AMERICAN CONSERVATISM IN 2008 AND BEYOND

When you offer a reasoned and supportable argument of your own, then you will find out whether I have 'folded'.

From the "CATO handbook for policymakers":

Quote:

Many observers have called on the federal government to enact such reforms. As discussed in Chapter 11, Congress is not constitutionally authorized to impose substantive rules of tort law on the states. Although the federal government may enact technical procedural changes, state legislatures are the proper venue for correcting excesses in their civiljustice systems. The fact that medical professionals can avoid states with inhospitable civil justice systems gives them significant leverage when advocating state-level medical liability reforms, and gives states incentives to enact such reforms. That some states have done so demonstrates that they have the ability.

Yet state-imposed medical malpractice reforms share two flaws with federally imposed rules. As noted earlier, imposing one set of limits on the right to sue for medical malpractice on all patients and providers will help some patients while hurting others. And the fact that those rules are written into statutes makes harmful rules extremely difficult to remove.

Yet state-imposed medical malpractice reforms share two flaws with
federally imposed rules. As noted earlier, imposing one set of limits on
the right to sue for medical malpractice on all patients and providers will
help some patients while hurting others. And the fact that those rules are
written into statutes makes harmful rules extremely difficult to remove.

A more patient-friendly and liberty-enhancing approach would allow
patients and providers to write their own medical malpractice reforms into
legally enforceable contracts. For cases of ordinary negligence, patients
could choose the level of protection they desired, rather than have a
uniform level of protection (and the resulting price) imposed on them by
the courts. Providers could offer discounts to patients who agree to limits
on compensation in the event of an injury. If not, the patient could pay
the higher price or seek a better deal from another provider. Insurance
companies could facilitate such contracts on behalf of their enrollees.

Those companies would have strong incentives to ensure that those contracts
provide adequate protection, else the insurers could face higher
claims from injured patients who could not collect the full extent of their
damages. The regular tort rules would continue to apply in cases where
patients and providers did not contract around those rules, where patients
were subject to duress, or where providers were guilty of intentional
wrongdoing or reckless behavior.

Freedom of contract would make medical care more affordable to many
low-income patients. It would also enhance quality competition. Providers
who know they are less likely to injure patients could offer more expansive
malpractice protections, or equivalent malpractice protections at a lower
cost. Low-quality providers would not be able to do the same and would
face strong financial incentives to improve their processes of care.

Such contracts are not possible today because courts have invalidated
them as ‘‘against public policy.’’ That policy has restricted the freedom
of adults to make mutually beneficial exchanges that hurt no one else. It
has also increased the cost of providing medical care to the indigent,
which has undoubtedly reduced their access to care.

To remedy this costly restriction on liberty, courts should abandon their
current policy and enforce contractual limitations on the right to sue for
medical malpractice. If courts refuse, state legislatures should require them
to do so. Economist Richard Thaler and law professor Cass Sunstein write:
In our view, state lawmakers should think seriously about increasing freedom
of contract in the domain of medical malpractice, if only to see whether
such experiments would reduce the cost of health care without decreasing
its quality. Increasing contractual freedom won’t solve the health care crisis.
But it might well help"and in this domain every little bit of help counts.
As noted earlier, the medical malpractice system does a poor job of
providing relief to injured patients, preventing frivolous lawsuits,
or discouraging negligence. The remedies for these shortcomings are not obvious.

A dynamic marketplace that allows parties to experiment with"and
abandon"different malpractice rules is the quickest and surest way to
find those solutions.

Congress's currently proposed health care plan consists of the following:
(1) ... ?
...
(...) ... ?

It has been shown here in this thread that in several states (e.g., Texas), when states set a maximum on tort non-expenses, the cost to medical practicianers of tort insurance decreases significantly. It is certainly not unreasonable to expect that as a consequence the cost of private health care insurance will increase at a slower rate, or even decrease.

Because it argues against tort reform on the federal or state level. I just quoted it. It's in the paper you've been linking to numerous times. You did actually read the paper, didn't you?

It has been shown here in this thread that in several states (e.g., Texas), when states set a maximum on tort non-expenses, the cost to medical practicianers of tort insurance decreases significantly.

The role of government should be to prevent us from violating the constitutional, legal, civil, and unalienable rights of each other, and to prohibit the courts from having license to do so. Then the government should get out of the way and allow the free market to work.

