Read this first, along with my commentary as I don't want to repeat the points I made elsewhere.
Now, at the outset let me state that I am for caps on lawsuit settlements as a means of addressing the growing problem of "jackpot justice." This is a good first step. However, some think it is the only step since anything else would not be practical. Hogwash. I remember back in the 1970s and 1980s hearing that school choice vouchers were "not practical," but here we are making incrimental progress. I have also heard that it is "not practical" to build a missile defense system. And I'm sure that many people told Kennedy that it was "not practical" to land on the moon. Thus, on that grounds, I don't buy James Joyner's argument that my suggestion for solving the tort problem is "not practical." (I will extend this argument by asking what other nations that don't have "jackpot justice" do? I think that there are a number of nations in Europe that put fairly severe limits on medical malpractice claims. Funny how those states have an extensive socialized medicine system. I'll let you folks figure out the logic there.)
Now, on to more random ramblings about malpractice payouts. Putting caps on medical malpractice awards won't have much of an impact on steering doctors away from risky fields and here's the logic -- follow along, there is a bit of very simple algebra here.
The calculus for suing is: sue iff p * B > C, where C is the cost of hiring a lawyer, B is the jury award a litigant will receive and p is the probability that you will win the case. (B could actually represent a probable range of compensation and be calculated at the high and low ends, or be based upon an expected utility calculation of how the jury will decide an award. The latter creates an embedded equation that we can ignore for simplicity.) ("iff" means "if and only if" -- its not a typo).
One of the reasons we have lots of class action lawsuits lately is because the "sky is the limit" on awards. With B being extremely high (in the neighborhood of billions), the benefit side of the equation (left side) is so tempting even with a small probability of success. Just keep suing Big Tobacco and you are bound to win somewhere and at some time. But since you need an actual claimant (e.g., someone with cancer), you must examine this equation to the individual's level. Any particular individual will not want to sue a law firm because they could lose and have to pay the lawyer's bill. Ah, but most law firms will waive the legal fees if they can find a poor sap to be the "tort-of-the-day poster child." (Plus, they are likely to misrepresent the actual likelihood of success, but that doesn't matter if C = 0). So, the real calculation (p*B > C) with class action suits is at the level of the law firm. The more victims that the law firm can drum up, the bigger the class and the bigger they can claim B must be. Since their costs of C are fixed for any given trial, the bigger the class, the bigger the B, the more likely they are to sue even as p remains small.
Now, capping class action lawsuits will have the effect of making B contingent upon the firm (or individual) being sued, not upon the size of the class. So, lawyers cannot inflate B by finding an ever-larger class of victims. Rather, it makes economic sense to keep the class of victims small so that the settlement doesn't have to be spread out among thousands or tens of thousands of people.* It may very well be that the strategy of law firms will be to find only one or two litigants and sue up to the amount of the cap. If there are no limits on the number of times different individuals can sue a company for the same "injustice," you could be looking at "death by a million little cuts." Each individual "victim" could be portrayed as a slightly different "special" case, just unique enough not to qualify for a broader class of litigants.
Which brings me to medical malpractice, which was the central focus of Kinsley's original piece. Most medical malpractice suits involve an individual (or a very small class of individuals) against a particular doctor (or institution -- e.g., hospital). [There may be some larger cases -- e.g., breast implants -- but those are the minority.** And I don't believe that the breast implant case was a medical malpractice suit, per se, but a defective product suit.] Now let's go back to our equation p*B > C and assume that Congress or a state legislature caps malpractice settlements. B becomes fixed, so the decision to sue becomes more a function of p and C. This is a good thing in that it will limit the most tenuous of suits. It will also create a level of predictability in terms of payouts -- since B doesn't vary from case to case -- and this will allow insurance companies to better price their policies. The result will be lower premiums for doctors, and likely lower medical costs (or prefent them from rising so rapidly). I'm all for that.
