Tort Reform Failure

[jillian]

A dearly cherished myth of the anti-health care cult is tort reform. They steadfastly believe it to be the solution to the health care problem.

It isn't.

Well, that's because it's the myth the insurance companies pay to propagate. reality is that there are few frivolous malpractice suits because before such suits can get to a judge, most have to go through merit panels. and, frankly, they're simply too expensive to bring if they aren't worth money.

ultimately, when doctors can cap the damage they can do to someone's body and life, i'll be all for capping damages.

 

[geauxtohell]

Common sense it would seem to me in this matter Samson would be not to limit damages which by the way I am NOT for, but I am for a loser pays system, one which would discourage the number of so called ambulance chasers. If a client had a case that was not on solid ground then they would be discouraged from bringing the case because of the cost associated with it.

I can tell you on one of your questions, I see a LOT more commercials on TV from attorneys looking for clients to bring suit against Doctors than I do Doctors advocating their services.

Some basic stats from '05: of all medical malpractice plaintiffs:

2/3rds never see a dime.
Of the remaining third, 98% settle for an average of $200K.
Of the 2% that go to court, only 1/10 get a favorable verdict for an average of $300K.

The problem is overstated.

Perhaps, but my position is that tort reform when used in conjunction with an overall stradgedy of healthcare reform can be very effective. However used alone as the only solution to lower the costs of healthcare insurance or costs, it has little impact as seen in the CBO analysis.

What you claim are the results of the litigation not the amount of litigation that has an effect on the economy. "Loser Pays" does not deny those seeking a relief from the courts , what it does is set out to discourage those that litigate for for the simple purpose of seeking a favorable outcome regadless if the client is deserving or not.

I am not in favor of caps on litigation but I am for making it clear that if you as a citizen plan to seek redress in the courts then you do so knowning that if you lose you will be responsible for the costs.

"Loser pays" only disenfranchises the poor from recovering damages. Pragmatically, it means that trial lawyers would not take clients who could not cover their back end. Since trial lawyers work on contingency fees anyways, there is already an effective screening process for bad cases. A med mal lawyer is not going to take a case unless they think something is there, because they are going to suck up a huge amount of cost.

That is why 2/3rds of plaintiffs never see a dime.

 

[Navy1960]

Some basic stats from '05: of all medical malpractice plaintiffs:

2/3rds never see a dime.
Of the remaining third, 98% settle for an average of $200K.
Of the 2% that go to court, only 1/10 get a favorable verdict for an average of $300K.

The problem is overstated.

Perhaps, but my position is that tort reform when used in conjunction with an overall stradgedy of healthcare reform can be very effective. However used alone as the only solution to lower the costs of healthcare insurance or costs, it has little impact as seen in the CBO analysis.

What you claim are the results of the litigation not the amount of litigation that has an effect on the economy. "Loser Pays" does not deny those seeking a relief from the courts , what it does is set out to discourage those that litigate for for the simple purpose of seeking a favorable outcome regadless if the client is deserving or not.

I am not in favor of caps on litigation but I am for making it clear that if you as a citizen plan to seek redress in the courts then you do so knowning that if you lose you will be responsible for the costs.

"Loser pays" only disenfranchises the poor from recovering damages. Pragmatically, it means that trial lawyers would not take clients who could not cover their back end. Since trial lawyers work on contingency fees anyways, there is already an effective screening process for bad cases. A med mal lawyer is not going to take a case unless they think something is there, because they are going to suck up a huge amount of cost.

That is why 2/3rds of plaintiffs never see a dime.

I am going to have agree to disagree with you on this one, because it would serve to free up those same trial lawyers to concentrate on only those cases that have merit.

Effects of Loser Pays

This paper infers from its examination of the scholarly literature how loser pays would affect the American legal system:

Almost every economist who has studied loser pays predicts that it would, if adopted, reduce the number of low-merit lawsuits.
A loser-pays rule would encourage business owners and other potential defendants to try harder to comply with the law. Doing so should produce fewer injuries.
Loser pays would deter ordinary low-merit suits, but it would not discourage low-merit class actions to the same extent because the risk of enormous losses, rather than the costs of legal defense, is the primary source of pressure on defendants to settle.

Experiences with Loser Pays

This paper reviews evidence from Alaska and Florida, two states that have had significant practical experience with loser pays:

In Alaska, which has always had a loser-pays rule, tort suits constitute only 5 percent of all civil legal matters—half the national average.

Between 1980 and 1985, Florida adopted a loser-pays rule that applied exclusively to medical-malpractice cases. This experiment was imperfect, drew criticism, and was ultimately dropped; but in significant respects, the Florida loser-pays rule seems to have worked to weed out weaker cases and facilitate case disposition: the rate at which medical-malpractice lawsuits were dropped after initial discovery rose from 44 percent to 54 percent of all such filings, and the percentage that proceeded to trial (instead of being dropped or settled) was half of what it had been under the American rule.
Civil Justice Report 11 | Greater Justice, Lower Cost: How a "Loser Pays" Rule Would Improve the American Legal System

 

[Samson]

The threat of removing the doctors license would have the same result, except lawyers would not receive their portion of huge settlements, and Malpractice Insurers would go out of business.

Doctors do lose their licenses, all the time.

Though, it's usually for ethical or gross incompetence.

If you establish the precedent that every Doctor that screws up is going to have their license reviewed, you are going to create a much bigger problem than we have right now.

Doctors are humans and make mistakes like everyone else. The only difference is, inherent to the profession, mistakes cause morbidity and mortality. That's just the nature of the beast. It's not reasonable to expect them to be automatrons.

That's why it's important to preserve litigation as a means of recourse against malpractice.

