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This is a repost from Huffington Post.

Remember when all of those "conservative" Members of Congress and Governors screamed and yelled about the stimulus only to grab as much money as they could as soon as it passed? What do you call that kind of thing? Hypocrisy? Political expediency? Greed? Are we seeing a repeat of the same shameless behavior on health care?

A little personal background first. I’m as disappointed as the next guy at the state of health care legislation. As one of Sicko‘s Associate Producers, responsible for fact-checking the film and dealing with media smears, like from CNN’s Sanjay Gupta, you’ll never convince me that anything short of single-payer is a huge mistake. But strategy-wise, I’ll defer to the many great activists with far more expertise than I, who are trying to make sure the final bill is as effective as possible.

I’ve downsized my day-to-day work to something that not many people pay attention to, but is the plight of hundreds of thousands of health care consumers each year: unsafe medical care, i.e., "medical malpractice." It is astonishing that the health care bill could contain anything that could lessen the accountability of unsafe hospitals or try to solve insurance problems on the backs of injured patients and further add to their misery. Yet unfortunately, due to the lobbying power of organized medicine and the insurance industry, and the apparent continuing muscle of some right-wing politicians, we are actually having to fight this battle long after the exit of George W. Bush and Karl Rove.

What do these people want? They want to severely limit compensation to injured patients, like they did in California in 1975 and have continued to do, state-by-state, for the last 35 years. Now, almost every state has already made it difficult for medical malpractice cases to go forward. The widely-quoted New Yorker magazine piece, which explored why McAllen, Texas, "was the country’s most expensive place for health care," told this story pretty well. The following exchange took place with a group of doctors:

"It’s malpractice," a family physician who had practiced here for thirty-three years said. "McAllen is legal hell," the cardiologist agreed. Doctors order unnecessary tests just to protect themselves, he said. Everyone thought the lawyers here were worse than elsewhere. That explanation puzzled me. Several years ago, Texas passed a tough malpractice law that capped pain-and-suffering awards at two hundred and fifty thousand dollars. Didn’t lawsuits go down? "Practically to zero," the cardiologist admitted. "Come on," the general surgeon finally said. "We all know these arguments are bullshit. There is overutilization here, pure and simple." Doctors, he said, were racking up charges with extra tests, services, and procedures.

Here’s another way to look at it. So-called "tort reform" takes money out of the hands of catastrophically injured children and puts it into the pockets of insurance companies, like some of these families. Dennis Quaid, whose newborn twins were nearly killed in a California hospital, actually had some choice things to say about this before Congress:

The law is stacked against ordinary people. For instance, in my home state of California, a 1975 law caps compensation to malpractice victims. The cap has never been raised for inflation. The practical effect is that people without the wealth to pay legal fees up front are unable to get their cases before a judge or jury.

Now, we find mention of some of these issues in the House health care bill. While we don’t agree that limits on anyone’s legal rights has any place in this bill, at least the House version merely recognizes that states might want to consider a couple of litigation changes that do not necessarily hurt patients. To accomplish this, Congress may provide money to states to explore them – but not to explore "caps." And why should it? When a state enacts a "cap", it’s like taking a sledgehammer to the legal system. What’s the point of paying a state to explore a "litigation alternative" law where legitimate cases can’t go forward anyway? The Senate already rejected caps five times under W’s reign.

Congress was right then, as they are now, for wanting nothing to do with these cruel laws. Nonetheless, witness the temper tantrums on the right, like Ed Gillespie complaining Sunday on This Week that state lawmakers are being "punished" (translation: no federal handout) for considering caps. Hypocrisy? Political expediency? Greed? Anything new here?

Caps are terrible laws. They apply no matter the extent of misconduct and regardless of the severity of a injury, in fact, hurting only the most seriously injured. They must not be used as a health care "bargaining chip." And federal taxpayers are already shouldering enough burdens without adding this one to the list.


  1. Gravatar for Jeremy Engdahl-Johnson
    Jeremy Engdahl-Johnson

    Today's medical professional liability system is too adversarial and too expensive. There are alternatives. More at

  2. Gravatar for Joanne Doroshow
    Joanne Doroshow

    Well, your ideas come from an insurance industry consulting firm. How about recommending that insurance companies pay legitimate claims? For more information about the actual costs of the system, see and For more information about the costs of alternative systems, see: For more information about how the system actually does work, see

  3. Gravatar for Jim O'Hare AIC AIS VP med mal claims
    Jim O'Hare AIC AIS VP med mal claims

    Med mal claims guy since 1985:

    We need to separate what goes into the global healthcare / med mal bucket. A few things.

    McCarran Ferguson only benefits HC and not Med mal. Competition has brought med mal premiums in Fla down 5%/Yr, each yr, for the past 5 years. Why ?- After tort reform, a 1/2 dozen writers grew to 25 = competition. Open the doors- there is no reason for this protection. Who does it benefit? Those interested in profit not Health.

    You can have good health for society or profit- pick one. One prefers an empty hospital and the other a full hospital. Think about that. Sickness is the stock and trade for HC companies , not good health. There is no money in a cure, but in treatment of the symptoms. Dry eye and restless legs come to mind!

    RE caps- they apply to pain and suffering a subjective concept. You cant weigh nor measure it, no scale nor ruler. $olving $ubjectivity with Objectivity ( cash )cant be legitimetly done. There are other causes of action to collect from and make the patient whole again. We can argue the amount of the cap but not its necessity.

    I have always paid legitimate claims and plenty that weren't, because of demographics or complexities of the defense, and the vagaries of lay jury. Those cases that Companies try, you can bet that they think there is a great shot at prevailing, usually 80% of the time. Other cases get settled.

    RE defensive medicine due to med mal- This is unfortunate but may lead to an expensive diagnosis, which brings us back to HC reform. If the defensive medicine cost 30% less, nobody would care about the effect to med mal.( Recall that operating costs for the big HC co's are 35% and Medicare and the Vet are 5% !) 30 % difference in a 2.5 trillion $ industry buys alot of HC. Skip the F-22 boondoggle, crappy planes at 350 mill each for 187 airplanes!!1 HC costs and availability shouldnt even be a discussion. France gets this one right!! Think about that for a sec.

    With 1300 HC companies in the US, why do residents of states like Alabama and ND only have access to a couple? Back to McCarran Ferguson- dump it.

    Why not pool small companies to get better HC rates. Lets say all bowling alleys pool together to get a preferrred rate. All restaurants? This would impact on the HC conglomerates license to steal and pack enormous usurious profits.

    One last thing- Aetna and Blue cross do not provide any healthcare, they are just brokers. The docs and nurses are the caregivers. These corporate people fit themselves in between the sick and caregivers with a huge markup and huge overhead.

    Thank you Richard Nixon and permanente for the HMO concept. What a pox. When you listen to a politician, you can tell who is paying their way. keep that in mind. The agenda is not good healthcare, it is what we can get away with to protect our license to chump the system..

    They are shuffling the same deck of cards, when we need to stop the games.

    regards Jim

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