This is why every time someone here says "hey, move to Texas, it's better!" I just have to shake my head. Sure, nowhere is perfect, but between the school boards in Texas and the medical board, plus the unconstitutional laws still on the books against electing atheists, I just can't see myself living there. Yes, I know Austin is a tech mecca of the midwest, but there's a cultural problem in the whole state that stories like these point to.
"unconstitutional laws still on the books against electing atheists"
Point to any recent cases where that's been used to actually prevent an election. Every state has stupid laws on the books, seldom enforced.
As for the school and medical boards, while there are some mistakes that get made, coverage like this makes it more likely, not less, that things will get fixed.
"cultural problem in the whole state" is painting in really, really broad strokes, and inaccurate ones at that.
Point to any recent cases where that's been used to actually prevent an election. Every state has stupid laws on the books, seldom enforced.
And yet Texas is one of a dozen states out of 50 that still have a law banning atheists from office; sure it's not enforced, but it sends a message: atheists aren't welcome here.
As for the school and medical boards, while there are some mistakes that get made, coverage like this makes it more likely, not less, that things will get fixed.
"cultural problem in the whole state" is painting in really, really broad strokes, and inaccurate ones at that.
So you get some school boards that mess up every once in a while in every state; medical boards too. You don't see it happening, though, again and again, as in Texas. Oh, and I completely forgot about things like the death penalty and shutting down of Planned Parenthood and abortion clinics. Need I go on?
I'm sure there are plenty of nice people who live in Texas; I'm just not too keen on joining them until they sort some things out.
"And yet Texas is one of a dozen states out of 50 that still have a law banning atheists from office; sure it's not enforced, but it sends a message: atheists aren't welcome here."
It's things like this that give atheists such a bad name: willfully taking offense at something that is clearly just vestigial legislation.
Much as I enjoy seeing our legislature inaction, I prefer they don't waste precious cycles on updating such clearly antiquated codes until they become an issue, for real, in practice.
As for the others, you probably just haven't heard of them yet. Terrifying, no?
“If you want to be happy for the rest of your life…try moving to Texas..” --Mike Huckabee Facebook post 9-10-2013
He didn't say the reason why is because your life would be radically shortened by a non-invasive surgery so you wouldn't have time to be sad. Maybe that was implied?
You can find reasons to not live anywhere. But you can also find reasons to live everywhere.
I'm generally a pessimistic person but I dislike these overly negative generalizations at states and/or groups of people. I personally have lived in four different states and liked them all. I think I could enjoy living in any state.
That sounds like a system where the regulation didn't work.
One of the reasons I'm much less gung-ho about regulation as the answer to everything is that I acknowledge that case exists, and must be considered carefully rather than unconsciously assumed away. Regrettably, this complicates things compared to a world in which we could just assume the problem away, but we don't live in that world.
Those who could have stopped it had their ability to do so regulated away: The board’s mandate, spelled out in the Medical Practice Act, recognizes a doctor’s license as a hard-won, valuable credential. Doctors’ rights are to be protected at every step of the process. The board can’t revoke a license without overwhelming evidence, and investigations can take months, with months or years of costly hearings dragging on afterward. (Quote is trimmed a bit; a justification follows, but is a prime example of how regulation failed to consider an edge case and then made damned sure everybody else was obligated to fail to consider it as well.)
> But in the past 10 years, a series of conservative reforms have severely limited patients’ options for holding doctors and hospitals accountable for bad care. In 2003, the Republican-dominated Texas Legislature capped pain-and-suffering damages in medical malpractice lawsuits at $250,000. Even if a plaintiff wins the maximum award, after you pay your lawyer and your experts and go through, potentially, years of trial, not much is left.
> The Legislature has also made suing hospitals difficult. Texas law states that hospitals are liable for damages caused by doctors in their facilities only if the plaintiff can prove that the hospital acted with “malice”—that is, the hospital knew of extreme risk and ignored it—in credentialing a doctor. But the Legislature hindered plaintiffs’ cases even more by allowing hospitals to, in most cases, keep credentialing information confidential. In effect, plaintiffs have to prove a very tough case without access to the necessary hospital records. This is an almost impossible standard to meet, and it has left hospitals immune to the actions of whatever doctors they bring on. Hospitals can get all of the benefit of an expensive surgeon practicing in their facility and little of the exposure. This has freed hospitals from the fear of litigation, but it’s also removed the financial motivation for policing their own physicians.
> The medical malpractice cap and the near-immunity for hospitals snapped two threads from the regulatory web. What remained was the Texas Medical Board.
> But the Medical Board wasn’t designed to be an aggressive enforcer. It was mostly designed to monitor doctors’ licenses and make sure the state’s medical practitioners are keeping up with professional standards. The board’s mandate, spelled out in the Medical Practice Act, recognizes a doctor’s license as a hard-won, valuable credential. Doctors’ rights are to be protected at every step of the process. The board can’t revoke a license without overwhelming evidence, and investigations can take months, with months or years of costly hearings dragging on afterward. The protections make some sense. The Legislature doesn’t want the Medical Board taking a doctor’s license—and livelihood—unnecessarily or based on flimsy or frivolous claims. But the result is that unless a doctor is caught dealing drugs or sexually assaulting patients—or is convicted of a felony—it is difficult to get his or her license revoked.
> What all this means is that the Texas Legislature has committed the state to a policy of medical deregulation—a free-market system in which doctors can practice as they please with limited government interference. Only their consciences, and those of their fellow doctors, limit them.
That doesn't sound like an unregulated system. [...]
Those who could have stopped it had their ability to do so regulated away:
It's the doctors & hospitals who are the regulated parties. The Medical Board are the regulators. Stripping them of their authority effectively leaves the medical practitioners unregulated.
