Punitive Damages And Tort Reform

[KingMerv00]

Are you even reading what I post?

So it's OK when the courts destroy entire industries without any scientific evidence, have lay people determining scientific "facts",

I did not even imply it was a little OK. I said the problem wasn't the system in that case. The problem was people OUTSIDE the system (ie ignorant juries) coming in and doing a poor job of interpreting evidence.

...and yet the need for tort reform is a myth?

In my very first post in this thread, I said that there was a need (though exaggerated) for some reform.

Stats please.

Pretty please?

 

[Darth Rotor]

I did not even imply it was a little OK. I said the problem wasn't the system in that case. The problem was people OUTSIDE the system (ie ignorant juries) coming in and doing a poor job of interpreting evidence.

Respectfully, Merv, juries, stupid and otherwise, are part of the system.

 

[KingMerv00]

Respectfully, Merv, juries, stupid and otherwise, are part of the system.

Fine. I'll define "system" to include juries. My point remains the same. Tort reform wouldn't fix the problem unless you are willing to abolish or constantly overrule juries.

 

[KingMerv00]

http://www.texmed.org/Template.aspx?id=5238

May it please the court, this source is IMO a bit biased, however, interesting numbers. Anecdotally, my county stopped losing OB's since Prop 12 was passed. They were leaving in carloads, due in part to the barrage of lawsuits. I lost three co workers between 2005 and 2006, they moved out of town. In each case, husban or wife worked for an attorney business dried up when that lawsuit bonanza, in Ortho and OB, in our county slowed down.

This is a zero sum "health care reform" measure, since some other place lost the MD's who came back to our county.
Some points to ponder:
[/b]
It is likely that tort reform is but one of a number of factors involved. According to the doctors I know, tort reform had a huge impact in this change of environment, i.e., not running doctors off.

DR

Woah there Darth,

The rules of this thread require that you first use strawmen and hasty generalizations...THEN you can post stats.

(Seriously though, I look at them in a bit.)

 

[WildCat]

Well, given that "tort reform" proposals wouldn't address the problem of "lay people determining scientific facts,".... yes, the need for tort reform is a myth.

Since when was this topic limited to proposed tort reforms?

I'm proposing tort reform where scientists determine scientific facts, not juries or judges. Make the plaintiff prove the scientific claim by accepted scientific means before the lawsuit can proceed.

Who besides John Edwards loves a system where scientific fact is determined by how sympathetic the victim is?

In real actual cases we have jurys finding that cerebral palsy is caused by doctor errors at birth and silicon breast implants cause connective tissue diseases.

 

[NoZed Avenger]

I am not aware of any reliable statistics on this problem; they are not going to be thick upon the ground.

I think, contrary to what several people have averred, there are frivolous lawsuits. That is just my opinion as a trial attorney, and is based on my experience and from conversations with other attorneys. However, most 'tort reform' measures proposed in the recent past -- including damage caps -- would not have any effect on the actual problem cases.

The biggest problem with the court system in my state is on the criminal side. Criminal prosecutions -- and by that, I mean drug-related cases -- are taking up a huge portion of the docket and slowing the system down considerably.

On the civil side, the largest problem (from a volume perspective) are the small injury claims, not the large awards. You have lawyers working with (generally) chiropractors. The lawyer sends a new client to the chiropractor, whether any treatment is needed, or not, while the chiro sends new patients to the lawyer to bring suit. The chiro generates bills over and above what the patient would need (or simply overcharges), knowing he or she will then cut the 'medical' bill by 50% or more when the lawyer manages a settlement.


An example pulled from the air. I cannot prove how representative it is, nor will there be good stats to show that: Say the plaintiff has a sore neck. It might go away with no treatment, or it might need some type of physical therapy. He may at least want it checked out -- let's stipulate the reasonable medical costs would normally be $1,000-$1,200.

The plaintiff gets referred to the accident chiro. The chiro -- luckily enough -- owns his own MRI clinic. The patient will need an over-priced (compared to the market) MRI. An MRI of anyone over 30 will turn up bulges or some type of anomaly which will be considered potentially related. And will require treatment 3 times a week for a minimum of 2-3 months.
Total medical costs are now $7,000. Add pain and sufffering and a threat the medical treatment might need to continue in the future, and the plaintiff's attorney uses the genned-up medical reports to demand $20,000. Say he s fairly lucky ends up settling for $8,000. On a claim with perhaps $1,000 in legitimate medical costs.

