Corp Reform - Not Tort Reform

Florida's Three Strikes Rule for Doctors

A friend of mine sent this link to a story at Fox News.  Voters in Florida have approved a measure that will suspend a doctor's license if that doctor has three malpractice payouts.  As interesting as this concept is, that's not what I want to discuss. 

Instead, take a look at this quote:

Yelverton is among the physicians caught in the middle of the fight.

Like thousands of other Florida doctors, he has never gotten in trouble for making a mistake. He has delivered more than 10,000 babies in his 33-year career -- enough, he notes, to make a "whole little town."

But the 63-year-old increasingly feels it was just not worth it to be a doctor in this state, and he now works in the front office of his practice to develop procedures to reduce the risk of medical mistakes.

One reason he stopped seeing patients and delivering babies was the increase of the cost of his malpractice insurance, and the feeling that at any time he could lose a bundle in a lawsuit, whether it had merit or not.

"The hardest thing about giving up a very successful practice of 33 years is that your patients have come to rely on you for what they consider quality medicine and they have to find someone else," Yelverton said. "And it's one less experienced doctor."

So, in 33 years, and through 10,000+ deliveries, this doctor had never had a malpractice payout - but malpractice insurance rates are driving him out of medicine.  Will someone please explain to me doctors don't lobby for insurance rate caps instead of trying to cap malpractice payouts? 

Thoughts on Vioxx

The Vioxx debacle should teach us a few things:

1. Corporations will sell products that kill people if the product is profitable.  Such is the way of the capitalist system.  (And I support that system.)
2. According to this article the FDA is helpless, clueless, and toothless.
3. It would be a very, very bad idea to pass legislation that bars lawsuits against a pharmaceutical if the drug in question passed FDA tests. 

This article, however, shows that the Bush administration has changed existing Justice Department policy, and hopes to prevent lawsuits against drug manufacturers if the FDA approved the drug:

"The administration contends that consumers cannot recover damages for such injuries if the products have been approved by the Food and Drug Administration. In court papers, the Justice Department acknowledges that this position reflects a "change in governmental policy," and it has persuaded some judges to accept its arguments, most recently scoring a victory in the federal appeals court in Philadelphia.

Allowing consumers to sue manufacturers would "undermine public health" and interfere with federal regulation of drugs and devices by encouraging "lay judges and juries to second-guess" experts at the FDA, the government said in siding with the maker of a heart pump sued by the widow of a Pennsylvania man."

I think there's a typo in that article, though. I'd put quotes around "experts" in the phrase "experts at the FDA."

More on McDonald's

Not surprisingly, the "McDonald's Coffee Case" is still one of the top searches bringing people here, and lately, it's also been a big comment generator.  Here's a couple more points for your consideration.

1: Yes, Stella was negligent in placing the coffee in a place where it could spill in her lap.  The jury found her to be 20% at fault, so her verdict was reduced by 20%. 

2: The big problem people seem to have with this case is understanding that the punitive damages weren't awarded to Stella for spilling coffee on herself, but against McDonald's for serving a dangerously defective product. 

Many times - including in this case - the facts don't matter as much as the principle.  The principle here is simple: If you're selling a beverage to someone, you're implying that while it may be hot, it's not dangerously hot.  And 190 degrees is dangerously hot.  For example:

• A 108 degree bath is too hot for most people.
• Most kitchen faucets don't get above 115 degrees.
• Experts recommend setting your hot water heater at no more than 120 degrees to prevent burns.
• Hair dryers won't go above 140 degrees, because that's enough to burn someone's head.
• Hair curlers rarely top 160 degrees, because that's hot enough to burn someone in one second.  And ask any teenage girl how painful a hair curler burn is.
• Many cars have a 180 degree thermostat, and there's no question water from a car radiator is too hot to drink.  Stella's coffee was ten degrees hotter than that. 

So regardless of whether Stella was clumsy, the point is that she was sold a defective product: McDonald's represented that the coffee was safe to drink, and it wasn't. Their own expert called the coffee "unfit for human consumption." 

But I can try to convince you that the coffee was dangerous until I'm blue in the face.  Instead, I've got a better idea: Put on a pair of cotton jogging pants, and buckle yourself in the car.  Then, dump 190 degree coffee on your crotch and struggle to get your pants off in the moving vehicle.  After you're released from the burn ward, repeat with 160 degree coffee, and let me know which is safer.

Haven't U.S. Jury Verdicts Driven Manufacturers Out of Business and Put People Out of Work?

No.

Tort reformers often argue that large jury verdicts and the high liability insurance rates they bring have forced U.S. manufacturers to shut their doors, thus putting people out of work and abandoning markets to foreign manufacturers.

However, there's a problem with that theory: Any foreign corporation that does business in America has consented to be sued in American courts. Thus, foreign manufacturers are also routinely sued in American courts, under American law, and subjected to American jury verdicts.

So, why aren't foreign manufacturers being driven out of business - or at least out of this country - by American jury verdicts?

There are two possibilities as I see it. The first possibility is that foreign manufacturers just make better, safer products than their American counterparts. If this is true - and I doubt it is - then American consumers are better off.

The second possibility is that other factors have caused manufacturers to shut their doors. Between our high taxes on gas and the ability of foreign competitors to pay .10 per hour for labor, it's easy to see why American manufacturers can't compete with their foreign competitors. And those factors have nothing to do with our justice system.

The "Lawsuits put people out of work!" argument is flawed because foreign manufacturers are able to flourish in the U.S. market, despite their exposure to the same "runaway verdicts" that are supposedly putting American manufacturers out of business.

So I'm left to wonder - Why aren't foreign corporations going out of business because of "runaway jury verdicts," and why aren't foreign insurance companies raising their liability rates because of "frivolous lawsuits?"

Could it be that American corporations are going out of business because of a poor economic climate, and that American insurers are raising their rates because they made bad investments? You decide.