You're arguing that one group of meddling bureaucrats were hobbled by another group of meddling bureaucrats. Think through it again.
This is actually a case of opposite of free market.
Like the article said, if it was easier to people fire him when he was still a student for example, without fear of being sued, this would be averted.
Also the licensing system is broken (ie: license is mandatory by law, law says hospitals can trust the license, licensing organization is broken and give broken licenses... what to do? Good hospitals will expend money to research the guy, but the average hospitals will trust the law, that says that if the guy has a license, he has right to be licensed...)
> This is actually a case of opposite of free market.
> Like the article said, if it was easier to people fire him when he was still a student for example, without fear of being sued, this would be averted.
That makes no sense. How would more free market yield less suits exactly? What would the mechanism for righting wrongs be, smashing people's heads in without court interference?
> Free market proponents always claim righting wrongs is done by suing, how would more free market yield less suits exactly?
While free market proponents tend to claim that lawsuits are the place to correct wrongs, the things they tend to favor abolishing are the laws that provide the basis for lawsuits against particular wrongs; fewer bases on which lawsuits can be sustained can reasonably be expected to lead to fewer lawsuits.
> What would the mechanism for righting wrongs become, smashing people's heads in?
For wide classes of things that are widely considered "wrong" now and for which self-styled "free market" proponents would abolish the legal remedies, yes, extra-legal remedies would be the only remedies available.
Because the willingness of lawyers to take lawsuits is influenced by the likelihood of getting paid which is influenced by the probability of success (as prospective plaintiffs often can't afford to fund lawsuits up front, and thus rely on contingency fee arrangements.)
Even with the clients able to pay, the cost of lawsuits combined with a reduced probability of success will drive the expected value of lawsuits (and, thus, the incentive for them) down for the clients in the same way they do for lawyers (lawyers are just more likely to recognize the incentives in short order, the public knowledge will lag some but still eventually be established.)
Under a true free market doctors as a group wouldn't be able to use political connections to cover themselves. Once a doctor makes a big enough mistake the free market would demand he be put out on the street to never practice medicine again. Most likely the hospital would dump the doctor because they wouldn't want their customers, the patients, going to a different hospital that doesn't have doctors that cut people up for little or no reason.
Make no mistake, what we have in this day and age is nowhere near what one would call a free market. Regardless of political leanings or party, once a government is involved enough within the economy it is no longer a free market. It eventually becomes crony capitalism, if it doesn't shift to a non-capitalistic system, which is what you see in the U.S. today.
Well, I admit, it's a winding path so bear with me.
In a free market, a doctor would not be able to use political connections whether they be personal or part of a group to cover themselves. This not only includes the lawsuit angle but the ability to prevent laws that restrict his behavior and/or empower the patient, or vice-versa.
Under a free market the doctor wouldn't last very long if he was bad at his job, as he would be pushed out for someone more competent. Therefore, he makes one mistake and gets sued once. Maybe twice. Under a system that allows a bad doctor to remain for longer than should be allowed results in multiple injuries which results in multiple lawsuits.
In fact, the very article that this whole thread was started for describes that very doctor. After his first severely botched surgery, where all the doctors and hospital were sure he was incompetent, he should have been booted. Or at least placed in a position that had less responsibility, such as assisting in another surgery. But the system in place kept him working or were unable to deal with him resulting in more harm.
> Under a free market the doctor wouldn't last very long if he was bad at his job, as he would be pushed out for someone more competent.
In an ideal free market (which is a Platonic form, not a real thing that can exist in the material world), a vendor who fails to provide value cannot operate because there is perfect knowledge of the utilities and costs of a decision among all market participants, and buyers won't buy from that vendor.
Features of real-world markets that make them approximate ideal free markets are things like frequent repeated purchases of the same class of commodity which provides its utility fairly quickly and unambiguously, such that while perfect knowledge doesn't exist in the initial condition, very good information about expected utilities can be developed by market participants which allows behavior over time to align closely with what would be expected in an ideal market.
These features that allow real markets to approximate ideal free markets are not found very strongly in medical care in general, and are particularly not present in major surgery.
The reason they don't exist is because people actively prevent it. Much like the original article and various examples provided throughout the thread show.
People ask each other all the time about their personal experiences about doctors to attempt to avoid the bad ones, but that's as far as it seems to go in most cases.
Under a true free market doctors as a group wouldn't be able to use political connections to cover themselves.
Why not? Political donations and lobbying are protected speech, are you suggesting that doctors shouldn't enjoy the exercise of their first amendment rights?
the free market would demand he be put out on the street to never practice medicine again
LOL no, on several counts. First, you can't have a truly free market in medical care because the knowledge gap between consumer and provider is so great. I'm a smart, educated person but I'm really not competent to assess the quality of a doctor in most cases, which is why peer review organizations like medical boards exist to begin with. Second, in a really free market you buy at the time of your choosing, taking into account all factors such as quality and price. A great deal of medical care is not elective, but the purchase decision is forced upon the consumer by circumstances such as illness or injury. Not only are the purchasers under intense time pressure to make a decision, they must often do so with less than normal competence. Thirdly, you assume that peers and hospitals are in full possession of the facts at all times, and that deception is impossible. Deception has a price like everything else, and if you assume that people are going to ignore the economic incentives to lie or feign ignorance then I have a really great deal that I'd like to offer to someone like yourself...a deal whose value most people would not be able to appreciate, if you know what I mean.
It eventually becomes crony capitalism
A no true Scotsman fallacy. Markets have to exist in the real world, not one populated by angels.
Sure, they can use their First Amendment rights to support whatever candidate they want. But when said candidate gets elected and pushes a law through that directly benefits the contributor to the detriment of the people, then the free market is dead. At that point you have crony capitalism.
