Tort reform questions

[southernleftylady]

1.OK why doesn't bush want to limit how much % that a lawyer can make on a lawsuit

2. so they want to make lawsuits a federal issue rather than a state issue.. because the states are for the people.. but gay marriage (and I'm hearing abortion) they want the state to decide because the federal system is for the little people...
anyone find the hypocrisy of this just alittle too much
and 3. is there any evidence that capping awards will bring down health care cost? and what % of cost that will go down?

thanks everyone!

[tiddly]

1. It is not so much what attorneys make, it is the cost of defense

against them.

About 80% of lawsuits are either settled out of court for $5,000 to $100,000 or dismissed, BUT it cost on average about $75,000 to defend against each of these numerous lawsuits.

BUT if Doctors & Hospitals did not spend the money to defend themselves, lawsuits against them would multiply like bees to honey.

The objections to limiting the percentage would come from the attorneys: they would state that people will no longer get competent attorneys for "only" 20% of a million dollar award and that as a result Doctors and Hospitals are going "unpunished" for their mistakes.

As far as reducing the costs: by eliminating half of the frivulous lawsuits that cost on average $75,000 to defend we save a lot. BUT the real savings are in Doctors & Hospitals not having to practice "defensive" medicine anymore.

As an example; almost every time I see a specialist, there is a nurse in the Doctor's office with him now. Why? To support his treatment of me in the event of a lawsuit. When I had sinus surgery, they sent me to a dozen other mickey mouse tests first to make sure they were covered in the event of a lawsuit.

[TahitiNut]

3. In response to yet another fact-free post ...

FACT: Insurers themselves admit that they don't settle frivolous claims.

• "In interviews with liability insurers that I undertook, the most consistent theme from them was: 'We do not settle frivolous cases!' . . . policy on frivolous cases is based on the belief that if they ever begin to settle cases just to make them go away, their credibility will be destroyed and this will encourage more litigation." Medical Negligence, the Litigation Process and Jury Verdicts in Medical Malpractice Cases: Implications for Indiana, Neil Vidmar, Ph.D., Russell M. Robinson II Professor of law at Duke Law School, December 2, 2002.

FACT: Most people with legitimate medical malpractice claims never go to court.

• A study done by the Harvard Medical Practice Study Group determined that for every 8 potential medical malpractice claims, only 1 claim was actually filed. Patients, Doctors, and Lawyers: Medical Injury, Malpractice Litigation, and Patient Compensation in New York, Harvard Medical Practice Study Group (Cambridge, Mass.: Harvard University, 1990).
• "Legal professionals, legislators, and the public in general often receive a distorted picture of medical negligence litigation based on selective reporting of cases by the mass media and by propaganda efforts of groups advocating changes to American tort laws." Medical Negligence, the Litigation Process and Jury Verdicts in Medical Malpractice Cases: Implications for Indiana, Neil Vidmar, Ph.D., Russell M. Robinson II Professor of law at Duke Law School, December 2, 2002. See also Java Jive: Genealogy of a Juridical Icon, Michael McCann, William Haltom, and Anne Bloom, 56 University of Miami Law Review 114 (2001).

... and rarely have I heard someone complain about diligent medical care in a nation where over 45 million people receive no health care coverage. It must be "hard work." :eyes:

[Bridget Burke]

4. So, if you hadn't had a "mickey mouse" test before surgery,

And had an undetected low platelet count--you could have bled to death. And your survivors might have filed a "frivulous" lawsuit.

[tiddly]

5. It is called medical history.

Yes, or I could have stepped off the curb leaving the hospital and a taxi could have hit me.

[Bridget Burke]

6. Sorry, your platelet counts are not "medical history"

They can change quite quickly.

[tiddly]

8. LIfe is a risk

Its a bitch, isn't it?

[TahitiNut]

13. No, a 'bitch' is a female canine.

Life is a gift ... an opportunity to learn and grow. One cannot lose what one has not possessed and no lamentation of loss can validly or morally exceed the gratitude for having possessed it in the first place. Life is also suffering ... and it's a blessing indeed that we're each equipped to overcome that suffering and benefit from it.

[TahitiNut]

9. Well, rather than engage in wishful thinking

... let's deal with facts. The risk of death from an automotive accident (on the order of 50,000/year) is almost trivial compared to deaths due to hospital errors (on the order of 200,000/year) unrelated to the illness or injury causing hospitalization.

http://www.msnbc.msn.com/id/5536730/

[MadHound]

15. I think that you need to do some further research friend,

You're missing the big picture completely.

