A Closer Look

Aren’t you somewhat bewildered when you hear the story of Esau selling his birthright for a bowl of porridge? How could he be so stupid? How could he trade away his inheritance, his special place, for a bowl of soup?

He isn’t the first one. He won’t be the last. Former Senator Bill Bradley caught my attention by getting involved in a battle that I doubt he understands. That’s not a put-down. Most people don’t realize what the issue really is. Bill, as many others, throw around numbers that they can’t support.

I knew they were wrong but I didn’t have the real numbers in front of me. I had to go back and look them up again.

The purported issue is malpractice, its cost and how to solve the problem. That’s what everyone thinks they know.

The actual issue is a Democratic/Republican food fight. The Republicans are upset that the trial lawyers give the Democrats so much in campaign donations. They want to impoverish the trial lawyers so they will have less to donate.

Lawyers may not be among your favorite members of the animal kingdom. That’s a sentiment I share. But, that doesn’t mean they don’t come in handy in certain situations.

Redress:

Noun:

1. The act of redressing; a making right; reformation; correction; amendment.
2. A setting right, as of wrong, injury, or oppression; as, the redress of grievances; hence, relief; remedy; reparation; indemnification

Verb:

1. To put in order again; to set right; to emend; to revise.
2. To set right, as a wrong; to repair, as an injury; to make amends for; to remedy; to relieve from.
3. To make amends or compensation to; to relieve of anything unjust or oppressive; to bestow relief upon.

What would you do if a drunk driver plowed into your brand new clunker replacement? What if you had to miss a couple of paychecks? What if your drunken neighbor shoots some fireworks into your home this coming Labor Day?

Do you just turn the other cheek? I’ve always said I was willing to turn the other cheek but not all four.

There are situations that need to go to court. The federal government and all of the states except Louisiana base their codes on English Common Law. The rights represented therein took hundreds of years to develop. Are you ready to throw them away? They are a part of your birthright. Men both lived and died for them.

Louisiana bases their legal system on the Napoleonic Code, which traces back to the Code of Justinian and its Roman precedents.

They say that one industry needs special protection. We need to give up the right to redress grievances, the right to be made whole when harmed, just for this one special industry. Some say we just need to put caps on awards. Ask the family of a child that will need nursing care and expensive treatments for the rest of his life if $100,000 or $250,000 is a lot of money.

You trust your peers in a jury to rule on life and death in criminal trials. But they tell you that your peers cannot be trusted to make a judgment for monetary compensation. By the way, that jury of peers that can’t be trusted includes you. They are saying you are too irresponsible or too stupid to come to a rational judgment.

The example that always gets mentioned is the “McDonald’s Coffee Suit.” Her name was Stella Liebeck. She was 79 years old. Her grandson was driving but pulled over in the parking lot to allow her to add cream and sugar. She spilt it in her lap. It soaked her sweat pants. She was taken to the hospital where she was kept for 8 days, undergoing skin grafts. She sustained burns over 16% of her body. She later relapsed, requiring her daughter to quit her job to care for her mother.

The jury scoffed when they were first told of the case. The facts caused them to award more than was asked. Rumors put the award as high as somewhere over $30 million. The award was actually $160,000 in compensatory damages plus $2.7 million as punitive damages. That represented two days sales of coffee by McDonalds. The award was reduced to $640,000 but settled out of court for less than $600,000.

She had originally asked for $20,000 to cover her medical bills. Her lawyer offered to settle for $90,000 and later for $300,000. McDonalds had already had more than 700 claims against them for this problem. Her attorney had already successfully gone against them more than 70 times.

McDonalds served their coffee at a significantly higher temperature than other restaurants. They knew they had a problem. An executive testified that it wasn’t a big enough of a problem to do anything about it. McDonalds had the jury on their side, until the facts, and their cavalier attitude, were known.

Malpractice suits and awards have decreased considerably in the past ten years or so. Premiums have skyrocketed. The malpractice insurance companies are the worst players at the Wall Street casinos. The premiums had to increase to cover their gambling losses, not malpractice costs.

How much does malpractice cost us? Remember, there actually is malpractice going on out there in McMedicineland. Bill Bradley said 10% of total healthcare expenditures. Wow! That is a lot. The only problem is that it is wrong. Dead wrong.

That number is a favorite of one side but is based on the discredited work of two professors at Stanford from 1995. For some reason they chose to use data from 1980. After all the static about their first study, they did another study about 2003 or 04. It came in at under 3%.

A recent study by an actuarial firm puts the number under 1½%. The Congressional Budget Office puts it at less than 1%. These numbers purportedly include premiums, court costs, awards and the practice of defensive medicine.

There is a problem right here. All of the tests that physicians order are not defensive medicine. Many are needed for diagnosis. Of those otherwise unnecessary for diagnosis, defensive medicine comes in third place. What? How could that be? What are numbers one and two?

Number one seems to be due to our system. In many cases physicians are compensated for the tests they order. They can make more money by ordering more tests. Also, many labs, perhaps most, are physician-owned. All labs and clinics need to be independent.

The other has to do with where you are. There is a great variance from place to place in how many tests are ordered. Physicians can be shown to largely follow the established custom of their fellows in a given area. If their peers order lots of tests, so will they.

Let’s think about this problem just a mite more. Would other industries be content to see this one industry get off the hook? Would they not push for a similar privileged status? On what grounds would you deny them? If a 60″ flat screen television fell on your head at Walmart, should they be protected from a suit by you?

We are being asked not to sell or trade our birthright. We are being asked to just give it away. A single-payer system would allow physicians to entrust the payment of awards to the government and the government could enforce reasonable guidelines for that protection.

Tagged as: awards, bill bradley, birthright, cbo, coffee, common law, court, insurance, justinian, lawsuit, louisiana, malpractice, mcdonalds, napoleonic code, redress, single payer, stanford, sue, trial lawyers, wall street, walmart