I don't see anything in your paragraph disputing my statement. You are describing things leading up to the mistakes of the doctor while I describe what happens afterwards.
Are you saying that crony capitalism doesn't exist? Because that's the only way I would agree with your No True Scotsman fallacy accusation. Seems to me you are attempting to make yourself appear clever with your condescending statement instead of actually addressing my point.
It looks like this doctor hires one of those reputation management firms, as most Google search results from searching his name are just medical directories that don't point to any of his surgical mistakes or the belated regulatory sanctions he has recently encountered. It's remarkable how well quacks can protect their reputations online even after patients die.
AFTER EDIT: As suggested by another comment in this thread, if you'd like to learn all the gory details of this quack surgeon's career, see the original Texas Observer reporting on him,
The $250,000 limit on medical malpractice suits in Texas is bullshit. Protecting doctors from frivolous lawsuits is fantastic in theory, but if make a grave mistake, you should be held accountable. 'License to Kill' isn't that far from the truth. It's expensive, but you can literately kill people and get away with it.
Here's my story:
We saw two doctors in Texas, both were convinced that my wife had advanced bowel cancer. The second doctor confirming the diagnosis was the Worst Day in my life.
We had no idea the doctors had colluded behind our backs, negating the exercise of getting a 'second unbiased opinion'. We had gone to a separate chain of hospitals and got the first diagnosis regurgitated to us.
She went in for a laparoscopic bowel resection surgery and woke up with:
* A nasty scar from pelvis to belly button
* Temporary ileostomy bag (her worst nightmare, requiring another surgery to remove, more nasty scarring)
* Hysterectomy (Sterilized, no kids yet)
* News that the previous diagnosis of cancer was incorrect.
* New diagnosis: Endometriosis (Can be treated without surgery in most cases)
The doctor was practically in tears when he broke the news to me.
The doctor was paid $60,000. The anesthesiologist and hospital split the rest, and our insurance paid in excess of $150,000 for the first surgery that wasn't medically necessary. The ileostomy reversal was performed in another state and cost another $40,000. Insurance is still paying for emergency room visits a few times a year.
We eventually consulted with several lawyers, and none would take the case, even the scummiest bastard I've ever met who would probably take candy from a baby if given a chance to do so. They all came to the same conclusion:
"There is no question that you have been severely and permanently wronged. Due to complications, you will need regular emergency medical attention for the rest of your life. If we took this case to court, we would win it every time. Unfortunately, it is not worth it to us due to the $250,000 limit. There is zero chance they will settle, there is no incentive for them to do so. A trial will be long, drawn out, and eventually, you could owe us more than the jury awards."
Tort Reform (essentially limited liability) is in direct conflict with the only corrective mechanism in the 'free market'. I've never understood why republicans support it so earnestly.
Because republicans only care about free market for the votes and the ability to destroy governmental processes and rollback social progress it gives them.
They're as plutocratic as the democrats if not more so, and they're even more shameless about it.
If you look at the evidence, especially the Gini coefficient, Republicans are a lot more plutocratic than Democrats: http://www.zompist.com/liberalism.html
You know, it's sad to see a well-thought out and researched document that makes many excellent points be totally ruined by a never-ending series of rants and name-calling against the opposition that also predictably ignores a few inconvenient facts.
I was dissecting the problems but it was turning into a wall of text. I'll sum it up easily enough in a smaller wall of text:
Since the 1930s:
- All bad things that have happened are because of the evil Republicans going out of their way to screw the little guy. After all, Republicans never do good and only make mistakes.
- All good things that have happened are because of the courageous and saintly Democrats cleaning up the messes of the Republicans. After all, Democrats always do good and never make mistakes.
- If a Republican President spends an incredible amount of money to win a war, it was bad. If a Democrat President spends an incredible amount of money to win a war, it was good. Never mind the fact that Congress spends the money, not the President who only presents a wish-list.
- If something bad happens: Republican is President means mention it, Democrat is President means ignore it. Republicans control Congress means mention it, Democrats control Congress means ignore it. If something good happens: swap first set of rules.
- If something bad happens: Republican President and Democrat Congress, blame President. Democrat President and Republican Congress, blame Congress. Republican President and Republican Congress, blame Republicans. Democrat President and Democrat Congress, blame Republicans. If something good happens: swap first set of rules.
For the problems we see in today's world created by government, I blame the Republicans and Democrats involved. For the good things created by government, I credit the Republicans and Democrats involved. Only a fool goes with the us-vs-them mentality.
The only way a person could possibly think that Republicans truly believe in the "free market" is if you only ever pay attention to what they say and never to what they do.
Because "free market capitalism" is mostly using "free market" (in this context, the concept of minimally regulated markets with correction for actual unlicensed harm through legal action based on specific harms) more as a rhetorical device for selling "capitalism" (the organization of the economic system to favor holders of capital) than as a real end in itself.
You mean a lynch mob that patiently waits for weeks or months while the defense lays out its side of the story? A lynch mob that abides by whatever decision a judge or jury eventually reaches, after weeks or months of testimony? That kind of lynch mob?
I mean the kind of lynch mob that extracts comically absurd recompense for errors. I'm a little busy to go digging for examples right now, but suffice to say that when a doctor has made a small mistake he does not deserve to be subsequently ruined.
Risk from unfair lawsuits and misfires of civil law are something we all have to accept.
Not agreed. First of all, you give no reason why "it just has to be this way". Is there no compromise, no middle-ground? Second of all, it's awfully easy for the patient to decide the doctor should bear all the risk, eh?
A civil lawsuit system with proof requirements for damages but full exposure to at least all actual damages is the middle ground (or at least one of them.)