Foxfyre wrote:

Are doctors and medical providers in Germany subject to the same degree of frivolous lawsuits as are those in the USA?

Well, we have a different legal system. I seriously doubt you're proposing to switch to a Roman law system.

I'm not comparing legal systems. I am asking a question that can be answered "yes", "no", or "I don't know" quite easily. Of course some elaboration on the answer would actually contribute something to the discussion here.

Are doctors and medical providers in Germany subject to the same degree of frivolous lawsuits as are those in the USA?

There is a reason that tort reform in Texas and Missouri, though producing substantial benefits to the people of those states in increased access to medical care and more medical care being available, has not apparently significantly reduced medical costs that continue to rise.

The role of government should be to prevent us from violating the constitutional, legal, civil, and unalienable rights of each other, and to prohibit the courts from having license to do so. Then the government should get out of the way and allow the free market to work.

In July 2007, Barack Obama promised a group of his supporters that, if elected president, he would sign perhaps the most evil piece of legislation in the history of our republic.

It's called the "Freedom of Choice Act," or FOCA -- but don't let the Orwellian title fool you. It isn't about "freedom" or "choice" at all. It's about forcing each and every American citizen -- regardless of his or her view on abortion -- to support abortion-on-demand not just as a "fundamental right" but as a taxpayer-funded entitlement.

But the compulsion wouldn't stop there. Because FOCA would also run roughshod over the conscience rights of doctors, nurses, and hospitals that oppose abortion on religious or moral grounds -- forcing them to provide or counsel for abortion or face professional de-certification, loss of funding, lawsuits, and even prosecution.

Not only that, FOCA would immediately strike down any and all state restrictions on abortion -- even those with wide popular support, such as prohibitions on partial-birth abortion and parental notification requirements for minors seeking abortions.

Make no mistake: FOCA is the most radical piece of pro-abortion legislation ever proposed, one that would go far beyond Roe v. Wade in making abortion a government-protected and taxpayer-supported "right," through all nine months of pregnancy.

The bills were referred to the Judiciary Committees of the respective Houses. Neither bill received further action in the 108th Congress. The bills were reintroduced in the 110th Congress, but, like their predecessors, were referred to committee without further action. As of June 2009, the bills have not been introduced in the 111th Congress.

During his tenure in the United States Senate, Barack Obama co-sponsored the 2007 Senate version of the Freedom of Choice Act (S. 1173). Responding to a question regarding how he would preserve reproductive rights in a speech given to the Planned Parenthood Action Fund on July 17, 2007, Obama declared, "The first thing I'd do, as president, is sign the Freedom of Choice Act. That's the first thing that I'd do."[4]

In a press conference on April 29, 2009, President Obama said that although he supports a woman's right to choose, passage of the Freedom of Choice Act was "not highest legislative priority."[5]
http://en.wikipedia.org/wiki/Freedom_of_Choice_Act

http://blogs.wsj.com/health/2008/05/19/doctors-flock-to-texas-after-tort-reform/?mod=WSJBlog
May 19, 2008, 7:44 AM ET Doctors Flock to Texas After Tort Reform

By Scott Hensley
In the last three years, 7,000 doctors have moved to Texas. So many doctors want to practice there that the state has had trouble keeping up with the requests for licenses.

Texas Capitol
How come the flood? A clampdown on damages in malpractice suits has made Texas a very attractive place to practice medicine, says an opinion piece in the WSJ.

The most significant change is a $250,000 cap on non-economic damages per defendant, such as pain and suffering and loss of companionship. “Before the caps, the average award was $1.21 million; it’s been $880,000 since,” the Dallas Morning News reported last year.

Malpractice suits have plummeted. In 2003, before the caps took effect, there were 1,108 medical liability suits filed in Dallas County, the Morning News reported. Only 142 cases were filed in 2004. Last year there were 184.

Proponents of malpractice reform point to Texas as a model. The surge of doctors has helped relieved shortages in some rural parts of the state.

http://www.dallasnews.com/sharedcontent/dws/bus/stories/DN-medmal_17bus.ART0.State.Edition2.43983f4.html
...
Texas wasn't the first state to limit noneconomic damages; California set a $250,000 cap in 1975. But such caps are hardly universal.

