Tort Reform - good, bad, or ugly?
October 31, 2007 10:45 PM Subscribe
Do you support "tort reform? Why or why not?
I am doing an informal survey. I would appreciate it if you also give your job and education level.
I am doing an informal survey. I would appreciate it if you also give your job and education level.
This post was deleted for the following reason: Polls and informal surveys aren't really what AskMe is for. -- cortex
Tort reform tends to be sort of like shaving with an axe. Sure, there are abuses in some instances but most tort reform proposals cut off relief for legitimate victims. It's not a black/white issue, a for or against thing. Which kind of tort reform are we talking about here. It would be better to ask are you for or against certain specific types of tort reform. When you say "tort reform" do you have a specific meaning or do you just mean generally denying relief to victims legitimate or illegitimate?
posted by caddis at 11:37 PM on October 31, 2007
posted by caddis at 11:37 PM on October 31, 2007
Yes, I do. I believe we should have both "loser pays" reform to discourage frivolous lawsuits, and I believe we should also have health care courts, so that malpractice cases could be decided truly on practice guidelines and true malpractice and not bad outcomes.
I'm a medical student / doctor in July!
posted by gramcracker at 11:38 PM on October 31, 2007
I'm a medical student / doctor in July!
posted by gramcracker at 11:38 PM on October 31, 2007
Hell no. There is literally no crisis of doctor's insurance. The stats are way overblown. The courts are the last refuge of the individual in this country. Of course those who are for tort reform don't think they should have their right to sue limited. Take the case of Judge Bork of the U.S. Court of Appeals for the District of Columbia Circuit, a prominent fighter for tort reform who is suing the Yale club for injuries sustained when he fell at a speaking engagement.
The 80-year-old Bork suffered a large hematoma, or swelling of blood, in his lower left leg as a result of the fall and the hematoma eventually burst, according to the lawsuit. The injury required surgery and months of physical therapy, according to the complaint. He claims to have suffered “excruciating pain” as a result of the injury and continues to walk with a limp, according to the complaint.
Doctors are in a high-paying, high risk profession. They are better paid in this country than any other on Earth. The economics are such that they are getting paid more than anyone else for manual tasks because of the risks required.
Big pharmaceutical firms and hospital companies are making enormous profits. They can deploy phalanxes of lawyers at the drop of a hat. The lawyers afforded by those whose lives are destroyed (that's right, death is sometimes the result of medical malpractice!) are of lesser quality.
Finally, there should be no "health care" courts. Why should one profession get a break on liability, especially the highest paid one? There are no "accounting courts."
posted by Ironmouth at 11:55 PM on October 31, 2007 [1 favorite]
The 80-year-old Bork suffered a large hematoma, or swelling of blood, in his lower left leg as a result of the fall and the hematoma eventually burst, according to the lawsuit. The injury required surgery and months of physical therapy, according to the complaint. He claims to have suffered “excruciating pain” as a result of the injury and continues to walk with a limp, according to the complaint.
Doctors are in a high-paying, high risk profession. They are better paid in this country than any other on Earth. The economics are such that they are getting paid more than anyone else for manual tasks because of the risks required.
Big pharmaceutical firms and hospital companies are making enormous profits. They can deploy phalanxes of lawyers at the drop of a hat. The lawyers afforded by those whose lives are destroyed (that's right, death is sometimes the result of medical malpractice!) are of lesser quality.
Finally, there should be no "health care" courts. Why should one profession get a break on liability, especially the highest paid one? There are no "accounting courts."
posted by Ironmouth at 11:55 PM on October 31, 2007 [1 favorite]
No, I do not, unless it gets reformed all around. Let me explain.
Insurance companies have been screaming for years about the current tort system. They've been cranking up insurance rates which has, of course, agitated the physicians who are paying sky-high premiums. Thing is, insurance companies are part of the system. They want a fix that benefits them, and them only. It should not work like that. If there are any changes to the current medical tort system, it should involve a complete reform of the malpractice insurance system as well, including intense regulation.
"Loser pays" is an idiotic idea. It seems like a no-brainer - hey, bring your case to court only if you know you will win, otherwise you're wasting everyone's time and money. In reality, though, it benefits only those wealthy enough to employ the better lawyers. Joe Public is not going to fare well against a corporation with an army of lawyers, with far more experience than an attorney he's going to be able to get. If they get the case thrown out on a technicality, then not only is he S.O.L., but the other side can bill him for lawyers that they had on their payroll anyway.
posted by azpenguin at 12:53 AM on November 1, 2007
Insurance companies have been screaming for years about the current tort system. They've been cranking up insurance rates which has, of course, agitated the physicians who are paying sky-high premiums. Thing is, insurance companies are part of the system. They want a fix that benefits them, and them only. It should not work like that. If there are any changes to the current medical tort system, it should involve a complete reform of the malpractice insurance system as well, including intense regulation.
