I sometimes worry that my friends on the right are so passionate about tort reform primarily out of disdain for trial lawyers. A disdain stemming in no small part from the fact that the trial lawyers primarily support Democrats with their political contributions. But is that really any reason to fight so hard for tort reform?
If the brand of American conservatism espoused by the GOP really is about individual freedom and responsibility, why is it that the government should need to step in and limit the awards handed out by juries? Juries, after all, are comprised of individuals.
It is possible to argue that medical malpractice is an area where limitations on jury awards may make sense. Medical issues often involve matters of life and death in addition to the fact that medical science has not yet conquered many common diseases. This combination could make some cases very difficult for juries to distinguish actual malpractice from the fact that we just can't cure everything.
Current law already limits noneconomic damages in malpractice cases, Walker seeks to apply this limit to cases involving long term care facilities. While long term care is related to medical care, it's not exactly the practice of medicine. Long term care would seem to be a setting where juries could accurately assess the responsibility of the parties and award appropriate damages. Is there any evidence that they are unable to do so here in Wisconsin?
Then there's this baffling passage from the Legislative Reference Bureau's analysis of Walker's tort reform bill:
The bill provides that a health care provider is not guilty of the crimes of causing the death of, or bodily harm to, an individual by negligent operation or handling of a dangerous weapon, explosives, or fire, if the health care provider is acting within the scope of his or her practice or employment.So if a doctor prescribes two sticks of TNT and you blow yourself up, he's not guilty of a crime?
Finally, there's the question of jobs, which Walker has said is his top priority. If in fact state laws limiting noneconomic damages against long term care facilities attract those types of businesses, do you think they will attract facilities that provide relatively high quality or a relatively low quality care? Which type of facility has more to gain by such a law? At the very least there is the potential for primarily poor performers to be lured by the cap on damages. Jobs with these employers may not be the type we should be actively seeking to bring to Wisconsin.
I support Governor Walker and wish him success. I'm open to any convincing argument for this tort reform bill, but I haven't seen one yet. With the looming budget problem and continued economic weakness, I worry that the Governor may have miscalculated by including this bill as part of his special early agenda.
5 comments:
Are you kidding?
So if a doctor prescribes two sticks of TNT and you blow yourself up, he's not guilty of a crime?
Walker's proposals enshrine what is known as Common Sense.
As to jobs: reducing the cost of doing business does not inevitably lead to "more jobs." But INcreasing the cost of doing business raises the bar for "more jobs."
In review of this post, I believe you may be not fully understand the situation that you posted about. In fact you made the case for this legislation in your statement, "It is possible to argue that medical malpractice is an area where limitations on jury awards may make sense. Medical issues often involve matters of life and death in addition to the fact that medical science has not yet conquered many common diseases. This combination could make some cases very difficult for juries to distinguish actual malpractice from the fact that we just can't cure everything." I agree completely with this statement, but disagree that this does not apply to the long-term care world. 10 years ago many of the poeple who are cared for in our Skilled Nursing Facilities were in hospitals. As we have looked for more cost effective ways to treat people we have increased the role and responsability of long-term care facilities. Not only do these facilities provide home to our frailest citizens, they provide a wide array of healthcare benefits provided by Nurses, Therapists and other professionals. And even though they have worked diligently as an industry using cutting edge technology, training, and extensive quality improvement programs we have not perfected end of life care, which impacts many medical issues, along with the preference of the person that impact the ability of the provider to always fix every situation. I would urge you to visit a SNF and Assisted Living Facility and see first-hand the healthcare they provide.
The reason this is such an issue is that unbridled non-economic damange awards, threaten the very viability of our Long-term care system. Over the last seven years liability insurance premiums have skyrocked for these providers, taking funds that were ment for patient care and redirecting them to protecting against the "what if." I for one would rather have providers use funds for patient care, then to give hundreds of thousands of dollars to insurance companies each year. This increase has played a large part in driving up the cost of healthcare.
In regards to tort reform being wanted by poor preforming skilled nursing facilities and assisted living facilities, you could not be more wrong. Everyone is impacted by litigation as it increases all of the premiums. Over 50% of our SNF in the state of wisconsin are volunteering to participate in a national quality improvement. The goal is for Wisconsin to be the first state with 100% participation. 59% of assisted living facilities were citation free during state inspections last year. Many of them are developing their own quality improvement systems or are working with state associaitons to develop qaulity improvement standards in an effort to continue to develop state of the art care for the people the care for. Our long-term care community in Wisconsin does a great job supporting our seniors and disabled and it is time for us to support them.
Anonymous,
I worked as a nurse in a SNF and they are definitely NOT all providing services at the level you describe. I wish they were!
I would also urge people to visit a SNF or Assisted Living Facility UNANNOUNCED and "see first-hand the healthcare they provide". Be sure to stop by the LONG TERM and Alzheimer's wings... don't just visit the normally healthy, short-term stay patients that are there just for physical therapy after surgery.
No offense to those who work in them, but the reality of most SNFs are:
Doctors run through on the way to/from the office or deal with problems over the phone. A few highly trained RNs are usually doing the desk/paper work, while LPNs spend whole shifts passing meds, and barely trained CNAs do the dirty work of hands on care.
I agree the money would be better spent on patient care than insurance premiums, but I can't imagine what these facilities would be like if reform of this type was put in place.
Not to mention the fact that there are so many other things we need to work on in this state before this!
Yes Dad29 I was kidding (too snarky?). But I still don't get what critical problem that part of the legislation addresses.
Aren't government imposed limits on damage awards just another heavy-handed intrusion, not only between one branch and another but into the power of decision making normally left to juries? Isn't the redress of grievances through the courts critical to a free-market system?
And I still worry that damage caps could result in an adverse selection issue. If attracting (or even retaining) jobs is the priority, I think we'd do better to lower or eliminate corporate income tax as opposed to tort reform.
Well, "Fair" is in the mind of the beholder, no?
The State of Wisconsin, over the last 20 years, has reduced Medicaid-care dollars for LT facilities almost every budget cycle.
Reducing the cost of liability insurance is not unreasonable. For that matter, there are sources (bank credit management documents) which can be used to determine what national standards are for various P&L and capital items on LT care operations.
Might be useful to compare.
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