Patient bears all or disproportionate risk (as is the case with damage caps or not having a liability system at all) is an extreme, as would be doctor bears disproportionate risk (which would be the case with something less than the usual civil standard of proof, or a presumption of guilt that had to be rebutted). You can't really get "doctor bears all risk", because no matter how easy it is to punish the doctor, or how extreme the punishments are, the patient is still going to bear the risk of non-compensable injury or death from medical malpractice.
> Second of all, it's awfully easy for the patient to decide the doctor should bear all the risk, eh?
That's not even a possible option (much less a fair description of anything on the table), so while it might be easy for someone to decide it in the abstract, its not really relevant to the issue at hand.
> A civil lawsuit system with proof requirements for damages but full exposure to at least all actual damages is the middle ground
It's trickier than that. Will the prosecution pay the defense's attorney fees if the doctor wins? Because otherwise you incentivize frivolous suits meant to force the defense to settle because winning is more expensive than settling.
> Will the prosecution pay the defense's attorney fees if the doctor wins?
Sometimes, but winning isn't enough.
> Because otherwise you incentivize frivolous suits meant to force the defense to settle because winning is more expensive than settling.
This assumes that "unsuccessful" is equivalent to "frivolous". The fact that this is not true (whether it comes to either initiating a suit or defending it) is why those who lose, on either side, don't automatically pay the other sides attorney's fees, while it is possible for them to be awarded such fees.
Note that a strict loser-pays system disincentivizes meritorious suits that are difficult to prove, or any cases near the boundaries of whatever the formal rules are, since there it drives up the expected cost of such suits.
And, if its not an obviously-biased-to-favor-the-defense system that only has strict loser-pays for the plaintiff, it also disincentives certain meritorious defenses in favor of settling, for the same reason that it disincentives certain meritorious are tough-to-categorize suits.
Again, the system we have is already the middle ground (or, at least, one of the available middle grounds) between undesirable extremes.
"Implies" might be better than "assumes"; what is actually incentivized (or, perhaps more accurately, not disincentivized) by the absence of a strict loser-pays system isn't "frivolous" lawsuits, per se, but lawsuits which it is less than certain will succeed, of which actually "frivolous" lawsuits are a small subset.
There's a wildcard element in any court case that involves a jury. But that's a cost of having an impartial jury of your peers, which is a core American value. I'm pretty sure that a lot more harm comes from worrying about being sued than actually being sued. A few years ago a small business owner was worrying himself sick because he was being sued, certain that he would lose his business. He still has his business.
First of all, you give no reason why "it just has to be this way"
dragonwriter said it better than me. I know just enough about law to know that it's a carefully studied problem and there are several established doctrines used in tort law. A lot of people seem to think law is made by idiots.
A doctor that makes a small mistake doesn't deserve to be ruined, but should have to deal with increased malpractice insurance premiums. A doctor that makes an egregious mistake may well deserve to be ruined, as does one that deliberately engages in malpractice (in this case, collusion about the diagnosis, which undercuts the entire scientific foundation of medicine).
The problem is that so-called tort-referom laws protect the bad and truly incompetent actors just as much as they protect the good-but-unlucky ones. In the case we're discussing here, all the economic risk has been transferred to the patient.
$250,000 is peanuts in medical expense terms, about the starting annual salary of a specialist and certainly much less than the annual salary of most surgeons or oncologists. So the doctor has perhaps 6 months salary at stake (leaving aside malpractice insurance for simplicity), whereas the patient may be facing an economic burden running into the tens of millions. A burden which you and I as taxpayers will eventually be sharing, when by rights it should have fallen on the malpractitioners, their employers, and their insurers.
For those who say that the insurance costs will just get passed on to the public in the form of higher medical costs, this is not actually the case due to price elasticity. In meantime, I can only advise avoiding malpractice states in general and Texas in particular. Txas likes to boast that licensing of new doctors has gone up by 25% since the law was enacted in 2003, but Texas is still ranked 46th nationally in terms of doctor:patient ratio, with only 176 doctors per 100k people instead of the national mean of 219. [1] so it's harder to see a doctor, they can charge more, and you have no comeback if they fuck up.
The /doctor/ is ruined? The insurance company would have to pay. Would a doctor become uninsurable because of insurance company lawyer ineptitude (if indeed they are forced into an expensive settlement for a small mistake)?
Have there been huge settlements? Sure. But those settlements are usually punitive and serve as a deterrent to bad behavior for hospitals that can make hundreds of millions in profit a year. A $500K slap on the wrist would carry the same weight as a $150 traffic ticket to a member of the middle class...annoying but forgettable. Now $10m? $20m? Suddenly everyone from the Chairman on down takes an interest in preventing whatever went wrong.
Do you think the insurance company would blame the lawyer or the doctor in that case? I may not think straight but I'm willing to bet they would blame the doctor and increase the premiums. If a doctor's premiums become large enough then he is in effect uninsurable. If that doctor still has educational debt to pay? Ruined.
Except those costs that hospitals incur are often passed down to other people to pay. Hospitals are not always the money-printing machine you seem to think they are. Well, some are I suppose. Of course, those increased fees by the hospital is often covered by medical insurance, which now has to increase premiums across the board to cover the increases.
>Of course, those increased fees by the hospital is often covered by medical insurance,
Insurance carriers have a lot of pull to decide how much they are willing to pay. They don't just blindly accept whatever numbers a hospital gives them. Those settlements come straight from the bottom line and are not simple to recoup.
> Perhaps because tort cases can wind up looking remarkably similar a lynch mob?