That is not atypical.

Why would the other side settle? That result is certainly not guaranteed, but consider this: to fight the chiropractor's records, the defense will need to hire a medical expert ($), pay the attorney to fight the case potentially through trial ($), plus al the other time and costs associated with the case. Say the defense "wins" and hold the damages down to $1,500. Congratulations, you've just spent $4,000 for the doctor, $3,000 for the attorney, and $1,000 in other court costs. So instead of "losing" and settling for $8K, you've "won" and are out only $9.5K.

Congratulations.

No current tort reform effort I am aware of will fight that properly.

 

[pgwenthold]

I have proposed in the past a change to have "punative damages" paid to the government, and not to the defendent (minus a reasonable the lawyer cut, of course, although I'd make the lawyer cut less than what they can take on actual damages). My reasoning is that if I get in a car accident and am charged with "reckless driving," I pay for the actual damages I have caused the other party but pay my fine to the government.

Now, there are some counter arguments here, and I'm not even sure it is constitutionally allowed, but that is something I would like to see. It would prevent defendants from cashing in on the big settlements, and from their perspective, would be more focused on fixing the damage that has been done.

 

[drkitten]

I have proposed in the past a change to have "punative damages" paid to the government, and not to the defendent (minus a reasonable the lawyer cut, of course, although I'd make the lawyer cut less than what they can take on actual damages). My reasoning is that if I get in a car accident and am charged with "reckless driving," I pay for the actual damages I have caused the other party but pay my fine to the government.

The only problem with this is that punitive damages are, by and large, a non-issue. They simply don't come up that often (the stats I've seen suggest that fewer than 4% of cases have punitive damages awarded at all) and case law restricts punitive damages to a relatively small multiple of actual damages. The idea that I could win a few hundred in actual damages and a few million in punitive damages is quite literally untenable.

Mind you, I see little actual harm from this proposal, but also little if any good, and it's almost certainly not worth the political capital it would take to implement it.

 

[Meadmaker]

Doctors, small business owners, and businesses large and small that develop products all insist that the tort system in this country is a major headache.

I don't run a business, but I do put on not-for profit events, and over the years I have found it harder and harder to find schools or churches that will let me use their facilities, and the reason is always the same: liability insurance.

Our legal system has consequences. Some are positive. Some are negative. I think that people often underestimate the negative side. They don't make the connection between the lawsuits they hear about, and the cub scout troop that cannot hold a potluck.




(For what it's worth, the club I have held the most events with does in fact carry its own liability insurance, and that helps us with some, but not all, facilities we would like to use. Even with it, some places that used to let us use their facilities no longer will do so.)

 

[Beerina]

Caps on damages does not address frivolous lawsuits. Damages are only awarded in cases the plaintiff wins. If the plaintiff wins, the case has to have had merit.

Bzzzt! Sorry, thanks for playing.

 

[drkitten]

Doctors, small business owners, and businesses large and small that develop products all insist that the tort system in this country is a major headache.

Of course they do. It's standard practice to whine about things in the hopes that the legislature will deliver a windfall jackpot to you. That's one reason I don't take lobbyists at all seriously.

I don't run a business, but I do put on not-for profit events, and over the years I have found it harder and harder to find schools or churches that will let me use their facilities, and the reason is always the same: liability insurance.

Translation : you're too cheap to carry enough insurance yourself to cover any potential liability for your own actions, so you can't afford to indemnify the places you want to rent from.

(For what it's worth, the club I have held the most events with does in fact carry its own liability insurance, and that helps us with some, but not all, facilities we would like to use. Even with it, some places that used to let us use their facilities no longer will do so.)

Goodness me. So, you're freeloading off someone else's insurance and wondering why other people object....

 

[pgwenthold]

Doctors, small business owners, and businesses large and small that develop products all insist that the tort system in this country is a major headache.