Since Texas capped its damages, similar legislation on the federal level and in other states has been rejected " most recently in Oklahoma, where in April the governor vetoed damage caps, fearing they were unconstitutional and wouldn't solve the problem of frivolous lawsuits.

Today, only California, Texas, Montana, Alaska, Kansas and Ohio have caps as low as $250,000, according to the National Conference of State Legislatures. Some other states " including Idaho, Michigan and West Virginia " have limits that rise with inflation.

Twenty states have no limits on damages for pain and suffering.
...

Doctors have seen their costs fall for liability insurance as malpractice insurance companies return to the state and to profitability. There is no evidence of savings to Texas consumers, however.

Foxfyre wrote:

There is a reason that tort reform in Texas and Missouri, though producing substantial benefits to the people of those states in increased access to medical care and more medical care being available, has not apparently significantly reduced medical costs that continue to rise.

Can you provide a link to some data that shows that tort reform in Texas and Missouri increased access to medical care and made more medical care available?

Foxfyre wrote:

The role of government should be to prevent us from violating the constitutional, legal, civil, and unalienable rights of each other, and to prohibit the courts from having license to do so. Then the government should get out of the way and allow the free market to work.

That's all very nice and sounds very patriotic, but what does that mean for tort reform?

You haven't even stated what kind of tort reform you'd like to see. You have made the claim that tort reform would bring down the cost of health insurance premiums (which you have so far failed to back up with some data), and that health care reform should include (some unspecified kind of) tort reform.

The CATO paper doesn't contain any data on your first claim, and it argues against federal or state-imposed medical malpractice reform. I wouldn't say it supports the argument you've been making here so far.

Are you now changing your position and saying that tort reform should not be part of health care reform, and that instead it should be up to patients themselves to negotiate contracts about the extent of medical malpractice protection?

http://www.tortreform.com/node/545
Texas Can Demonstrate Success Of Tort Reform
Tyler Morning Telegraph, September 15, 2009
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In his speech on health care reform, President Barack Obama expressed a willingness to consider tort reform as a part of the plan; he added he'll look to the states to see if it can make a difference.

"Many in this chamber -- particularly on the Republican side of the aisle -- have long insisted that reforming our medical malpractice laws can help bring down the cost of health care," Obama said on Wednesday night. "I don't believe malpractice reform is a silver bullet, but I have talked to enough doctors to know that defensive medicine may be contributing to unnecessary costs. So I am proposing that we move forward on a range of ideas about how to put patient safety first and let doctors focus on practicing medicine. I know that the Bush administration considered authorizing demonstration projects in individual states to test these issues. It's a good idea, and I am directing my Secretary of Health and Human Services to move forward on this initiative today."

We're way ahead on this one.

Texas has already demonstrated how malpractice reform can make life better for millions of people.

"Since 1995, no state has done more than Texas to restore the trust of citizens in their court system," notes the Texas Public Policy Foundation. "Tort reform has lowered liability costs for numerous occupations, reduced frivolous lawsuits, and reduced overall costs to businesses and consumers in Texas. Texas' efforts to reform its tort system have been successful in lowering medical malpractice premiums and attracting physicians to Texas."

http://abriefhistory.org/?tag=health-care
The Republican Plan
Thursday, September 17th, 2009
Today, the left is panicking that the Blue Dogs may abandon Obamacare as a bad job and join the House Republicans in supporting HR 3400. What does it do ?
Let’s go through them one by one.

1. Makes individual health insurance premiums tax deductible.
2. It has a refundable tax credit for low income purchasers.
3. Makes block grants to states for reinsurance pools for pre-existing conditions. That sounds like the 2004 Kerry proposal.
4. Supports employer sponsored plans.
5. Provides “Portals” to assist in buying insurance.
6. Makes employer insurance defined benefit so the employee owns it, like 401Ks, I think
7. Creates pools for insurance and allows interstate purchase of health insurance.
8. Medicaid and SCHIP are given the option of vouchers.
9. States must cover 90% of those below 200% of poverty level before eligibility can be expanded.
10. Involves specialty societies in quality improvement.
11. Improves primary care and “continuity of care” reimbursement.
12. Allows discounts for wellness programs.
13. TORT REFORM !!!
14. The usual “waste, fraud and abuse” rhetoric.

It will be interesting to see where this goes. The House leadership has already produced a response but there seems to be some disagreement on the actual provisionsof the bill, as would be expected.