HOWEVER, play out the strategic dynamic here. Depending where B is set, p*B > C can still be true and thus there is an incentive to sue. Given that any specific doctor's (or hospital's) livelihood is based upon his credibility, being sued a couple times could have devastating effects on his long-term career (or the financial health of the hospital). For that reason, doctors will still tend to stray away from risky procedures. (Hospitals that peform "cutting edge" surgeries or specialize in the terminally ill always complain that hospital rankings that examine death rates are unfair to them since they get the patients who would not likely survive anyways. They are correct in this complaint.) Doctors who perform high-risk surgeries, where there is a greater probability of something going wrong, will be targets of more lawsuits on average. Nontetheless, doctors could still factor this into their pricing strategy -- brain surgery will be very expensive.
But here is the critical point that gets back to my earlier issue of people increasingly disassociating risk from responsibility. With capped settlements, it is my belief that juries will be more likely to find in favor of the plaintiff (initial litigant). ...and this is by Kinsley's logic. Imagine a lawyer at trial migh say after reading Mr. Kinsley's piece. "After all, how could you ever replace an arm? Is there any price high enough? And since Congress has capped settlements at a measley $500K, how could you possibly deny this poor man this tiny compensation?" By capping settlements, I think the "p" term -- probability of winning a case will actually increase since juries will be more prone to award a "measley" amount. THe threshhold for proof will likely fall for juries -- think about the OJ civil suit. And with p increasing, and with C typically fixed for law firms, you are likely to get more lawsuits. And more lawsuits take time away from doctors doing what doctors do best and can irreparably damage a doctor's reputation. This is bad, and will likely be the unintended consequence of capping settlements. (Though by me saying it now, it is no longer unintended.)
That is why we need to culturally associate risk and responsibility (see below for more on this). Also, since culture is often hard to reverse, it may have to be done institutionally by imposing severe restrictions on medical malpractice suits and allowing the insurance market to handle mistakes and the criminal courts to handle negligent practices by specific doctors (see below). It is practical to do this. Britain and Canada do it with their socialized health care systems. Another solution would be a loser pays system, wherein the loser pays the legal fees of the winner. This will make firms more accurately access the real value of the "p" term and only pursue the most worthy cases. And all of this is possible here without socializing the health care system so long as someone has the spine to do it.
Unfortunately, spine transplants are risky procedures to perform on politicians who are constantly up for election. Elect me. I have the spine.
* I once was the beneficiary of a class action lawsuit involving the airline industry and I got a $5 coupon good for my next flight on Blah, Blah airlines. I never used it. Call it principle...or call it carelessness, since I think I threw it out by accident.
** This is also true for lawsuits more generally. The asbestos and tobacco class-action debacles represent the minority of lawsuits filed.
John Lemon's birthday is rapidly approaching, though I seem to be approaching this one with much less anticipation than any previous one (including the one following the one my parents forgot when I was a kid -- I'm scarred for life). You may be asking, is the Lemon shrivelled? Well, let's just say that the Lemon isn't quite forty yet. Nonetheless, I'm going through a major mid-life crisis (due in part to a cancer scare in my family) and I've been doing lots of weird things to look young. I also bought an advanced model paper shredder. Why that's related, I don't know, but that is what I did today.
But my question to you, and one posed by Mrs. Lemon, is "what should Dr. Lemon put on his wish list?" I've decided against going "pro" on the blogosphere -- at least for awhile -- so no need to suggest a different domain. Nonetheless, it is hard to think of anything given that I'm at a point in my life (and have been blessed by a very talented Mrs. Lemon) that if I want something, I go buy it.
...and don't give me any of those bullshit answers like "think about memories, not material items." Those kind of gifts generally suck.
Having once again debated whether I go to a better site and pay for the privilege (probably soon to be a constitutional right) of blogging, it occured to me to ask myself if bloggers ever work (on stuff other than blogging)? Since the typical blog (at least the ones I peruse) makes comments on some other link on the Internet, blogging not only involves writing and thinking (a.k.a., nitpicking or whining), but also a seemingly endless amount of time scouring the web.
Also, as a corollary, do bloggers ever have sex? As for married bloggers, we know the answer is no, particularly married bloggers with kids. But what about single bloggers? Is blogging partially to blame for the tumbling fertility rates in the U.S.?