The reason that malpractice insurance rates(and other insurance rates for that matter) are going up is because insurance companies lost their collective ass in the markets the past few years. Insurance companies make the vast majority of their money from investments. They take those premiums that are paid in and invest them. When the market tanked in '00(and which really hasn't recovered), insurance companies were left scrambling for funds. Thus they boosted the rates they charged in order to make up for the shortfall. However, it is convient to blame trial lawyers, after all, how many people truly are fond of lawyers. Thus, they become a convient scapegoat, diverting attention away from the real culprits, the insurance companies, which are virtually unregulated. This also has the added bonus of cutting back on lawyers discretionary funds, thus meaning that trial lawyers, as a whole, have less money to donate to political campaigns. Another bonus, since trial lawyers are the number one contributor to Democratic political campaigns.

Fact for you friend, the number of malpractice lawsuits has been steadily declining for the past ten years. Another fact for you, the average amount awarded in a malpractice lawsuit has also been steadily declining for the same time period.

Another factor that goes into the insurance companies decision to jack up rates is that they have been hit hard in the past decade+ with some large large claims. Natural disasters have become larger and more frequent, hurricanes, tornadoes, earthquakes, fires, etc. all effect the rates we have to pay, including doctors. Since insurance companies have had to pay such large outlays on a increasingly frequent basis, they're making up their shortfall by jacking up rates across the board, including malpractice insurance rates. There have even been times in the past ten years that they have refused to take in new policies because if they did, they would be overextended. I ran into that problem last year when I was looking for homeowner's insurance for my new house. It nearly cost me the house, though I was lucky enough to find an insurance agent who would issue a policy, on the day I closed.

Another fact for you, the AMA and the insurance lobby are two of the top five contributors to Republican political campaigns, and we all know how politicians love to serve their corporate masters.

Rather than looking at the bogus issue of tort reform to bring down insurance rates, we should take a more aggressive stand with the insurance companies charging these outrageous rates. More regualtion of the insurance industry has been needed for decades now, and it is time that we addressed that problem, rather than going after the smokescreen of tort reform. If you fall for the tort reform message, all you're doing is throwing out one the last checks that we as medical consumers have that keeps doctors practicing good medicine.

[DebinTx]

2. We have caps in Texas

thanks to Bush and it hasn't reduced malpractice insurance costs nor has it reduced health care costs. When dems eventually regain control in Texas, this is one reform that should be undone.

Corporations (including insurance companies) file 4 times the number of suits as individuals. Seems Bush is targeting the wrong group again, the individual.

[tiddly]

7. Corporations filing lawsuits

But what you are missing is that most of these lawsuits are for specific performance for a contract they have with a party.

Filing a lawsuit for specific performance on a contract is a tactical measure used by Corporations to enforce contracts with other parties.

[PA Democrat]

11. Care to provide any FACTS to back up that claim?

Here are some FACTS that completely refute your claim:

WASHINGTON, D.C. – American businesses file four times as many lawsuits as do individuals represented by trial attorneys, and they are penalized by judges much more often for pursuing frivolous litigation, according to a report issued today by Public Citizen.

The survey of case filings in two states (Arkansas and Mississippi) and two local jurisdictions (Cook County, Ill., and Philadelphia, Pa.) in 2001 found that businesses were 3.3 to 5.8 times more likely to file lawsuits than were individuals. This comes as businesses and politicians are campaigning to limit citizens’ rights to sue over everything from medical malpractice damages to defective products. By way of comparison, the number of American consumers (281 million) outnumbers the number of businesses in America (7 million) by 40 times.

The report also found that businesses and their attorneys were 69 percent more likely than individual tort plaintiffs and their attorneys to be sanctioned by federal judges for filing frivolous claims or defenses.

http://www.citizen.org/pressroom/release.cfm?ID=1799

[PA Democrat]

12. Oh yes lawsuits filed by corporations are NEVER about pure unethical GREED

And while Cheney blamed frivolous lawsuits for their "devastating impact" on health-care costs during the VP debate, perhaps he should focus on suits filed by pharmaceutical corporations, rather than injured citizens. In 2001, a federal court ruled that Bristol-Myers Squibb (BMS) filed frivolous patent-infringement lawsuits to block the introduction of generic competition for its lucrative anti-anxiety drug, BuSpar. Despite "losing" the claim, BMS delayed competition for four months, during which it gouged Americans for about four times the price it could charge in a competitive market. BMS's actions were so egregious that the Federal Trade Commission ordered the company to halt "any fraudulent or objectively baseless claim or otherwise engage in sham litigation."

