Tort Refrom

I'm not sure we'll see lowered medical bills from this. We might, since the cost of malpractice insurance may decrease, but this isn't where most of the problem lies anyway (for that, you'll have to address the drug companies).

The way I see it, the best way to achieve tort reform in such a manner as to reduce frivolous lawsuits would be a simple redo on the rules concerning rewards. Namely, as follows:

• Compensatory damages, if awarded, go directly to the defendant.
• A portion of any punitive damages imposed will go toward paying court costs and legal fees for both sides. Because of this, punitive damages may not be less than what would be required to pay these fees. There is no upper limit on punitive damages, however...
• Once enough has been taken out of the punitive damages to pay court costs, any remainder will go not to the defendant, but to the state which has jurisdiction (or the federal government if no state has jurisdiction), where ideally it will be earmarked for some purpose relevant to the case.

The idea behind this is to bring the idea of a lawsuit back to its original purpose: namely, to be able to bring the force of law to fair compensation, not as a relatively quick way to make a few million bucks because you spilled coffee in your lap. At the same time, it retains the concept of punitive damages, which do serve a useful purpose, but it does so in such a way that it is not as easy to abuse.

I'm all for torte reform. The black forrest cake at my local cake shop needs a LOT of improvement.

Oh... tort reform...

Isn't that a little circular?

That would definitely lower malpractice premiums.

I think by defendant (the party being sued) you really mean plaintiff (the party suing).

I'll have to read the case before drawing any conclusions. The whole point of punitive damages is to punish the defendant and deter the obnoxious behavior. If you place too many limitations on that, it could become meaningless. Of course, some states don't allow punitive damages in the first place, so the point is often moot.

I think you make a good point, though - if punitive damages are to be allowed, they should not necessarily result in a windfall to the plaintiffs and their lawyers (assuming that the plaintiffs and their lawyers have been fairly compensated). Apply the punitive damage funds to some higher purpose.

Obviously you mean plaintiff, but nevertheless I don't much like it, nor do I see it being practical.

Without contingency fees, poor people cannot afford to sue. That's a bad idea, since it allows tortfeasors to do bad things to poor people with impunity, as long as they avoid criminal prosecution.

And not every case can support punitives, you know.

I have yet to see a balanced argument for tort reform, I'm afraid, and I don't see serious problems with the status quo.

He raises an interesting pont though: why should punitive damages go to the plaintiff? If their purpose is to punish the defendent, why should they reward the plaintiff? We're not talking about any damages other than punitive, AFAIK, so pain and suffering, damages, etc would all be status quo.

He also throws in another interesting monkey wrench: minimum punitive damages to cover court costs. I've heard it speculated that you could reduce frivolous lawsuits by using a system where the loser has to pay the cost of the action going to court. That, too, sounds reasonable to me...

BlackGriffen

Edit: Stupid legalese at midnight...

A "loser pays" system would reduce frivolous suits from people who can't afford them, but it would not necessarily reduce frivolous suits from people who can afford them. Those who can afford to could still abuse the system.

Additionally, as ck suggests, while it would reduce frivolous suits, it would also tend to discourage many potentially valid suits from people who don't have a lot of assets.

It's a tough call, but I tend to agree with ck that the potential for abuse is outweighed by the merits of making the system accessible to everyone.

I defer my opinion on this matter to whatever Simey says.

As far as torte reform, you can't have your cake and eat it too, Face Ache.

What I say? Hang on, I'm not the only law student here. More to the point, zigzag is the one with actual legal practice experience. I am a mere lawyer larva.

However, you are a lawyer larva that I tend to agree with very often.

I think the argument that skyrocketing medical costs are the fault of lawsuits ("frivolous" or not) is pretty bogus.

As I see it, the problem is Insurance companies and how they are regulated and how they dictate everything that happens in the medical field.

My boss, our CTO, was a pre-med student who worked his way through UCLA as an ambulance driver. He quit because he eventually came to the conclusion that nobody in medicine really worked in medicine--they worked for Insurance companies. They dicatate just about how everything is done by controlling the purse-strings.

So why punish victims and deny their right to redress? Why continue to put the squeeze on doctors as if they have any say in the matter?

I'd like to see statistics from someone that shows that malpractice insurance cost has any real effect on anything.