(Read the more serious post below first.) If I have a cat that I am deeply attached to, and my doctor runs the cat over on his way to the hospital where I'm about to have surgery, can I sue my doctor for $20 million? As Kinsley correctly points out, people often overlook the fact that a dead cat owner is still a dead cat owner whether they have $20 million or not. So what the fuck? Why not sue?
Hmmm... James Joyner at OTB seems to be a closet Kinsley fan. He links to Kinsley's latest Slate piece that asks the important question, "would you become a quadriplegic for $20 million?" (Kinsley should read his own publication as it appears as if some people not only will take the $20 mil if offered, but are willing to pay for something similar!) This is apparently Kinsley's argument against tort/malpractice reform, which somehow ends up with the conclusion that civil malpractice suit damages should be capped. (OK, I will admit that I agree with Kinsley here to a point, but bear me out.)
James seems agree with the point that most "frivolous lawsuits" that involve medical malpractice are not that frivolous when examined closely since, as Kinsley puts it, "quadriplegic who wins $20 million in what critics call the 'lawsuit lottery' is still a quadriplegic. He is still a quadriplegic even if others in the same situation get little or nothing. He is still a quadriplegic even if the doctor he sued did nothing in particular wrong." James follows that "[t]his is correct and a point often missed by people, myself included, who want to limit non-compensatory damages."
First, I rarely, if ever, hear somebody calling a medical malpractice suit a "frivolous lawsuit." That is usually reserved for the drunk guy's family who sues SeaWorld after said drunk guy decides to go swimming with Willy late one night.
Second, both Kinsley and James miss a more important and philisophic point that is at the heart of tort reform: our society is increasingly disassociating risk from responsibility, which in turn is creating perverse incentives for productive behavior in many parts of our economy. Let me explain.
If (God forbid) I need to get open-heart surgery, my doctor will tell me about the procedure and inform me that there is some risk that things will "go bad." "Going bad" could be the result of my own body's reaction to an invasive procedure or some freaky accident (e.g., a machine malfunctions as machines sometimes do). Also, the surgeon, being human, could make a mistake. Humans make mistakes; that's part of life. Knowing this information, and realizing that such a procedure is not risk-free, I make the decision whether to proceed with the surgery or not. In doing so, I implicitly accept the responsibility for any misfortunes that may happen.
If something "goes bad" due to the aforementioned factors, I (if I am still in a position to judge that things "went bad") or my family, should not sue. I took a risk and that risk didn't pay off. I need to accept responsibility for that. My doctor is not responsible for my body taking to the surgery poorly or for some honest mistake. (The problem here is that many people assume that honest mistakes are malicious or systemic mistakes -- I'll return to this.) If I want to alleviate some of the downstream risk, I could purchase an insurance policy upfront that would compensate me (or my family) if something mistakenly "goes bad."*
If I do get the opportunity to sue if things "go bad," and the real life situation was that there was an "honest mistake" (i.e., it was part of the known risk), and if I get a big payoff, I would have not accepted any of the responsibility for my own decision. This sends the following message to doctors when it comes to future payments -- "yeah, I know there are risks, but if you make a mistake buddy, your career is over." What do you think the outcome will be? Either (1) doctors will leave the profession; (2) doctors will refuse to do risky procedures; and/or (3) malpractice insurance will skyrocket and the price of health care will increase.**
Now, consider another scenario. My doctor informs me of the risks, but comes in stinking drunk to the surgery and botches up. This would be an unknown risk, as we use common sense to assume that surgeons won't perform surgery intoxicated. (If you disagree that this is not a common sense assumption, I worry about what the legal profession and our educational system has done to common sense.) Here, my doctor is liable for anything that "goes bad" as the result of his intoxication. And guess what? There are laws against this -- negligent homicide or the equivalent when you are injured. The doctor should be duly punished for his negligent behavior. This is equivalent to a drunk driver running you over in the street. You (or your family) will be compensated by your own insurance or the insurance of the driver if he has some. If neither you or the driver have insurance, this is one of life's risks that we take. It sounds sad and cold-hearted, but sometimes life is that way.