Again, this is an example of systemic abuse. As Merrill Goozner documents in his exhaustively-researched book, "The $800 Million Pill," baseless claims to extend patent monopolies are routine practice for BMS and other drug manufacturers.

Of course, the corporate lobbyists behind calls for "tort reform" aren't so concerned by these cases. Class-action lawsuits -- which help average citizens harmed by corporate negligence or malevolence to gain compensation and punish the offender -- are their target. So while Congress considers capping class-action punitive damages (awards in such cases have not increased over the past decade) at $250,000, the bill wouldn't touch frivolous suits like those filed by BMS.

http://www.reclaimdemocracy.org/corporate_accountability/corporate_junk_lawsuits.html

[Liberal In Texas]

10. Tort "reform"

Caps on lawsuits prevent a level playing field.

Large corporations, insurance companies, etc. have a powerful legal arsenals built into their systems.

Most individuals that need to take on these Goliaths have to mount their own arsenal of legal expertise, and that can be very expensive.

If attorneys can’t make enough money bringing these suits forward, the small guy is going to get screwed and will rarely get justice.

And it’s not that all lawyers are "greedy". It costs a lot of money for a case like this to go foreword; to do court room presentations (graphics, video etc.), take depositions from expert witnesses, keep up with the blizzard of paper work that will be thrown at the court and the plaintiff, do proper research, and maintain an office and staff that may spend hundreds of hours on one case.

If these Goliaths know they can out-spend the little guy, future abuses will continue. In the case of doctors, the bad ones will keep practicing and more people will die or be permanently injured.

[TreasonousBastard]

14. Well, Shrub does want to cap attorney fees...

but much of the fee money goes to expenses, so the plan is for personal injury lawyers to go broke if they take the hard cases.

I spent over 20 years as an insurance underwriter and broker, and I can say with authority and tcertainty that everything Shrub is saying about the malpractice insurance problems is pure bullshit.

Insurance company claims data is considered proprietary, so we have no breakdown on how claims are paid. We don't know how many checks for over $250,000 are actually cut after appeals, and we don't know the reinsurance arrangements for large claims. All we know are the original judgments and what the companies are required to file under their state regulatory systems.

In my personal experience, which is not in medical malpractice, well over 50% of claims were small and took very little time to settle. Of the rest, very few were large enough to worry us, and hardly any went to litigation. I am aware that malpractice claims are more complicated and expensive to adjust, but I see no reason why St. Paul and the mutual pools should have any significantly different experience in malpractice. So, I can't imagine why putting a cap on claims would reduce premiums. The bulk of the money paid out is in smaller claims and in defense costs on potentially larger ones. A cap won't touch this at all.

Most of the problems with malpractice insurance can be laid to the rating procecesses of the companies, but there are real problems that are never addressed. One big one is the long "tail" in obstetrics claims. Claims for problems during birth have been filed when the kid was in his 20's, although I don't know if that's common any more. At any rate, underwriters can't properly come up with a rate for an exposure they might not see until 10 or 20 years later.

Another problem is the realignment of reinsurance after 9/11. Most of it is historically placed through British companies who work on a three year accounting cycle and were happy to lose a little underwriting profit to get dollars into their offshore coffers. Not any more-- they were losing their shirts before 9/11, and have been losing their shorts after that. The $250,000 cap is supiciously close to a typical excess of loss reinsurance limit.

As a side note, I doubt there is enough money in medical malpractice to worry about investment income as a source of income. One company I worked for didn't credit my department for investment income on our 35 million a year of premium income-- it was too small in 3 billion of total company revenues. We made more money on the 7% "overriding commission" for ceding reinsurance than we did from investments. A lot more.

[txaslftist]

16. So a guy goes to a doctor...

To get an abscess removed from his foot. It's invasive surgery, so they sedate him. He wakes up missing his front two teeth.

I talked to the man some time later, he was poor, and getting a lunch in a shelter where I worked.
"Why didn't you sue them?"
"I'm sure they didn't mean to knock out my teeth."
"They might have paid for the dentistry."
"Well, when I called them to ask about it, they said they didn't know what happened to my teeth. They apologized."
"Oh... Okay."