"Loser pays" is an idiotic idea. It seems like a no-brainer - hey, bring your case to court only if you know you will win, otherwise you're wasting everyone's time and money. In reality, though, it benefits only those wealthy enough to employ the better lawyers. Joe Public is not going to fare well against a corporation with an army of lawyers, with far more experience than an attorney he's going to be able to get. If they get the case thrown out on a technicality, then not only is he S.O.L., but the other side can bill him for lawyers that they had on their payroll anyway.
posted by azpenguin at 12:53 AM on November 1, 2007
Absolutely not. It's a complete scam. I think that medical malpractice insurance is setup incorrectly, but limiting people to $250k settlements is awful. Just to give you an example, Rick Santorum's wife sued her chiropractor for $500k, even while her husband was pushing the $250k cap.
People often say our courts are out of control, but tort reform does nothing but make it more difficult for the weak to sue the strong, for individuals to sue corporations. Why do you think republicans are the ones pushing it?
What we really need is Universal Healthcare. That may seem like a roundabout solution, but think about it, no one would need to sue to pay for future medical care because their future medical care would already be covered. I think New Zealand's Accident Compensation Company is a brilliant idea. You very rarely see people launch these kinds of lawsuits in countries with Universal Healthcare, because it's unnecessary.
Rather then making it more difficult for people who are injured to get benefits from the people that caused their injury, we should be focusing on ways to make sure ever.
Loser pays laws are, as azpenguin, says idiotic. IF a person files a frivolous lawsuit, it will be dismissed without much cost, and people may actually have to pay the other person's legal costs, even today. On the other hand, if a person files a legitimate suit, but ultimately loses on some technical grounds, it would be absolutely insane to make them pay. Especially due to the fact that a lot of the time this would prevent legitimately injured people from suing corporations, to avoid being bankrupted if they lose.
posted by delmoi at 1:58 AM on November 1, 2007
People often say our courts are out of control, but tort reform does nothing but make it more difficult for the weak to sue the strong, for individuals to sue corporations. Why do you think republicans are the ones pushing it?
What we really need is Universal Healthcare. That may seem like a roundabout solution, but think about it, no one would need to sue to pay for future medical care because their future medical care would already be covered. I think New Zealand's Accident Compensation Company is a brilliant idea. You very rarely see people launch these kinds of lawsuits in countries with Universal Healthcare, because it's unnecessary.
Rather then making it more difficult for people who are injured to get benefits from the people that caused their injury, we should be focusing on ways to make sure ever.
Loser pays laws are, as azpenguin, says idiotic. IF a person files a frivolous lawsuit, it will be dismissed without much cost, and people may actually have to pay the other person's legal costs, even today. On the other hand, if a person files a legitimate suit, but ultimately loses on some technical grounds, it would be absolutely insane to make them pay. Especially due to the fact that a lot of the time this would prevent legitimately injured people from suing corporations, to avoid being bankrupted if they lose.
posted by delmoi at 1:58 AM on November 1, 2007
The US legal system is so borked. It's hard to say if Tort Reform is the place to start.
Under the English system lawyers are more disinterested. Contingent fees are a real problem and what they have done to the US system, i.e. sky high settlements, is certainly a problem.
Against this, corporate power in the US is stronger than in other developed countries so huge settlements against companies are check against this.
posted by sien at 3:28 AM on November 1, 2007
Under the English system lawyers are more disinterested. Contingent fees are a real problem and what they have done to the US system, i.e. sky high settlements, is certainly a problem.
Against this, corporate power in the US is stronger than in other developed countries so huge settlements against companies are check against this.
posted by sien at 3:28 AM on November 1, 2007
"Loser pays" is an idiotic idea. To English eyes this is very peculiar. The idea that I can frivilously sue you, you are forced to retain counsel to defend yourself, and even if I lose, you could still be bankrupted by the cost of your own lawyers, is bizarre. It means that big corporations can sue with impunity and normal people have no choice but to settle.