There's occasional highly-publicized cases (usually, one every few years or so, across all of tort law not just medical malpractice) where what superficially appears to the general public to be disproportionate awards are involved, that usually meet one or both of the following descriptions:
1) The actual facts on which the award is based are substantially different than the popular story that is circulated to use it to point to the disproportionality of the system, and/or
2) The award never has to be paid because it is suspended pending appeal and revised or reversed on appeal.
I think it's a pretty simple equation of doctors being in the party and tort reform appealing to the Reaganite anti-regulation, anti-government message. They probably aren't all that serious about it, though, because they trot it out at election time and then it goes away, at least at the federal level.
There are two kinds of damages in a lawsuit, punitive and compensatory. Compensatory damages compensate for the actual wrong that was done and any corrective action needed (i.e. additional surgeries, physical therapy, lost wages, etc). Punitive damages are put in place as a punishment and to hopefully ensure that doctors/engineers/professionals are take more precaution when conducting their business.
It is my understanding that the 250K cap is on punitive damages only (at least in most states). I'm sorry that your wife was wronged and 250K does sound low to me, but the cap is there in general to prevent a runaway jury from awarding outlandish sums ($10-100 million) to punish a single person, because ultimately society in general pays that $10-100 million in the form of more expensive goods and services.
Why? Because they made one mistake that affected this one couple? I can't imagine the pain they have but it sadly doesn't affect society much in of itself.
Cases of extremely high damages affects other doctors who didn't make such mistakes, which in turn affects their own patients. Runaway punitive damages affect society more than you may think, but you have to consider areas outside the medical field as well.
Tort reform is necessary in lots of ways but I would agree the $250,000 cap is a problem. If the cap is on punitive damages only then I would imagine a lawsuit would have taken the future medical expenses into account when deciding the payout. But since there's no potential huge punitive damages payout then apparently no lawyer is interested in taking on the case.
Seems to me that a great deal of the system falling apart failed this couple, not just some BS tort reform law.
>Protecting doctors from frivolous lawsuits is fantastic in theory,
In principle, we want everyone to be protected from frivolous lawsuits. The $250k limit for all practical purposes protects doctors from nearly everyone's lawsuit, frivolous or not. The absence of normal market forces in medical practice makes it even more important to have competent and strong oversight. We get none of that in Texas. Hey, at least malpractice insurance is cheap! (I wonder if it really is.)
OTOH, there are now very few reasons not to travel to another country for major health care, like surgery. Something bad may still happen, but you aren't likely to pay as much for it, and you might even be treated more fairly if it does.
I see a great deal of people to blame for your pain than just one group of politicians.
Was there nothing to be done about the two doctors colluding behind your back? Because that doesn't sound like medical malpractice to me, that sounds like fraud.
> With the exception of pain management clinics and anesthesiologists, the board doesn’t have the authority to inspect a doctor, or to start an investigation on its own.
Somebody's watching the medicine cabinet; they forgot about the knife drawer.
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[ 5.1 ms ] story [ 124 ms ] threadPoint to any recent cases where that's been used to actually prevent an election. Every state has stupid laws on the books, seldom enforced.
As for the school and medical boards, while there are some mistakes that get made, coverage like this makes it more likely, not less, that things will get fixed.
"cultural problem in the whole state" is painting in really, really broad strokes, and inaccurate ones at that.
And yet Texas is one of a dozen states out of 50 that still have a law banning atheists from office; sure it's not enforced, but it sends a message: atheists aren't welcome here.
As for the school and medical boards, while there are some mistakes that get made, coverage like this makes it more likely, not less, that things will get fixed.
"cultural problem in the whole state" is painting in really, really broad strokes, and inaccurate ones at that.
So you get some school boards that mess up every once in a while in every state; medical boards too. You don't see it happening, though, again and again, as in Texas. Oh, and I completely forgot about things like the death penalty and shutting down of Planned Parenthood and abortion clinics. Need I go on?
I'm sure there are plenty of nice people who live in Texas; I'm just not too keen on joining them until they sort some things out.
It's things like this that give atheists such a bad name: willfully taking offense at something that is clearly just vestigial legislation.
Much as I enjoy seeing our legislature inaction, I prefer they don't waste precious cycles on updating such clearly antiquated codes until they become an issue, for real, in practice.
As for the others, you probably just haven't heard of them yet. Terrifying, no?
He didn't say the reason why is because your life would be radically shortened by a non-invasive surgery so you wouldn't have time to be sad. Maybe that was implied?
I'm generally a pessimistic person but I dislike these overly negative generalizations at states and/or groups of people. I personally have lived in four different states and liked them all. I think I could enjoy living in any state.
Well, except for California, forget that noise.
That sounds like a system where the regulation didn't work.
One of the reasons I'm much less gung-ho about regulation as the answer to everything is that I acknowledge that case exists, and must be considered carefully rather than unconsciously assumed away. Regrettably, this complicates things compared to a world in which we could just assume the problem away, but we don't live in that world.
Those who could have stopped it had their ability to do so regulated away: The board’s mandate, spelled out in the Medical Practice Act, recognizes a doctor’s license as a hard-won, valuable credential. Doctors’ rights are to be protected at every step of the process. The board can’t revoke a license without overwhelming evidence, and investigations can take months, with months or years of costly hearings dragging on afterward. (Quote is trimmed a bit; a justification follows, but is a prime example of how regulation failed to consider an edge case and then made damned sure everybody else was obligated to fail to consider it as well.)
> That sounds like a system where the regulation didn't work.
No, it's a system where all regulatory authority and ability has been willfully destroyed over the last decade.
http://www.texasobserver.org/anatomy-tragedy/
> But in the past 10 years, a series of conservative reforms have severely limited patients’ options for holding doctors and hospitals accountable for bad care. In 2003, the Republican-dominated Texas Legislature capped pain-and-suffering damages in medical malpractice lawsuits at $250,000. Even if a plaintiff wins the maximum award, after you pay your lawyer and your experts and go through, potentially, years of trial, not much is left.