I'm not sure if that means much. For example, maybe 10 years ago, anesthesiologists would have said the same thing. Nowadays, they are doing just fine. Not because of tort reform, but because they took it upon themselves to provide a means to prevent mistakes from happening. That's a good thing. The lawsuits served their purpose, and as a result, there are fewer people harmed by mistakes of anesthesiologists.

It's unfortunate that taking enough care to provide safe healthcare and products causes people such a headache.

 

[drkitten]

Bzzzt! Sorry, thanks for playing.

Oh, yes. Because a judge and jury in 1984 are supposed to be able to infer the contents of a medical report issued in 1999.

Cases are decided on the basis of the evidence you have, not the evidence you wish you had. Even in 1991, the FDA decided that it had no basis to decide that breast implants were safe. Given a medical expert testifying to the presence of silicone in the plaintiff's lymphatic system right now, and a wishy-washy safety report from the FDA, it's hard for a jury or a judge to decide to overrule the experts.

 

[Meadmaker]

It's unfortunate that taking enough care to provide safe healthcare and products causes people such a headache.

Certainly the threat of lawsuits improves safety. What I'm getting at is that sometimes, it goes a lot farther than people want.

Cub Scout potlucks truly are dangerous, at least from a statistical point of view. The food is not typically prepared, stored, or handled safely. It typically sits unattended while an awards ceremony is happening. It's a food safety nightmare.

Due to insurance related concerns, more and more facilities have blanket "no food" policies, because they know that in our system, the operator of the facility might be held liable if someone gets sick after eating Mrs. Smith's Baked Beans and Mayonnaise Casserole at the Pack 666 potluck held at the First Baptist Church. The world is a safer place as a result. But is it a better place?

 

[ponderingturtle]

"Frivolous lawsuits" are a right wing myth. Truly frivolous suits are simply thrown out of court. Often, the losers of lawsuits are made to pay for the defendant's legal fees. Anecdotal examples of outrageous monetary rewards won by frivolous are largely made up or exaggerated (the McDonalds coffee case being a famous example). Corporations would love to limit the public's ability to sue which is why this whole concept of "tort reform" was manufactured in the first place.

It depends on how friviolus the lawsuit is. It could be with out merit, and companies just settle instead of fighting it.

 

[KingMerv00]

Cub Scout potlucks truly are dangerous, at least from a statistical point of view. The food is not typically prepared, stored, or handled safely. It typically sits unattended while an awards ceremony is happening. It's a food safety nightmare.

Due to insurance related concerns, more and more facilities have blanket "no food" policies, because they know that in our system, the operator of the facility might be held liable if someone gets sick after eating Mrs. Smith's Baked Beans and Mayonnaise Casserole at the Pack 666 potluck held at the First Baptist Church. The world is a safer place as a result. But is it a better place?

The way you describe it? Yes.

If the food is really so deadly, maybe you shouldn't be serving.

 

[ponderingturtle]

That wasn't so much a problem with the legal system as the lack of science education in America. The judge is not supposed to determine (except in extreme cases) whether or not the scientific evidence is reliable, that's up to the jury. Sometimes juries suck. That doesn't mean I want to get rid of them.

Is there a way around this though? if one side doesn't want a scientificaly literate jury how do you prevent them from getting it?

I have wondered about profeshional juries with people trained to evaluate evidence.

 

[psychictv]

I'm in favor of anything that can help eliminate cub scout potlucks from our society.

 

[ponderingturtle]

I have always thought of tort reform as tort deform. Mostly, I hear about it from corporations and their lap dogs and lobbyists looking to shirl responsibility for bad conduct.

Frivilous lawsuits are probably not the huge problem that the right wing claims they are. Crazy Pants is in a class by himself.

How does he really compare to say the Corndog lawsuit against JREF?

 

[ponderingturtle]

Doctors, small business owners, and businesses large and small that develop products all insist that the tort system in this country is a major headache.

People always complain. Look at taxes. The ideal tax is from Monty python "I suggest we tax all foreigners living abroad". That way no one has to pay it.

I don't run a business, but I do put on not-for profit events, and over the years I have found it harder and harder to find schools or churches that will let me use their facilities, and the reason is always the same: liability insurance.

The thing is, is this an issue of perception of fact that is resulting in these decisions? People will always make CYA decisions, regardless of if the decision actually covers their ass or not.