The other idea which is totally bizarre from an English perspective is lawyers reciveing a percentage share of damages - which is utterly bizarre, and an absolute invitation for ambulance chasing...
FWIW I'm an English Law Graduate, although I've never practiced.
posted by prentiz at 3:36 AM on November 1, 2007
The other idea which is totally bizarre from an English perspective is lawyers reciveing a percentage share of damages - which is utterly bizarre, and an absolute invitation for ambulance chasing...
FWIW I'm an English Law Graduate, although I've never practiced.
posted by prentiz at 3:36 AM on November 1, 2007
Loser pays is far from idiotic, in fact it works very well in England, Australia, and the many other jurisdictions where it is practiced. Here's why.
But then, we tend to prefer to resolve lawsuits on the merits of cases, rather than on how much money can be spent by either side. Maybe that's the problem.
posted by aeschenkarnos at 4:35 AM on November 1, 2007
But then, we tend to prefer to resolve lawsuits on the merits of cases, rather than on how much money can be spent by either side. Maybe that's the problem.
posted by aeschenkarnos at 4:35 AM on November 1, 2007
I'm against. It's largely political. If you look at the stats, the average recovery in a tort case is I believe under 10k. These massive jury awards you hear about went out of style a long time ago and were largely a myth to begin with. Remember the McDonald's coffee in the lap case? Well she had third degree burns on her labia and McDonald's had known and been told for years and years their coffee was way way too hot (it was something like 400 degrees way above the industry standard) and the jury awarded exactly what McDonald's makes in one day on coffee worldwide, which is a lot of money, but when you think of it in those terms it was really just a punitive measure against McDonald's, which in my opinion was warranted.
Also, the cost of caring for someone with a disability for the rest of their life costs an ungodly amount of money and a lot of people just don't realize how much a part time nurse, physical therapy, medical care, etc costs when you extrapolate it over the next 20 years. When you start doing that sort of math you realize a lot of these "crazy" jury verdicts are really quite reasonable.
Tort reform is pushed by big corporations. If you limit liability you limit responsibility. These companies do these thing by the math, if putting your health and safety in jeopardy is cost effective they will do it and tort reform does exactly that. At least IMHO.
posted by whoaali at 5:10 AM on November 1, 2007
Also, the cost of caring for someone with a disability for the rest of their life costs an ungodly amount of money and a lot of people just don't realize how much a part time nurse, physical therapy, medical care, etc costs when you extrapolate it over the next 20 years. When you start doing that sort of math you realize a lot of these "crazy" jury verdicts are really quite reasonable.
Tort reform is pushed by big corporations. If you limit liability you limit responsibility. These companies do these thing by the math, if putting your health and safety in jeopardy is cost effective they will do it and tort reform does exactly that. At least IMHO.
posted by whoaali at 5:10 AM on November 1, 2007
It depends on what you mean by tort reform; if you mean tightening restrictions on who can be considered an expert witness and limiting the admissibility of "junk science", then I am in favor of it. But if you define tort reform as arbitrarily capping damages, then I am totally against it. In addition to agreeing with many of the arguments against it already stated, I want to point out that in the US if there are ongoing significant medical expenses due to an injury (whether there was malpractice/negligence involved or not) there is currently no way to cover them short of a successful lawsuit. People with ongoing medical problems due to an injury will likely have a hard time getting insurance; if we had national health care it would go a long way toward removing the motivation for many lawsuits. Another problem I have with tort reform is that politically, it encourages physicians to take the side of insurance companies rather than patients, which I find extremely distasteful. I am a physician who has been out of residency for 14 years and practice in a fairly high-risk subspecialty.
posted by TedW at 5:22 AM on November 1, 2007
posted by TedW at 5:22 AM on November 1, 2007
My background: software consultant, some grad school, both parents work in the legal industry.
My opinion: we need reform, but not the reform that is promoted by the insurance industry. It's a symptom of how messed-up the entire system is that market contingency fees run 25-40%; 10% seems like a more reasonable number. You can't blame the trial lawyers for high fees, though, since they are responding to the market; instead, the focus should be on changing the court system to greatly reduce the cost of winning a legitimate claim. Such changes would likely reduce the accuracy of the system -- some claims that would have produced no award under the current system would be paid out, and vice versa -- but the aggregate benefit would be worth it.