> The Legislature has also made suing hospitals difficult. Texas law states that hospitals are liable for damages caused by doctors in their facilities only if the plaintiff can prove that the hospital acted with “malice”—that is, the hospital knew of extreme risk and ignored it—in credentialing a doctor. But the Legislature hindered plaintiffs’ cases even more by allowing hospitals to, in most cases, keep credentialing information confidential. In effect, plaintiffs have to prove a very tough case without access to the necessary hospital records. This is an almost impossible standard to meet, and it has left hospitals immune to the actions of whatever doctors they bring on. Hospitals can get all of the benefit of an expensive surgeon practicing in their facility and little of the exposure. This has freed hospitals from the fear of litigation, but it’s also removed the financial motivation for policing their own physicians.
> The medical malpractice cap and the near-immunity for hospitals snapped two threads from the regulatory web. What remained was the Texas Medical Board.
> But the Medical Board wasn’t designed to be an aggressive enforcer. It was mostly designed to monitor doctors’ licenses and make sure the state’s medical practitioners are keeping up with professional standards. The board’s mandate, spelled out in the Medical Practice Act, recognizes a doctor’s license as a hard-won, valuable credential. Doctors’ rights are to be protected at every step of the process. The board can’t revoke a license without overwhelming evidence, and investigations can take months, with months or years of costly hearings dragging on afterward. The protections make some sense. The Legislature doesn’t want the Medical Board taking a doctor’s license—and livelihood—unnecessarily or based on flimsy or frivolous claims. But the result is that unless a doctor is caught dealing drugs or sexually assaulting patients—or is convicted of a felony—it is difficult to get his or her license revoked.
> What all this means is that the Texas Legislature has committed the state to a policy of medical deregulation—a free-market system in which doctors can practice as they please with limited government interference. Only their consciences, and those of their fellow doctors, limit them.
Those who could have stopped it had their ability to do so regulated away:
It's the doctors & hospitals who are the regulated parties. The Medical Board are the regulators. Stripping them of their authority effectively leaves the medical practitioners unregulated.
You're arguing that one group of meddling bureaucrats were hobbled by another group of meddling bureaucrats. Think through it again.
Like the article said, if it was easier to people fire him when he was still a student for example, without fear of being sued, this would be averted.
Also the licensing system is broken (ie: license is mandatory by law, law says hospitals can trust the license, licensing organization is broken and give broken licenses... what to do? Good hospitals will expend money to research the guy, but the average hospitals will trust the law, that says that if the guy has a license, he has right to be licensed...)
> Like the article said, if it was easier to people fire him when he was still a student for example, without fear of being sued, this would be averted.
That makes no sense. How would more free market yield less suits exactly? What would the mechanism for righting wrongs be, smashing people's heads in without court interference?
While free market proponents tend to claim that lawsuits are the place to correct wrongs, the things they tend to favor abolishing are the laws that provide the basis for lawsuits against particular wrongs; fewer bases on which lawsuits can be sustained can reasonably be expected to lead to fewer lawsuits.
> What would the mechanism for righting wrongs become, smashing people's heads in?
For wide classes of things that are widely considered "wrong" now and for which self-styled "free market" proponents would abolish the legal remedies, yes, extra-legal remedies would be the only remedies available.
It might lead to fewer successful lawsuits, but I'm not sure why it would lead to fewer lawsuits.
Even with the clients able to pay, the cost of lawsuits combined with a reduced probability of success will drive the expected value of lawsuits (and, thus, the incentive for them) down for the clients in the same way they do for lawyers (lawyers are just more likely to recognize the incentives in short order, the public knowledge will lag some but still eventually be established.)
Make no mistake, what we have in this day and age is nowhere near what one would call a free market. Regardless of political leanings or party, once a government is involved enough within the economy it is no longer a free market. It eventually becomes crony capitalism, if it doesn't shift to a non-capitalistic system, which is what you see in the U.S. today.
That is not the question I asked.
GP asserted:
> if it was easier to people fire him when he was still a student for example, without fear of being sued
I do not see how a free-er market would preclude lawsuits.
In a free market, a doctor would not be able to use political connections whether they be personal or part of a group to cover themselves. This not only includes the lawsuit angle but the ability to prevent laws that restrict his behavior and/or empower the patient, or vice-versa.
Under a free market the doctor wouldn't last very long if he was bad at his job, as he would be pushed out for someone more competent. Therefore, he makes one mistake and gets sued once. Maybe twice. Under a system that allows a bad doctor to remain for longer than should be allowed results in multiple injuries which results in multiple lawsuits.
In fact, the very article that this whole thread was started for describes that very doctor. After his first severely botched surgery, where all the doctors and hospital were sure he was incompetent, he should have been booted. Or at least placed in a position that had less responsibility, such as assisting in another surgery. But the system in place kept him working or were unable to deal with him resulting in more harm.
In an ideal free market (which is a Platonic form, not a real thing that can exist in the material world), a vendor who fails to provide value cannot operate because there is perfect knowledge of the utilities and costs of a decision among all market participants, and buyers won't buy from that vendor.
Features of real-world markets that make them approximate ideal free markets are things like frequent repeated purchases of the same class of commodity which provides its utility fairly quickly and unambiguously, such that while perfect knowledge doesn't exist in the initial condition, very good information about expected utilities can be developed by market participants which allows behavior over time to align closely with what would be expected in an ideal market.
These features that allow real markets to approximate ideal free markets are not found very strongly in medical care in general, and are particularly not present in major surgery.
People ask each other all the time about their personal experiences about doctors to attempt to avoid the bad ones, but that's as far as it seems to go in most cases.
