Tort Reform Ignored

[Robert Barney]

A lot of frivolous suits would end if the laws required that the losers in trial had to pay a significant portion of the other side's legal costs.

Currently there is little to discourage a lawyer from taking a case on contingency, speculating that he/she might get a payout from the doctor's malpractice insurer and a cut of that payout. However, if the claim was frivilous, and the lawyer knew he/she and/or their client could end up being the one to have to pay the costs of the other side, then it would encourage the lawyer to be certain that the case was reasonable before beginning it.

 

[somarco]

The individual suits are one thing. Class action suits against providers and in particular, pharmaceutical manufacturers are something else entirely. Class action suits really muck up the works and drive up the cost.

 

[Robert Barney]

At least a class action lawsuit must go through a preliminary legal process to determine if it is really a legitimate class action.

I suspect that class actions would not apply to most medical malpractice claims except for pharmaceutical manufacturers or manufacturers of medical devices such as heart valves.

As such, and with respect to healthcare costs being adversely affected by litigation and the threat of litigation, I don't think there is a great deal that could or should be done about class action lawsuits in the context of healthcare tort reform.

 

[somarco]

Class action will have the effect of lowering the overall cost of medication. I would be hard pressed to name a major manufacturer that has not had to fight, and payoff a big class action suit. I have lost track but seems like there were some pharma's that either folded or sold to other companies due to heavy losses on class action.

Your point is taken, but you need to also consider suits against carriers for denial of claims and rescission. I know rescission is horrible, but the few cases I have followed seem to be quite clear that there was malfeasance on the part of the applicant.

HealthNet comes to mind. They lost a case on a rescission and the lady not only lied about her weight but failed to disclose she had collected on a class action suit involving fen-phen. In order to collect, she had to submit documented proof that she had suffered heart damage.

The court ruled in her favor and against HealthNet.

That is just wrong.

 

[Winter_123]

The individual suits are one thing. Class action suits against providers and in particular, pharmaceutical manufacturers are something else entirely. Class action suits really muck up the works and drive up the cost.

That is an area right there where skilled legislators, lobbyists, and the white house could strike a win-win deal, if such people existed in the current landscape.

Obama et al want to shorten the length of patents on drugs and patentable biological "products." The pharms resist because they have development costs/profits to be recovered and so on. However, if the government offered them some protection from class actions where the drugs were properly reviewed as part of the FDA approval process and provided that the companies committed no fraud in the application then perhaps a deal could be reached. It would shorten the patent process but also shorten the time-to-profit on the drugs because there would be fewer class actions.

For thought anyway. Most likely I am wrong.

 

[Robert Barney]

I take your point on lawsuits eminating from the use of drugs approved by the FDA. The logic is pretty basic, if the government says a drug is safe to use, aren't THEY the entity which is responsible if it turns out it wasn't.

This underlines the whole problem of the Federal government involvement in anything. The Federal government can mandate things and not be responsible for outcome. Worse, the Federal government can be derelict in things that are its responsibility, such as border security, but not be held responsible when illegal aliens drink, drive and kill people, or responsible for the medical care costs of border states who are providing healthcare to illegal aliens who shouldn't be here in the first place.

Why would anyone give the Federal government ANYTHING new to be responsible for, when it cannot deal with what it already is responsible for.

But I digress...
and fume...

But I agree. Some limits should be placed on damage awards for drug and medical companies who are producing services or products that have been approved by the government. That, or the government should probably get out of the approving business, because that itself adds to the cost of healthcare.

 

[Charpress]

The FDA has been a basket case since their approval of Thalydomide produced several score (maybe hundreds?) of babies born without arms and legs.

Now it can take billions and a dozen years to get something new approved.

My wife went to Walgreens today to pick up a prescription for me. I crapped a huge brick when I saw the cost: $165. A lot of money for a 3 oz. tube of what is basically a lotion with a little antibiotic in it. No insurance to pay for it (sob, whine) since I never meet my deductible. Please Mr. President, will you buy this for me? ...but I digress.

It is the system. It is insane. Everybody is afraid of liability. I want the folks who come up with my drugs to have a good bit of fear about liability, but let's find some reasonable middle ground here.

 

[Robert Barney]

Years ago, before anybody invented that little tube, there was no little tube. In those days you took Aspirins and suffered through the problem.

Nothing prevents anyone from pursuing that course of treatment today, and it will save a lot of money.

But I think that we all like the miracle stuff that they're coming up with these days, but it costs a lot of money to come up with it. Who pays? If drug companies can't make money back on their R&D, then why do the R&D. But if the stuff backfires, then they need to add to the R&D the cost of settling litigation. It just jacks up the price of your little tube.

You're right, we need to strike a balance but the last people that we need getting rich from our medical advancements are trial lawyers. If you think drug companies are making too much money, at least you can buy their stock.

 

[somarco]

Obama et al want to shorten the length of patents on drugs and patentable biological "products." The pharms resist because they have development costs/profits to be recovered and so on.

This is just another example of how ignorant they are of market forces.

If you shorten the timeline for recouping R&D, the price goes up.

if the government says a drug is safe to use, aren't THEY the entity which is responsible if it turns out it wasn't.

How many successful suits have been filed against the FDA?

Yeah, I didn't think so.

 

[ins.dave]

Class action will have the effect of lowering the overall cost of medication. I would be hard pressed to name a major manufacturer that has not had to fight, and payoff a big class action suit. I have lost track but seems like there were some pharma's that either folded or sold to other companies due to heavy losses on class action.

Your point is taken, but you need to also consider suits against carriers for denial of claims and rescission. I know rescission is horrible, but the few cases I have followed seem to be quite clear that there was malfeasance on the part of the applicant.

HealthNet comes to mind. They lost a case on a rescission and the lady not only lied about her weight but failed to disclose she had collected on a class action suit involving fen-phen. In order to collect, she had to submit documented proof that she had suffered heart damage.

The court ruled in her favor and against HealthNet.

That is just wrong.

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Granted, but that HealthNet deal was kind of sideways from the get go in my limited experiece with them. Their plans SKYROCKeted upon renewal or were replaced by an even worse plan. Their u/w was laughable. To me, it was basically, take almost anyone and then don't renew the plan or price them out at renewal. Blatantly so. Contrators and Merchants association. The main guy (out of Cali?) would shop the 2800 members to different insurance carriers each year. I thought the entire thing was basically a hustle. Only people medically ineligible with other carriers would consider it? One of those "block' deals you mentioned earlier where the entire group could be canceled or not renewed?
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Over time, Obama will make any doctor who accepts public funds a quasi-governmental employee. Thus they will have sovereign immunity and will be immune from tort actions unless the government gives its permission to sue.

Change you can believe in.

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He'd need to see a second term to be able to do that.