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Friday Roundup

Medical malpractice and tort reform.  I ran into a friend of mine the other day at the Justice Center, a lawyer who's in one of the top PI firms in Cleveland.  I knew he used to do a lot of medical malpractice work, and I asked him how that was going.  "Used to" seems to be the operative words.  He told me that some of the guys in his firm still do it, but it's been brutal since the caps on malpractice awards were put in back in 2003.  "Defense firms are laying off people," he told me.  "Filings are maybe 15% of what they were.

Not quite that bad, but the stats do bear out that there's been a substantial fall-off.  According to the annual Ohio courts summary the Supreme Court puts out, there were 6,436 "professional tort" cases pending at the end of the year in 2001, including 2,650 that had been filed that year.  In 2010, those numbers were 3,272 and 1,422, respectively.  It's easy to understand why the falloff occurred, especially given a recent study which shows that only 20% of medical malpractice cases result in a plaintiff's verdict or settlement. 

Whether tort reform has succeeded in doing what it was supposed to do -- eliminate "frivolous" suits, lower medical costs, reduce malpractice premiums -- is another matter.  The first was always a bogus argument.  Given the huge advance layout in med-mal cases -- a lawyer can wind up fronting $100,000 or more for experts -- as the author of the study noted, "A lawyer would have to be an idiot to take a frivolous case to court."  Studies have found that malpractice payouts and premiums are a negligible piece of the health care pie, even if you include the costs of so-called "defensive medicine."  Texas offered a promising example of how caps and other reforms could reduce malpractice premiums:  as this New York Times article indicates, premiums fell an average 21.3% during the four years following tort reform legislation there.  That may be an anomaly, though; this piece notes that while payouts in med-mal cases fell 15.7% between 1991 and 2002 in states with caps on awards, the median annual premium in those states increased 48.2%, actually more than in the states without caps (35.9%).

One might argue that what's happening with medical malpractice isn't much different from what's happening with torts in general.  I know a number of lawyers who dabble in personal injury, who simply won't take the fender-bender/soft-tissue cases any more.  Ten or fifteen years ago, you could take a case like that, with $400 in ER treatment, a few hundred more in doctor's visits, and a grand in physical therapy, and get five or six thousand for it.  Now, the insurance company will offer you $1900 if you're lucky.  If you try the case, it'll cost you another grand to take your doctor's deposition, and in today's climate, a jury won't give you much more than what the insurance company offered.  So you settle the case, cut your fee, spend a few hours on the phone trying to get the medical providers to cut theirs, and you still wind up with a pissed-off client who can't figure out why she only got a few hundred for the same injury that, according to the newspapers, people in California are getting millions of dollars for.

Then again, every now and then the good guys win one.  (And yes, "good" is a relative term here.)  I ran across this story about a personal injury case that was settled after one of the jurors fainted twenty minutes into the plaintiff's lawyer's opening statement.  The plaintiff had suffered multiple breaks of his right leg and a shattered ankle in a truck accident, but 12 subsequent surgeries had resulted in numerous complications and infections that ultimately required the foot to be amputated.  The lawyer was in the midst of explaining one of the procedures, a debridement, in rather graphic detail:  the doctors "cut the infected, rotting flesh out of his ankle. And that includes his skin, that includes the subcutaneous muscle, and that includes dead, rotting, infected bone."  (A demonstrative exhibit of the procedure that the lawyer used in his opening is on the right.)  That proved too much for one of the jurors; other jurors caught her as her eyes rolled back, and that brought a halt to the proceedings as EMS was called.

It also brought a halt to the trial.  Defense counsel stopped the plaintiff's attorneys on their way to lunch, and suggested a resumption of settlement negotiations.  The case was settled for $10 million, four times what the defense had offered before trial, and twice what they'd offered on the day of trial.

One for the road.  Over the objections of police, restaurateurs, and just about everybody except the National Rifle Association, Ohio recently enacted a statute allowing people with concealed carry permits to take guns into bars and restaurants that serve alcohol.  The law's critics have raised the spectre that the law will result in shootouts like the one caught on tape here:


On the other hand, maybe not.  Last year, Virginia passed the same law, and, as this story indicates, the result hasn't been a return to the days of the Wild West:

The number of major crimes involving firearms at bars and restaurants statewide declined 5.2 percent from July 1, 2010, to June 30, 2011, compared with the fiscal year before the law went into effect, according to crime data compiled by Virginia State Police at the newspaper's request.

And overall, the crimes that occurred during the law's first year were relatively minor, and few of the incidents appeared to involve gun owners with concealed-carry permits, the analysis found.

We're not talking a big sample here:  it's only eight fewer incidents than happened the year before.  Still, there were a lot of predictions that broadening concealed-carry laws -- which virtually all states have now -- would lead to shootouts becoming more commonplace, and none of that materialized; in fact, crime is now at its lowest point since the early 1960's.  That's not to suggest that the two are related; correlation doesn't prove causation.  But there may be something more to the observation that an armed society is a polite society than some people would like to admit.


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