No, that's not the reason that the features I identify don't exist in the purchase of major surgery. Its inherent in the kind of commodity it is.
Why not? Political donations and lobbying are protected speech, are you suggesting that doctors shouldn't enjoy the exercise of their first amendment rights?
the free market would demand he be put out on the street to never practice medicine again
LOL no, on several counts. First, you can't have a truly free market in medical care because the knowledge gap between consumer and provider is so great. I'm a smart, educated person but I'm really not competent to assess the quality of a doctor in most cases, which is why peer review organizations like medical boards exist to begin with. Second, in a really free market you buy at the time of your choosing, taking into account all factors such as quality and price. A great deal of medical care is not elective, but the purchase decision is forced upon the consumer by circumstances such as illness or injury. Not only are the purchasers under intense time pressure to make a decision, they must often do so with less than normal competence. Thirdly, you assume that peers and hospitals are in full possession of the facts at all times, and that deception is impossible. Deception has a price like everything else, and if you assume that people are going to ignore the economic incentives to lie or feign ignorance then I have a really great deal that I'd like to offer to someone like yourself...a deal whose value most people would not be able to appreciate, if you know what I mean.
It eventually becomes crony capitalism
A no true Scotsman fallacy. Markets have to exist in the real world, not one populated by angels.
I don't see anything in your paragraph disputing my statement. You are describing things leading up to the mistakes of the doctor while I describe what happens afterwards.
Are you saying that crony capitalism doesn't exist? Because that's the only way I would agree with your No True Scotsman fallacy accusation. Seems to me you are attempting to make yourself appear clever with your condescending statement instead of actually addressing my point.
AFTER EDIT: As suggested by another comment in this thread, if you'd like to learn all the gory details of this quack surgeon's career, see the original Texas Observer reporting on him,
http://www.texasobserver.org/anatomy-tragedy/
which ought to rank higher in a Google search on his name than it does.
Here's my story:
We saw two doctors in Texas, both were convinced that my wife had advanced bowel cancer. The second doctor confirming the diagnosis was the Worst Day in my life.
We had no idea the doctors had colluded behind our backs, negating the exercise of getting a 'second unbiased opinion'. We had gone to a separate chain of hospitals and got the first diagnosis regurgitated to us.
She went in for a laparoscopic bowel resection surgery and woke up with:
* A nasty scar from pelvis to belly button
* Temporary ileostomy bag (her worst nightmare, requiring another surgery to remove, more nasty scarring)
* Hysterectomy (Sterilized, no kids yet)
* News that the previous diagnosis of cancer was incorrect.
* New diagnosis: Endometriosis (Can be treated without surgery in most cases)
The doctor was practically in tears when he broke the news to me.
The doctor was paid $60,000. The anesthesiologist and hospital split the rest, and our insurance paid in excess of $150,000 for the first surgery that wasn't medically necessary. The ileostomy reversal was performed in another state and cost another $40,000. Insurance is still paying for emergency room visits a few times a year.
We eventually consulted with several lawyers, and none would take the case, even the scummiest bastard I've ever met who would probably take candy from a baby if given a chance to do so. They all came to the same conclusion:
"There is no question that you have been severely and permanently wronged. Due to complications, you will need regular emergency medical attention for the rest of your life. If we took this case to court, we would win it every time. Unfortunately, it is not worth it to us due to the $250,000 limit. There is zero chance they will settle, there is no incentive for them to do so. A trial will be long, drawn out, and eventually, you could owe us more than the jury awards."
Thanks, Republicans.
They're as plutocratic as the democrats if not more so, and they're even more shameless about it.
I was dissecting the problems but it was turning into a wall of text. I'll sum it up easily enough in a smaller wall of text:
Since the 1930s:
- All bad things that have happened are because of the evil Republicans going out of their way to screw the little guy. After all, Republicans never do good and only make mistakes.
- All good things that have happened are because of the courageous and saintly Democrats cleaning up the messes of the Republicans. After all, Democrats always do good and never make mistakes.
- If a Republican President spends an incredible amount of money to win a war, it was bad. If a Democrat President spends an incredible amount of money to win a war, it was good. Never mind the fact that Congress spends the money, not the President who only presents a wish-list.
- If something bad happens: Republican is President means mention it, Democrat is President means ignore it. Republicans control Congress means mention it, Democrats control Congress means ignore it. If something good happens: swap first set of rules.
- If something bad happens: Republican President and Democrat Congress, blame President. Democrat President and Republican Congress, blame Congress. Republican President and Republican Congress, blame Republicans. Democrat President and Democrat Congress, blame Republicans. If something good happens: swap first set of rules.
For the problems we see in today's world created by government, I blame the Republicans and Democrats involved. For the good things created by government, I credit the Republicans and Democrats involved. Only a fool goes with the us-vs-them mentality.
Agreed
Risk from unfair lawsuits and misfires of civil law are something we all have to accept.
Not agreed. First of all, you give no reason why "it just has to be this way". Is there no compromise, no middle-ground? Second of all, it's awfully easy for the patient to decide the doctor should bear all the risk, eh?
A civil lawsuit system with proof requirements for damages but full exposure to at least all actual damages is the middle ground (or at least one of them.)
Patient bears all or disproportionate risk (as is the case with damage caps or not having a liability system at all) is an extreme, as would be doctor bears disproportionate risk (which would be the case with something less than the usual civil standard of proof, or a presumption of guilt that had to be rebutted). You can't really get "doctor bears all risk", because no matter how easy it is to punish the doctor, or how extreme the punishments are, the patient is still going to bear the risk of non-compensable injury or death from medical malpractice.
> Second of all, it's awfully easy for the patient to decide the doctor should bear all the risk, eh?
