Handing med-mal reform over to Sebelius

HHS secretary Kathleen Sebelius, now detailed as Obama administration point person in charge of the demonstration projects on liability reform, spent eight years as executive director of the Kansas Trial Lawyers Association: “I think I’m just the person to do it because I think I understand the system of litigation very well.” Mary Katherine Ham: “Indeed, as I’ve consistently said, the fox is uniquely qualified to guard the henhouse, because he understands the delicious taste of poultry very well.”


  • Who says the Obama administration is cold and humorless? Putting a notorious trial lawyer in charge of med mal reform is hysterically funny, akin to having Charley Rangel in charge of tax enforcement.

  • Who says the Obama administration is cold and humorless? Putting a notorious trial lawyer in charge of med mal reform is hysterically funny, akin to having Charley Rangel in charge of tax enforcement.

    I guess the joke’s on us, since we have Timothy (it was Turbo Tax’s fault) Geithner in charge of the IRS.

  • Well, look, if Sebelous really was committed to tort reform, then it actually wouldn’t be a horrible idea. How better to fix they system than someone good at exploiting it. As a working lawyer, i often think, “I shouldn’t be able to do this, but i can, and my client deserves the option.” Like I am personally opposed to class actions and have put my effort into curbing them, but when i have a client who might have a class action issue on his hands, i am ethically bound to point it out to him/her. Really using an experience plaintiff’s counsel for tort reform is basically the Germans taking the Maginot Line, turning the guns around and pointing them at the French–it is actually pretty sound strategy.

    The reason why it won’t work here isn’t because Sebelus is automatically sympathetic to the plaintiff’s bar because of her past, but because the democratic party is in the plaintiff’s bar pocket. but if Sebelus was sincerely interested in tort reform, she would be a great asset.

    Seriously, its like the set up to the show “Shark.”

  • I guess this is her payoff for her remarks about the Kansas National Guard not being able to respond after a tornado, because Bush had all of their equipment in Iraq.

  • I agree with A.W. Let’s see what Sebelius proposes before we automatically assume that she won’t propose something sensible. Otherwise we’re making the same mistake the left makes when they say someone from the Chamber of Commerce can’t become a regulator.

  • “HHS secretary Kathleen Sebelius, now detailed as Obama administration point person in charge of the demonstration projects on liability reform, spent eight years as executive director of the Kansas Trial Lawyers Association”.

    I think this falls under the category of “Job Security” for lawyers. As a lawyer, that’s Change I Can Believe In!

  • Aren’t lawyers always supposed to espouse the position of those who hire them? In this case the outcome would seem to depend on whether Sebelius was hired to advance reform and what kind of reform is desired by her client. That may be quite different than if she is to develop/advocate/implement her own views on the subject. To what extent and how well she actually represents the interests of her client will also affect the outcome.

  • Judges have more knowledge of the civil jury system than anyone.
    In a recent survey:
    * Ninety-one percent believe the system is in good condition
    needing, at best, only minor work.
    * Only 1 percent of the judges who responded gave the jury
    system low marks.
    * Judges have great faith in juries to solve complicated
    * Ninety-six percent said they agree with jury verdicts most
    or all of the time.
    * Nine of 10 judges said jurors show considerable understanding
    of legal issues involved in the cases they hear.

    Next up, get rid of judges.

    Dallas Morning News and Southern Methodist School of Law survey of federal trial judges in the United States, its territories and protectorates – over 900 judges. About 65% (594) of the federal judges responded. Allen Pusey, “Judges rule in favor of juries: Surveys by Morning News, SMU law school find overwhelming support for citizens’ role in court system,” Dallas Morning News, May 7, 2000.

  • What high cost are you talking about?

    Following is a GAO report on medical malpractice and could not find any evidence to substantiate the claims of lawsuits impacting health care costs, access to health care or defensive medicine (with one possible lose connection relating to OBGYN). But of course you will not see this report on any media outlet swinging left or right.


    Remember the CBO report regarding the cost of a single payer system that we all grasped to support our arguments against a single payer system…

    Well, there is the CBO report which had this to say about tort reform:

    “But even large savings in premiums can have only a small direct impact on health care spending–private or governmental–because malpractice costs account for less than 2 percent of that spending.”


    And of course there is Tillinghast-Towers Perrin (one of the largest in the world that provides risk management for the insurance and reinsurance industry).

    According to the actuarial consulting firm Towers Perrin, medical malpractice tort costs were $30.4 billion in 2007, the last year for which data are available. We have a more than a $2 trillion health care system. That puts litigation costs and malpractice insurance at 1 to 1.5 percent of total medical costs. That’s a rounding error. Liability isn’t even the tail on the cost dog. It’s the hair on the end of the tail.

    Of that 1 to 1.5 percent what portion of that is “frivolous”?

    http://www.towersperrin.com/tp/getwebcachedoc?webc=USA/2008/200811/2008_tort_costs_trends.pdf (Page 10)

    And then of course the report from Towers Perrin that states that the total tort cost in the US is 2% of the GDP. What percentage of that is “frivolous” and of that percentage what percentage is “frivolous” corporate lawsuits. So how much are “frivolous” lawsuits driving up the cost of everything? Maybe less than 2 cents on the dollar or maybe even less the 1 cent on the dollar?

  • Of the approximately 4,000,00 deaths in the US only 20,000 (1/2 of 1%) are murders. So, can we can shut down the expensive homicide departments?

    It happens that malpractice is concentrated in certain specialties. When a doctor is saddled with a $150,000 or more premium, he has to add at least $75 an hour to his fee just to cover that nut. Malpractice is a serious financial problem some of the time.