The AMA supports "loser pays," so I am sure its membership would also support "loser pays" health insurance where, if a patient receives a diagnosis that later proves incorrect, the patient will be responsible for all medical costs stemming from that diagnosis. This model would probably force doctors to start taking patients on contingency, since patients would demand clear incentives for correct diagnoses and would not tolerate risking high costs. But, hey, if it cuts down on frivolous medical care, wouldn't it be worth it?
posted by backupjesus at 5:56 AM on November 1, 2007
My opinion: we need reform, but not the reform that is promoted by the insurance industry. It's a symptom of how messed-up the entire system is that market contingency fees run 25-40%; 10% seems like a more reasonable number. You can't blame the trial lawyers for high fees, though, since they are responding to the market; instead, the focus should be on changing the court system to greatly reduce the cost of winning a legitimate claim. Such changes would likely reduce the accuracy of the system -- some claims that would have produced no award under the current system would be paid out, and vice versa -- but the aggregate benefit would be worth it.
The AMA supports "loser pays," so I am sure its membership would also support "loser pays" health insurance where, if a patient receives a diagnosis that later proves incorrect, the patient will be responsible for all medical costs stemming from that diagnosis. This model would probably force doctors to start taking patients on contingency, since patients would demand clear incentives for correct diagnoses and would not tolerate risking high costs. But, hey, if it cuts down on frivolous medical care, wouldn't it be worth it?
posted by backupjesus at 5:56 AM on November 1, 2007
Opposed to tort reform. Recent law grad in the US.
I don't really have much to add (although, I applaud those who see that universal healthcare would largely moot the issue!), but I will say that we currently have the equivalent of a "loser pays" system to discourage frivolous lawsuits. In fact, we need the exact opposite of that, because many meretorious claims are never brought because they are not economically viable. Attorneys will already refuse to take cases that will not result in decent enough damages - independent of the merit of the claim. This leaves a lot of injured people without any options. The last thing we need is to prevent more people from making their claims.
It should also be noted that a lot of this talk is about medical malpractice, but there are a lot of other kinds of tort claims out there that are subject to the same rules. I took a products liability course in law school, and we studied the case of Stella Liebeck and the infamous McDonald's coffee case. The phrase used, medically, to describe her injury was "instantaneous destruction of human flesh." Pain and suffering damages are by their very nature partly punitive. They are meant to punish. And unfortunately, if we cap the amount of punishment that we can assign to offenders, we will find them calculating that into their economic models. "Well, it is only going to cost us $250,000 + medical every time someone gets destroyed by their morning coffee, but we're going to make $1m every day selling coffee, so that's a reasonable investment." That's just wrong, but tragically common.
posted by greekphilosophy at 6:13 AM on November 1, 2007
I don't really have much to add (although, I applaud those who see that universal healthcare would largely moot the issue!), but I will say that we currently have the equivalent of a "loser pays" system to discourage frivolous lawsuits. In fact, we need the exact opposite of that, because many meretorious claims are never brought because they are not economically viable. Attorneys will already refuse to take cases that will not result in decent enough damages - independent of the merit of the claim. This leaves a lot of injured people without any options. The last thing we need is to prevent more people from making their claims.
It should also be noted that a lot of this talk is about medical malpractice, but there are a lot of other kinds of tort claims out there that are subject to the same rules. I took a products liability course in law school, and we studied the case of Stella Liebeck and the infamous McDonald's coffee case. The phrase used, medically, to describe her injury was "instantaneous destruction of human flesh." Pain and suffering damages are by their very nature partly punitive. They are meant to punish. And unfortunately, if we cap the amount of punishment that we can assign to offenders, we will find them calculating that into their economic models. "Well, it is only going to cost us $250,000 + medical every time someone gets destroyed by their morning coffee, but we're going to make $1m every day selling coffee, so that's a reasonable investment." That's just wrong, but tragically common.
posted by greekphilosophy at 6:13 AM on November 1, 2007
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It is nearly impossible to get an injured client money in CA unless they have a catostrophic injury.
I had a client who was brutalized by a police department, but since she recovered her damages were less that what it would have cost to put the case on.
I have an infant client who was nearly killed due to criminally negligent medical care. MICRA limits her to $250,000 total for her pain and suffering... even though she is now a vegetable. Sure we're getting her some money for future medical care... but unfortunately every dollar is going to be used for... future medical care.
Juries simply aren't giving out huge awards except in the most unusual of cases in Los Angeles, and I know most of the attorneys who have gotten the big verdicts... and most of them get knocked down 70% due to perodicization of future benefits down to a present cash value.
posted by Mr_Crazyhorse at 11:01 PM on October 31, 2007