistry, public health, pharmacy, and other health-related practices. All 54 institutions are not-for-profit. The center exceeds one thousand acres (or 1.562 square mile) in size. [...] The Center is where one of the first and largest air ambulance services was created and where one of the first successful inter-institutional transplant programs was developed. More heart surgeries are performed in Texas Medical Center than anywhere else in the world.

(Ironically, the TMC came about through a tax dodge)

[jasonwocky]

>> any studies that show that Texas doctors are significantly worse than doctors in other states?

> Texas has some of the best doctors in the world and an innovative healthcare community

This doesn't answer the question.

[mturmon]

I have to note the stereotypically Texan emphasis on sheer size in the above narrative.