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Post by Swimmy on Dec 12, 2009 14:05:17 GMT -5
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Post by dgriffin on Dec 12, 2009 14:29:05 GMT -5
From the article ..."Anyone who wants to reduce the number of lawsuits should focus on reducing the type of negligent behavior that harms people and causes them to sue. Ignoring the underlying causes and simply blaming the victims and their lawyers for suing undermines an important safeguard that our civil justice system provides to all our citizens." Good point. And I'm reminded of when no-fault medical/auto was being discussed in the early 1970's. You couldn't find a seat in an attorney's office, because of the boxes of Anti No Fault pamphlets. 
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Post by Swimmy on Dec 12, 2009 16:34:52 GMT -5
I often hear the concept of creating a no-fault benefits akin to no-fault auto or workers' compensation. The problem is that those systems do not assist the injured party enough. The concept of the judicial system on the civil side is to attempt to make the injured party whole again by compensating them with money. It may not be the same as being able to turn back the clock and undo the wrong that was done, but until such technology exists, it's the best there is. I have a case right now where my client was a passenger in an automobile accident. The client is disabled as a result and the no-fault has not covered all the medical expenses or the client's lost wages. Of course there is a system for going beyond it and suing where there is a serious injury. Perhaps if there is something like that in the medical malpractice field it might be beneficial. But the tradeoff involved in workers' compensation law is too great and it would be wholly unfair to isolate the medical profession from liability in the same manner as employers are isolated from liability to their injured employees absent an egregious act from the employer. And the standard is so high that R&D companies that intentionally sent employees into a hot zone after detonating a nuclear devices were found to have not acted so egregiously and the injured employees' families were restricted to workers' compensation.
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Post by dgriffin on Dec 12, 2009 20:13:10 GMT -5
Noted. Doesn't seem to be any perfect solution. I think I remember my attorney arguing there were no silver bullets, and therefore each SHOULD case should be decided in a court of law.
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Post by Swimmy on Dec 15, 2009 11:01:48 GMT -5
Back in 2002, I read an article in U.S. News that analyzed California's "tort reform" and noticed that insurance premiums kept going up, despite the damages caps. Doctors still quit the profession because it was "too expensive." It then looked at a three-year period of medical malpractice cases. The reporter found that most cases that went to trial never approached $250,000 (which was the proposed cap at the time). In the few cases where the jury verdict was above $250,000, it was in cases where the victim's damages really were worth that amount, or close to it. The article then noted that the remaining cases (the majority) settled out of court for much more than the majority of jury verdicts.
What many "tort reformers" ignore is that even when capping damage amounts, it has zero effect on the insurance premiums. They also ignore the other numbers mentioned in this article and often have no response to questions about that, just more lawyer bashing.
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Post by stoney on Dec 15, 2009 11:14:09 GMT -5
Personally, I do not believe there should be caps on medical malpractice. There should be few frivolous lawsuits when you have lawyers taking cases on contingency basis, or else they wouldn't bother taking them. Not only won't they be profitable, they end up looking bad for bringing it to court (or trying to).
Maybe doctors should just try not to make mistakes. There's a novel idea.
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Post by Swimmy on Dec 15, 2009 12:42:36 GMT -5
Maybe doctors should just try not to make mistakes. There's a novel idea. A very novel idea that unfortunately has failed to stick for over 20 years. |
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Post by stoney on Dec 15, 2009 12:46:45 GMT -5
Exactly. Hence, there should be no cap.
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Post by clarencebunsen on Dec 15, 2009 13:12:19 GMT -5
Swimmy, I sort of vaugely remember a report on the same or similar study which came to the conclusion that California's premiums had gone up but not by as much as states which had not limited certain types of damages. My memory is fallible of course, but that is not the same as zero effect.
I would also question the idea that there are no frivolous law suits or that one has to make a mistake or be sued. My wife (along with many others) was named as a defendant in a lawsuit against the hospital. Her total involvement in the incident in question was to prepare a report on what had been charted.
For the first time she made use of the premiums she has been paying for malpractice insurance since 1973. (Nurses can get malpractice insurance too. The premiums have increase by a factor of about 100 since 1973.) She felt that it was prudent to have her own counsel in addition to the hospital's lawyers.
The trial was short. In his decision, Bob Julian castigated the plaintiff & his lawyers for wasting everyone's time & money. I was pleased with the result but not so impressed with the process.
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Post by Swimmy on Dec 15, 2009 15:01:46 GMT -5
cb, I apologize if I lead you to believe that I don't think there is a single frivolous case in the legal system. I will be the first to admit that our legal system is not perfect and there are many frivolous actions. In fact, I just got a case dismissed 20 minutes ago because of a frivolous criminal complaint against my client. Even the DA said, "Screw this. The guy should have at least accepted the amount your client tendered for restitution and sought the rest in small claims. We're so dismissing this."
The checks in the system weed out many frivolous actions from chewing up court time. But that does not mean some slip through.
I understand your point about the premiums not going up as much as in states with zero caps. But my point remains valid, i.e. capping malpractice awards won't reduce frivolous lawsuits, nor will it make practicing medicine any cheaper. The focus needs to be on reducing medical malpractice from being committed in the first instance, not the subsequent lawsuit.
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Post by clarencebunsen on Dec 15, 2009 17:08:43 GMT -5
Swimmy, I know we see this from different perspectives, my decades in manufacturing & my wife's in healthcare obviously color my view.
I see huge strides having been made in health care quality, product defect reduction & manufacturing safety but no reductions in claims, awards or preemiums.
The system seems rigged to reward liability lawyers & insurance companies and bankrupt manufacturers & health care providers. Pre-mature babies that had no chance or survival 30 years ago often thrive now, but someone who specializes in delivering high-risk babies is garanteed a lawsuit unless he delivers a perfect baby 100% of the time no matter what the circumstances.
My own experience on jury duty left me convinced that it was a terrible way to decide technical issues. Most of my fellow jurors seemed lost at trying to decipher how a breathalyzer worked much less how or why a radar gun should be calibrated. They did notice that Frank Policelli looked a lot like Phil Jackson.
If we settle those issues, hopefully over a beer consumed before 4am, we can get into how much money is wasted on unnecessary tests in the US because physicians practice defensive medicine. But that's my wife's rant.
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Post by stoney on Dec 16, 2009 10:03:22 GMT -5
"The focus needs to be on reducing medical malpractice from being committed in the first instance, not the subsequent lawsuit. "
That's what I was trying to say, Swimmy. But you did it better.
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