Our legal system is largely set up not only to punish wrong-doers, but also to deter wrong-doing. If the doctor knows he will lose his license or go to jail for operating while intoxicated, he has an incentive not to do that. Your insurance, or the doctor's insurance, will compensate you for your loss. However, why should we than have a separate trial that heaps an arbitrary amount of dollars on you above and beyond this? (This is the point I agree with Kinsley. One of the main injustices with "jackpot justice" is that rewards are arbitrarily distributed -- which in a weird way might actually be just.) The bigger problem here is that such rewards are often handed out with lower standards of evidence against the defendant. Take OJ Simpson, for example. He was found "not guilty" in a court of law. I think that was a wrong decision, but that's the risk we take. So why should OJ have to pay civil damages to Ron Brown's family. I really disagreed with that decision. I'm sorry for Mr. Brown, and that would have been a raw deal, but life is filled with raw deals. (I'm in the process of getting one now. I'm mad, but I'm moving on.)
NOw note in this case there is no perverse incentive for doctors to modify their behavior, or for malpractice insurance to skyrocket. Drunk doctors*** (on average) will be prosecuted and will send a message to other doctors not to drink and operate. Will there still be doctors that drink and cut? Sure, but that number will likely be minimal. And there is no way that this will ever be prevented, even if we have $20 billion dollar damage awards.
In the final analysis, Kinsley's point that a quadriplegic is a quadriplegic no matter what the damages awarded is irrelevant. That sounds "sensitive" and "insightful" in the blogosphere, but it has very little bearing on the problem at hand -- i.e., creating a medical system wherein risk and responsibility are properly aligned, malicious malpractice is deterred to the greatest extent possible (realizing that it can't be stamped out entirely) and that costs and benefits are properly aligned rather than being out of whack as the result of arbitrary distributions of award settlements and its effect on insurace premiums.
If we cannot entirely eliminate malicious malpractice (which we can't), lawyers will always be waiting in the wings to "hit the jackpot" to the extent that risk-takers do not want to accept responsibility for their choices. And folks, this goes for everything else. If you are too stupid to realize that eating alot will get you fat, then you are a victim of your own irresponsible choices and/or stupidity. It is time that we get back on course to associate risk and responsibility.
* The argument always comes up, "well what about the poor who can't afford this insurance?" My cold answer is that "well, then they can't afford this insurance and will have to factor that into their decision." Does Bill Gates get better medical attention than I do? Yeah, he sure does. But Bill Gates has done more for this world than I will likely ever do. Will one of the Kennedy kids get better care than I do? Yeah, even though they don't contribute more to this world than I do, but just happened to be born at the right place. I'm o.k. with that.
** To go back to the rich-poor argument above, it is ironic that with fewer doctors pursuing risky procedures, those who procedures will become less available to those who can't afford the higher price. This irony comes directly out of Econ 101.
*** The same can be said of "stupid" (i.e., consistently incompetent) doctors, though it will take longer to find them out, which may well be bad news for his early patients, but that is what risk is about. When I go for a drive to the store, I don't know if I will be confronted with a drunk driver, but that is a risk I take.
I can't possibly see how Arnold can run for governor after seeing T3. I don't want to spoil the movie, but Arnold has to make T4 rather quickly so he can kill off John Connor after the nuclear holocaust. Ooops, I just spoiled the end of the movie. Sorry. And since Arnie isn't getting any younger, he had better do T4 with more expediency than it took to get from T2 to T3. By the way, I found T3 to be a good film reminiscent of "Holiday Inn" or "Miracle on 42nd Street." Here's my synopsis:
Boy meets deer.
Boy takes drugs.
Girl puts boy in cage.
Cybergirl kills lady with cat and tries to kill boy and girl.
Cyberboy prevents cybergirl from killing boy and girl.
Lots of destruction on the streets of L.A.
[I had a big gulp soda and missed part of the film.]
More destruction on the outskirts of L.A.
Boy, girl and cyberboy miracuously get access to top-secret government site.
