Comments on: Gross v. Industrial Commission of Ohio

By: Deoxy

Deoxy — Wed, 03 Jan 2007 14:01:16 +0000

“If a doctor commits an error that results in injury, shouldn’t that patient be compensated?”

Yes. That’s not the issue. This is:

If a doctor DOESN’T commit an error, but an injury occurs anyway, shouldn’t the doctor NOT have to compensate?

The current system is based on primarily on outcome; with procdures that have less-than-perfect succcess rates even with no errors at all, that is a severe problem.

By: Justinian Lane

Justinian Lane — Tue, 02 Jan 2007 16:10:19 +0000

“patient should be required to purchase adverse outcome insurance prior to medical intervention; the awards would be stipulated in the insurance policy and the patient would be allowed to finance jackpot resuts.”

I would *love* to have the option to buy medmal insurance in case I go under the knife. It’s a great idea.

“They won’t because they will try to limit the premium.”

Actually, I think the real objections would come from physicians. It’s a sure bet that insurers would track the performance of doctors and charge you higher rates for doctors with a worse record.

“Mal-practice litigation is inefficient, unjust and irrational.”

I’ll agree that SOME malpractice litigation is inefficient, unjust, and irrational… but not all.

By: William Nuesslein

William Nuesslein — Mon, 01 Jan 2007 08:00:49 +0000

Mr. Lane,

Peter Huber has thoughly documented the position with respect to litigation involving births. That is why insurance is so high for those who deliver babies, and Cesarean sections are so common.

Generally, mal-practice is used to compensate adverse outcomes. The problem with that is that an error is constructed to get the payment. The patient should be required to purchase adverse outcome insurance prior to medical intervention; the awards would be stipulated in the insurance policy and the patient would be allowed to finance jackpot resuts. They won’t because they will try to limit the premium. The awards now depend on whether you have a slick John Edwards do a kabuki dance before an emotionally charged irrational jury. Mal-practice litigation is inefficient, unjust and irrational.

By: Justinian Lane

Justinian Lane — Sun, 31 Dec 2006 12:36:34 +0000

Mr. Nuesslein – Why would you suggest that justice and rationality are absent from many medmal cases? If a doctor commits an error that results in injury, shouldn’t that patient be compensated? Or do you contend that as long as the error was negligent and not intentional, that protecting doctors is more important than compensating injured patients?

By: William Nuesslein

William Nuesslein — Sun, 31 Dec 2006 06:51:25 +0000

Mt. Lane has it backwards.
Justice and rationality are values that are not respected in many tort cases, medical mal practice in particular.

Senator Kennedy et al are the guys who wrongly argue that the cost of the litigation problems are small. Litigation is a human endevor so one should not expect perfection.

But the litigation errors are so gross that some reform is needed. It is needed because a civil soceiety values justice and rationality.

By: Justinian Lane

Justinian Lane — Sat, 30 Dec 2006 12:16:39 +0000

I’ve often asked you if you’ve ever seen a lawsuit in which you supported the plaintiff. Here’s at least one; I won’t ask you that question again.

“Efficiency isn’t the only value—a society can rationally choose inefficient procedures because it believes the protected values are worth the additional cost—but the public policy debate shouldn’t ignore the questions of costs and benefits and act as if results can be achieved for free.”

That’s an excellent statement, Ted. Too often, the tort reform debate turns into a fight over cost, with values set aside.