Monday, October 19, 2009

The (now bankrupt) Diocese of Wilmington and ... Tort Reform

The announcement that the Diocese of Wilmington is filing for Chapter 11 protection in the face of 141 different complaints of child sexual abuse has given me pause to think about another issue ... medical tort reform.

How are these two connected?

I read in another source that the diocese has on hand assets equaling roughly $50-100 million, but could face debts of $100-500 million from these cases.

According to the letter that the CBO sent Senator Orrin Hatch regarding medical tort reform, the nation would save $54 billion in part by placing a $250 K cap on "pain and suffering" awards and a $500 K cap on "punitive" damages.

That would mean, if these cases were ajudicated under that standards for child sexual abuse, that the most the Diocese would be on the hook for would be $750 K/person times 141 case, equalling $105.75 million.

Had the Diocese been the beneficiary of that sort of tort reform, it probably would not have had to declare bankruptcy.

Which is a problem for me.

Let's take an eleven-year-old boy who was sexually abused 45 years ago. Would even those of you who have never known sexually abused children (I adopted one) or the adults they become, believe that $16,666/year would make up in any way for the damage done? Here's a clue: that amount wouldn't begin to cover even a fraction of the therapies that should have been undergone, the lost hours of productivity, the hurt and often fatally wounded ability to form personal relationships....

So what about actual medical malpractice awards?

Imagine a child as the victim of surgical negligence at the hands of a physician who makes $300-500 K/year, a child harmed for the rest of his/her life--which itself may be tragically shortened.

Punitive damages against that doctor and that hospital should only equal about one year's pay for the surgeon?

Pain and suffering should be capped at $250 K?

No. 750,000 times no.

I realize that trial lawyers have become a virtual arm of the Democratic Party in many areas, and that it is tempting to say that they are abusing the system for big bucks. Maybe so.

But the reality is that most people don't sue, most people don't collect, most cases are settled, and the real problem is that there is too much medical malpractice occurring in American medicine, just as there was too much child abuse occurring the the Catholic Church.

The reality is that the court system is one of the places where normal Americans stand a chance--just a chance--at redress against wealthy, entrenched, State-supported corporate interests. [Why do I say "State-supported" here? Because that letter to Orrin Hatch said most of the savings would come from malpractice insurance payments that would be reduced for Medicare, Medicaid, and VA physicians.]

The reality is that if I argue that GM is not too big to fail, and that Bank of America is not too big to fail, then I have to accept the fact (even as a practicing Catholic) that the Catholic Church cannot be too big to fail, nor can the health insurance industry.

The answer to people wanting tort reform for medical malpractice is the same answer that the Catholic Church should be given on child sexual abuse: if hospitals did not tolerate malpractice, and the Church did not tolerate abuse, then the actual cases would be few and far between because the hospitals and the Church would not hide the offenders, but would have made examples of them and dealt honorably with the victims when the problems occurred.


Michael Kirsch, M.D. said...

You are off on your facts and your analysis. I encourage you to review the current posting at as well as other postings under Legal Category category. Perhaps, you will then modify your view.

Steven H. Newton said...

Actualy Dr Kirsch, my "facts" with regard to the CBO findings are correct: those are the caps the CBO proposed.

The site to which you refer me does nothing but cite another study without examining its merits, merely trumpeting its conclusions as decisive.

I have read Baker's work, examined, the GAO analysis from a couple years back, read the CBO analysis, and about 50% of the original research.

Of course you can reduce costs by capping damages. But what the CBO never seriously examines is whether you reduce the quality of care at the same time.

The evidence suggests strongly that the problem is not too many malpractice suits, but too much malpractice.

You want to visit with specifics, please feel free to do so (with appropriate citations), but don't assume that you can waltz through and lecture me on failing to consult sources.

Ayn R. Key said...

The simples version of Tort Reform would be to enforce consent contracts.

It does something like this:

Doctor: This procedure is risky. It has a recognizable chance of failure. I will only proceed if you sign this contract to not sue if it does fail since you were advised and you chose.

Patient: I will sign it.

Procedure: Has the failure.

Patient: I'm suing.

Doctor: You signed saying you wouldn't.

Patient: It was under duress, I needed the procedure.

Judge: The contract is null and void.

Jury: Guilty.

Michael Kirsch, M.D. said...

Steve, I'm not lecturing you or anyone else, so no need for a hostile tone. Is there any aspect of our tort system that you feel is defective and needs to be reformed, or are you satisfied with its present state? On my blog ( I have detailed what many of us feel are glaring deficiencies in the current system. Do you think that a system that targets so many innocent physicians, generates billions (we can argue over the amount) of dollars in defensive medicine and misses most cases of true medical negligence is even close to ideal?

Steven H. Newton said...

When you open a comment with the following words

You are off on your facts and your analysis.

And offer no data whatsoever other than the offer to visit your website and become educated, you are the one who has set the tone for any discussion.

You could have said, "I disagree with you and here's why," offering some explanation. You didn't.

So, yes, I took your tone as lecturing.

There are problems with the current tort system. What is fascinating is that virtually proposals for reform start from the premise that the primary objective is to reduce health care costs, not to guarantee the best quality care.

No matter how I read the actual academic research evidence, there is no current consensus in controlled studies that tort fears are the only or even the primary factor driving defensive medicine, or that the current tort system either supports or leads to poor patient outcomes.

What the research does support is that most physicians believe such to be the case--a separate finding.

I do not believe that the current system is perfect, but that the case for rather draconian caps is far from made by its advocates.

Michael Kirsch, M.D. said...

Steve, I am pleased that the mutual lecturing has ceased. While there may not exist convincing research proving that fear of litigation increases defensive medicine, it is true in my practice and every medical practice I know. Even if its physician 'belief' that this is true, the outcome is the same. Respectfully, I believe that it is incontrovertible that lawsuit-fear is a significant stimulus for defensive medicine. I challenge you to locate 3 physicians in your county who deny this. Examine any CAT scan report, as I do daily, and you will see absurdly defensive interpretations by spooked radiologists. Do you concede any validity to this view? I have admitted that I do not believe caps are ideal as it would deny deserved relief to some injured plaintiffs. You indicated that the current system is imperfect. What flaws were you referring to?