More destruction in the desert around L.A.
Cyberboy makes it difficult to run for governor.
Boy and girl realize now is a good time for dating.
So it seems that more and more Democrats and progressives are ragging on the President over faulty intelligence and possible misrepresentations that led up to the war with Iraq. The jibes remind me of 7 year olds on a playground. Well, here's a simple question that each of those people should answer, and that harkens back to the playground analogy.
If we find Saddam Hussein alive, should we have a "do over" -- meaning that we were wrong on the technicalities in the first place and we will put him back in power?
I would like to hear how a "progressive" would answer that one. My guess is that they will say that "this is besides the point." My answer is, no it's not. It is the point.
My prediction: The newly revamped Lakers will NOT win a national championship next year. A basketball team is best when the egos are in check and the team plays as a team. The amazing thing about Dean Smith at UNC and Coach K at Duke is that they could recruit great talent and keep the egos in check. Only a few other coaches at the college level have the ability to do this (Fick Pitino, Roy Williams, possibly George Thompson, and Tubby Smith).* At the pro level, forget it. Even the zen master won't be able to subdue two aging superstars who desparately want a title, and two younger superstars who already have a title.
Maybe somebody else has already predicted this, but I've been avoiding the Internet lately.
* John Wooden -- the greatest coach ever -- didn't really have to coach in an era of enlarged egos since the salaries in the NBA were so low and college players played for their college not their professional career. Al McGuire would also fit this too.
As some of you may have noticed, I haven't been blogging lately. The Lemometer is reading "extremely sick" with a head cold that you would have to have to believe. It sucks that it is damn near 100 degrees out here. I had to coach t-ball with this cold and I think my vocal chords have been ripped to bloody shreds.
I've also been burdened with work, something most bloggers seem not to have much of (or they have found a way to stretch 28 hours into a day.
Finally, I've been in a pretty good mood lately, given that I've stayed away from my university office. I think it is more difficult to blog when you are in a good mood. After going into the office today, I noticed my anger level rising substantially. I have lunch with a very important person at the university next week, and I think I will be guaranteed to be really pissed off. Watch for some creative blogging then.
And finally, again, I've figured out how to gain some experience in political office without having to run a major campaign. Look for details to follow.
Does anybody know what is up with this "Search Scout" site? Sometimes when I do a Google search I get a pop up window with search results from "Search Scout." It is a much crappier site than Google, has fewer links and looks lame. Plus, since I already have my Google results, why would I bother with "Search Scout?" This mystifies me as much as spam that has a "aeorgyafds dalelj oijo" subject line. Why would anybody -- even the stupidest among us -- click on those things? It must be the most ineffective method of advertising ever invented, albeit an extremely cheap one.
Looking at my review of 28 Days Later, I see that I forgot to inform you of the basic Shakespearean plot underlying the film, as I typically do.
Boy wakes up.
By meets girl (and other boy).
Girl saves boy's ass from angry zombies.
Girl also immediately kills other boy.
Boy becomes worried about the whole "angry zombie thing."
Boy and girl meet other boy and girl, albeit much older and younger respectively.
Two boys, two girls make poor driving decision.
Much older boy discovers it is bad to stand under zombie.
Boy and girls meet many boys who want many girls.
Boy realizes survival per se not all its cracked up to be and kills the many boys who want girls.
The U.S. saves Britain's sorry ass once again.
If I am correct, and can recall my college freshman days, this is the basic plot underlying A Midsummer's Night Dream, no?
Just saw 28 Days Later. Wow! That was a very freaky film. Very well done and filmed in an unusual, yet highly effective, manner. The movie is very upsetting, especially if you have children. (Don't take your children.) While it is gorey in parts, it is not as bad as many slasher films -- the gore is hard to see because of the way the movie is filmed. It is more psychologically upsetting than anything and reminiscent of "Night of the Living Dead" (the original) and "Dawn of the Dead." If I had my way -- and I don't -- this would get an Oscar nod.
Update: I'm puzzled why the characters didn't raid Buckingham Palace. That would have been the first place I went.