So do I, but I'm not even convinced insurance is the problem. I think the medical establishment is the problem. The large number of lawsuits shows us that there is a problem: There are too many medical errors. In order to solve this problem, you don't reduce the lawsuits or payouts, you reduce the errors.

Good point. The entire system is predicated on artificial costs. Nothing has any real value. Even the simplest procedure is billed at the maximum that the insurance will allow, so the premiums go up, so the price limits go up, etc. It's almost as if there is a speculative market on medical costs. Doctors aren't the ones doing it necessarily (they don't set costs, per se) and it certainly isn't patients. And I refuse to feel sorry for the trillion dollar insurance industry--they seem to be managing just fine.

Also, I think there is a good deal of cross-pollen thinking when people talk about "frivolous" lawsuits. They think of winners of the Stella Awards (hot coffee in lap lady) and apply that to medical suits.

I hardly think that someone who gets the wrong leg amputated or someone who's child has permanent brain damange because of a medical error is acting "frivolously" even if they sue for a bajillion dollars.

If someone ruined my chilld's life or ruined my life because they were incompetent, you're damn right that I'd sue them for enough money so I could do whatever the hell I wanted for the rest of my life. If your stupidity robs me of my ability to live my life how I want, than I reserve the right to sue you for enough money to live however the hell I can manage from now on.

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No one's saying they can't sue, I'm not even saying that limits should be put on other types of damages, but with the purpose of punshing the defendent, why should punitive damages go to the paintiff?

BG

The large number of lawsuits does not necessarily mean a large number of medical errors. Just a large number of people who think there is a medical error involved. The number of lawsuits WON by plantiffs would be a better indicator of medical errors. An even better number to see would be the percentage of medical malpractice suits that are won vs. how many are brought to court. (This would not take into account any suits settled out of court.)

Because they are the victim. Like I said in my previous post, if someone takes away my quality of life, I reserve the right to sue them for enough money so I can do whatever I want with my crippled arse.

I think the distinction we're trying to make is between compensatory damages (which are intended to compensate the plaintiff for the actual injury), and punitive damages, which are intended not to compensate the plaintiff, but to punish the defendant. The purpose of punishing the defendant is served whether the punitive damages go to the plaintiff or someone else.

Compensatory damages normally include such things as economic loss, pain and suffering, loss of companionship, loss of enjoyment, etc. So if you proved that someone negligently caused a severe, disabling injury to you or your child, odds are good that you'd get enough money to make the best of things even without punitive damages (assuming that the defendant is adequately insured and that the state hasn't placed limits on pain and suffering awards). Some states don't even allow punitive damage awards.

So, assuming that the plaintiff and his lawyer have been adequately compensated for the injury via a compensatory damge award, a reasonable argument can be made that a punitive damages award should not result in a windfall to the plaintiff and his lawyer, but should be applied to court costs and other higher purposes.

Sounds good to me.

Make it so, Number One.

But if the lawsuits weren't being won, there wouldn't be a need for limiting awards.

There was a report a few years ago by the National Academy of Sciences' Institute of Medicine called "To Err is Human," and it presented the case that I'm trying to make here: that there are way too many preventable medical errors. They result in probably 50,000 or more deaths in the US each year. Their case is that insitutional changes could greatly reduce these errors. IMO, the underlying problem is the resistance to implement safety-enhancing changes, not the lawsuits themselves.

Just because a malpractice lawsuit is not won by the plantiff, doesn't mean that there is no cost to the medical-legal system.

It is often the case, malpractice lawyers will pull every doctor who has had contact with the plantiff (whether they had a part in the malpractice in question or not). Each of these doctors' malpractice insurance companies must now hire a lawyer to open a new file. Each time a file is opened it costs the insurance company $5000-$10000 per physician, which is passed on to the physician in higher malpractice insurance rates... even if the case is thrown out of court.

A fair way to do things.... if a plantiff who loses or gets his case thrown out had to pay the lawyers/legal fees for the defendant, And maybe "pain and sufferring" for the physician if found innocent, since the physician had to go through all of this. If the plantiff wins, then there is no cap and, as it is now, the defendant has to pay "pain and sufferring", all medical fees, and legal fees.