    Whether malpractice in total is a big financial problem compared to all medical costs or not, wouldn’t a fair minded person want a system that replaced the lottery of jury trials with a more efficient process of adverse outcome insurance? I would.

    Ted Frank has explained the errors in the 2% studies:

    “What the CBO says is that, assuming medical malpractice expenses are 2%, reducing those expenses 25% will, as a matter of simple arithmetic, reduce total health care expenses by 0.5%. But, as Dr. Chusid acknowledges, that 2% assumption for medical malpractice expense is a great underestimate. There’s more than just insurance premiums: there’s the billions spent on inefficient defensive medicine, on hospital in-house lawyers, on time doctors spend with lawyers instead of with patients, on time doctors spend papering the record to protect themselves in event of suit, and on self-insurance–many hospitals don’t use a middleman insurance company. And for a number of disciplines, the malpractice insurance rate is unquestionably higher than 2%–the average OB/GYN pays a quarter of her net income in premiums. Nor is this a problem, as sometimes expressed by some trial lawyer defenders, of some small percentage of doctors accounting for the majority of malpractice: in a given year, a sixth of America’s doctors (and half of its neurosurgeons) are faced with a malpractice claim. (Similarly, the oft-cited 1999 Institute of Medicine study attributing tens of thousands of deaths to hospital errors is only relevant to malpractice concerns if, as Dr. Chusid implicitly acknowledges, one assumes a sort of strict liability for poor results.)”

  • anyone who denies that malpractice, particularly the need to buy malpractice insurance, raises the cost of medicine is retarded or lying. Take your pick.

    Economics 101. This is not complicated.

  • To add to what A.W. and Ted said about keeping an open mind, FDR famously scored a success by picking Joseph Kennedy, who knew stock manipulation from firsthand experience, to run the newly formed Securities and Exchange Commission. Very likely Sebelius lobbied for some bad policies while director of KTLA, but it’s prudent not to jump to conclusions about her current views or inclinations. I did think the Mary Katherine Ham line was pretty funny, though.

  • Anyone recall the fable about the scorpion who bums a ride across the river on the back of the turtle? He promises the turtle he won’t sting him. He gets to the other side, stings the turtle. The turtle says, “Hey, why the heck did you just sting me? I gave you a ride!” “Because I’m a scorpion, that’s what I do.” Maybe this lady is sincere. But the burden is on her to prove it.

  • I hope that, at least, whatever she proposes isn’t a joke. Chief in my mind is the HHS report in 2003 that said defense medicine cost hundreds of billions of dollars annually, a conclusion reached by reviewing a single study of two heart treatments and then extrapolating its conclusions across all health care expenditures, even those not directly related to care. The CBO later declared the methodology ridiculous, and noted that their numbers were wrong even under the bogus method.

    So, well, I’m hoping this isn’t the same, even if titled my direction. It’d be nice even if they just researched the issue — I’m tired of seeing that same stupid Towers Perrin study and its ridiculous overinflation of medmal costs (A.M. Best puts medmal premiums at 0.45%, less than one-forth of Towers Perrin).

    I’m also tired of endlessly reading Philip K. Howard propose “health courts” with little or no detail to back them up, or any attempt explain why they’d change anything. Put liability in front of the judge? Okay, fine — that won’t make cases any more predictable for either side.

    If she stays true to Obama’s form, it’ll be some incremental reform. I’m keeping my fingers crossed for some sort of “safe harbor / comparative effectiveness,” since those actually increase patient safety and make liability clearer. Caps on damages does diddley-squat to reduce costs or assuage physician fears, it just cheats a couple thousand people a year who lost all bowel control or became widows or were blinded or the like due to malpractice.

    Note: Republicans will undoubtedly throw a hissy-fit and declare the whole thing unacceptable regardless of what it says, and thwart any attempts to pass it, chiefly by pretending they run Congress and demanding the bill contain everything they want. Then, of course, trial lawyers will be blamed for the bill’s failure.

  • I represent plaintiffs in med. mal. suits and I am 100% in favor of tort reform. I say require at least five different experts sign off on the Complaint and each provide affidavits; heightened pleading requirements; eliminate joint and several liability; and make Daubert and its progeny-like standards for experts in state court lawsuits. But I also don’t want caps on pain and suffering. Consider this: What would it be worth to you if you were 42 years old; went in for a routine surgery; and due to a totally avoidable and egregious careless act (one for which the doctor can find no expert to say that there was no violation of the standard of care), you are on a ventilator — struck in your bed– for the rest of your life. You absolutely comprehend everything that is going on, but you cannot speak at all. Your doctor tells you that you will live to at least 65 years old. These facts are based upon a client that I represent. What kind of pain and suffering do you think he goes through every day? What about the next 23 years? Is this pain and suffering only worth $350,000, the cap in Georgia? What about $1.70 per hour? $350,000 dived by the number of hours that this guy will live (65 years old-42 years old) equals $1.70 per hour.

    I would really like to hear the response of those who support caps.

  • Surely this patient’s financial requirements to care for him for several years (non-pain and suffering damages) would be would exceedingly higher than $350,ooo. There is no cap on this, correct? So your $1.70 per hour doesn’t seem accurate.

    For every highly emotional, big lottery payout cases like this, there probably are many not as catastrophic, less emotional cases of true malpractice, in which the victim is never compensated because taking on the case doesn’t make economic case for the attorney–patient is elderly, no income, no dependents, etc. This is the reason the current system stinks. It’s all about following the buck.

    Since we’re talking about bad outcome, why can’t there insurance for this? We have it for just about everything else.