That's not even a possible option (much less a fair description of anything on the table), so while it might be easy for someone to decide it in the abstract, its not really relevant to the issue at hand.
It's trickier than that. Will the prosecution pay the defense's attorney fees if the doctor wins? Because otherwise you incentivize frivolous suits meant to force the defense to settle because winning is more expensive than settling.
Sometimes, but winning isn't enough.
> Because otherwise you incentivize frivolous suits meant to force the defense to settle because winning is more expensive than settling.
This assumes that "unsuccessful" is equivalent to "frivolous". The fact that this is not true (whether it comes to either initiating a suit or defending it) is why those who lose, on either side, don't automatically pay the other sides attorney's fees, while it is possible for them to be awarded such fees.
Note that a strict loser-pays system disincentivizes meritorious suits that are difficult to prove, or any cases near the boundaries of whatever the formal rules are, since there it drives up the expected cost of such suits.
And, if its not an obviously-biased-to-favor-the-defense system that only has strict loser-pays for the plaintiff, it also disincentives certain meritorious defenses in favor of settling, for the same reason that it disincentives certain meritorious are tough-to-categorize suits.
Again, the system we have is already the middle ground (or, at least, one of the available middle grounds) between undesirable extremes.
You're going to have to explain this more, because I do not believe I was assuming that.
dragonwriter said it better than me. I know just enough about law to know that it's a carefully studied problem and there are several established doctrines used in tort law. A lot of people seem to think law is made by idiots.
The problem is that so-called tort-referom laws protect the bad and truly incompetent actors just as much as they protect the good-but-unlucky ones. In the case we're discussing here, all the economic risk has been transferred to the patient.
$250,000 is peanuts in medical expense terms, about the starting annual salary of a specialist and certainly much less than the annual salary of most surgeons or oncologists. So the doctor has perhaps 6 months salary at stake (leaving aside malpractice insurance for simplicity), whereas the patient may be facing an economic burden running into the tens of millions. A burden which you and I as taxpayers will eventually be sharing, when by rights it should have fallen on the malpractitioners, their employers, and their insurers.
For those who say that the insurance costs will just get passed on to the public in the form of higher medical costs, this is not actually the case due to price elasticity. In meantime, I can only advise avoiding malpractice states in general and Texas in particular. Txas likes to boast that licensing of new doctors has gone up by 25% since the law was enacted in 2003, but Texas is still ranked 46th nationally in terms of doctor:patient ratio, with only 176 doctors per 100k people instead of the national mean of 219. [1] so it's harder to see a doctor, they can charge more, and you have no comeback if they fuck up.
1. http://abclocal.go.com/ktrk/story?section=news/state&id=9226...
Have there been huge settlements? Sure. But those settlements are usually punitive and serve as a deterrent to bad behavior for hospitals that can make hundreds of millions in profit a year. A $500K slap on the wrist would carry the same weight as a $150 traffic ticket to a member of the middle class...annoying but forgettable. Now $10m? $20m? Suddenly everyone from the Chairman on down takes an interest in preventing whatever went wrong.
Except those costs that hospitals incur are often passed down to other people to pay. Hospitals are not always the money-printing machine you seem to think they are. Well, some are I suppose. Of course, those increased fees by the hospital is often covered by medical insurance, which now has to increase premiums across the board to cover the increases.
Insurance carriers have a lot of pull to decide how much they are willing to pay. They don't just blindly accept whatever numbers a hospital gives them. Those settlements come straight from the bottom line and are not simple to recoup.
There's occasional highly-publicized cases (usually, one every few years or so, across all of tort law not just medical malpractice) where what superficially appears to the general public to be disproportionate awards are involved, that usually meet one or both of the following descriptions:
1) The actual facts on which the award is based are substantially different than the popular story that is circulated to use it to point to the disproportionality of the system, and/or
2) The award never has to be paid because it is suspended pending appeal and revised or reversed on appeal.
That's about as close as it gets.
It is my understanding that the 250K cap is on punitive damages only (at least in most states). I'm sorry that your wife was wronged and 250K does sound low to me, but the cap is there in general to prevent a runaway jury from awarding outlandish sums ($10-100 million) to punish a single person, because ultimately society in general pays that $10-100 million in the form of more expensive goods and services.
Cases of extremely high damages affects other doctors who didn't make such mistakes, which in turn affects their own patients. Runaway punitive damages affect society more than you may think, but you have to consider areas outside the medical field as well.
Tort reform is necessary in lots of ways but I would agree the $250,000 cap is a problem. If the cap is on punitive damages only then I would imagine a lawsuit would have taken the future medical expenses into account when deciding the payout. But since there's no potential huge punitive damages payout then apparently no lawyer is interested in taking on the case.
Seems to me that a great deal of the system falling apart failed this couple, not just some BS tort reform law.
Do you really think it is good for society if doctors can screw up with no penalty.
If a pilot made mistakes this stupid they would be unemployed or dead.
Other cost: More strain on her community's local medical resources Less kids growing up in what could be a positive household
In principle, we want everyone to be protected from frivolous lawsuits. The $250k limit for all practical purposes protects doctors from nearly everyone's lawsuit, frivolous or not. The absence of normal market forces in medical practice makes it even more important to have competent and strong oversight. We get none of that in Texas. Hey, at least malpractice insurance is cheap! (I wonder if it really is.)
OTOH, there are now very few reasons not to travel to another country for major health care, like surgery. Something bad may still happen, but you aren't likely to pay as much for it, and you might even be treated more fairly if it does.
Was there nothing to be done about the two doctors colluding behind your back? Because that doesn't sound like medical malpractice to me, that sounds like fraud.
Somebody's watching the medicine cabinet; they forgot about the knife drawer.