So, are you saying that its better that ALL doctors buy Medical Malpractice Insurance rather than SOME physicians losing their license?

How does this create a "Bigger Problem?"

 

[geauxtohell]

I am going to have agree to disagree with you on this one, because it would serve to free up those same trial lawyers to concentrate on only those cases that have merit.

Effects of Loser Pays

This paper infers from its examination of the scholarly literature how loser pays would affect the American legal system:

Almost every economist who has studied loser pays predicts that it would, if adopted, reduce the number of low-merit lawsuits.
A loser-pays rule would encourage business owners and other potential defendants to try harder to comply with the law. Doing so should produce fewer injuries.
Loser pays would deter ordinary low-merit suits, but it would not discourage low-merit class actions to the same extent because the risk of enormous losses, rather than the costs of legal defense, is the primary source of pressure on defendants to settle.

Experiences with Loser Pays

This paper reviews evidence from Alaska and Florida, two states that have had significant practical experience with loser pays:

In Alaska, which has always had a loser-pays rule, tort suits constitute only 5 percent of all civil legal matters—half the national average.

Between 1980 and 1985, Florida adopted a loser-pays rule that applied exclusively to medical-malpractice cases. This experiment was imperfect, drew criticism, and was ultimately dropped; but in significant respects, the Florida loser-pays rule seems to have worked to weed out weaker cases and facilitate case disposition: the rate at which medical-malpractice lawsuits were dropped after initial discovery rose from 44 percent to 54 percent of all such filings, and the percentage that proceeded to trial (instead of being dropped or settled) was half of what it had been under the American rule.
Civil Justice Report 11 | Greater Justice, Lower Cost: How a "Loser Pays" Rule Would Improve the American Legal System

But you are missing the point that med mal lawyers almost exclusively work on contingency fees. That means they already pay if they lose. They pay all the lost billable hours and consultant fees without any recovery from a settlement or verdict.

They already screen their cases, because they can't afford to lose many.

If "loser pays" was so wonderful in Florida, why was it repelled. Furthermore, a drop in tort cases doesn't mean the situation has been remedied. It just means that only the "slam dunk" cases were taken by lawyers.

 

[geauxtohell]

So, are you saying that its better that ALL doctors buy Medical Malpractice Insurance rather than SOME physicians losing their license?

How does this create a "Bigger Problem?"

Yes. That is what I am saying. Insurance is a cost of doing business for any enterprise. Medicine is no different.

You can't even operate a car in this country without insurance.

If you get sued, you might take a hit, and it sucks, but you still have an entire career in front of you.

Who in their right mind would go $250K in the whole and suffer through four years of medical school and 3+ years of residency if they could lose their license and entire lively hood for making a simple mistake.

Aside from the fact that few people would be willing to take that chance, it would drastically cut the number of practicing physicians, and we already have a shortage of primary care Doctors.

Gross malpractice will cause a Dr. to lose their license. If you start yanking licenses at the slightest mistakes, you've just compounded the problem.

 

[Samson]

So, are you saying that its better that ALL doctors buy Medical Malpractice Insurance rather than SOME physicians losing their license?

How does this create a "Bigger Problem?"

Yes. That is what I am saying. Insurance is a cost of doing business for any enterprise. Medicine is no different.

You can't even operate a car in this country without insurance.

If you get sued, you might take a hit, and it sucks, but you still have an entire career in front of you.

Who in their right mind would go $250K in the whole and suffer through four years of medical school and 3+ years of residency if they could lose their license and entire lively hood for making a simple mistake.

Aside from the fact that few people would be willing to take that chance, it would drastically cut the number of practicing physicians, and we already have a shortage of primary care Doctors.

Gross malpractice will cause a Dr. to lose their license. If you start yanking licenses at the slightest mistakes, you've just compounded the problem.

So, what if we just suspended licenses for slight mistakes?

 

[Navy1960]

I am going to have agree to disagree with you on this one, because it would serve to free up those same trial lawyers to concentrate on only those cases that have merit.

Effects of Loser Pays

This paper infers from its examination of the scholarly literature how loser pays would affect the American legal system:

Almost every economist who has studied loser pays predicts that it would, if adopted, reduce the number of low-merit lawsuits.
A loser-pays rule would encourage business owners and other potential defendants to try harder to comply with the law. Doing so should produce fewer injuries.
Loser pays would deter ordinary low-merit suits, but it would not discourage low-merit class actions to the same extent because the risk of enormous losses, rather than the costs of legal defense, is the primary source of pressure on defendants to settle.

Experiences with Loser Pays

This paper reviews evidence from Alaska and Florida, two states that have had significant practical experience with loser pays:

In Alaska, which has always had a loser-pays rule, tort suits constitute only 5 percent of all civil legal matters—half the national average.

Between 1980 and 1985, Florida adopted a loser-pays rule that applied exclusively to medical-malpractice cases. This experiment was imperfect, drew criticism, and was ultimately dropped; but in significant respects, the Florida loser-pays rule seems to have worked to weed out weaker cases and facilitate case disposition: the rate at which medical-malpractice lawsuits were dropped after initial discovery rose from 44 percent to 54 percent of all such filings, and the percentage that proceeded to trial (instead of being dropped or settled) was half of what it had been under the American rule.
Civil Justice Report 11 | Greater Justice, Lower Cost: How a "Loser Pays" Rule Would Improve the American Legal System

But you are missing the point that med mal lawyers almost exclusively work on contingency fees. That means they already pay if they lose. They pay all the lost billable hours and consultant fees without any recovery from a settlement or verdict.

They already screen their cases, because they can't afford to lose many.

If "loser pays" was so wonderful in Florida, why was it repelled. Furthermore, a drop in tort cases doesn't mean the situation has been remedied. It just means that only the "slam dunk" cases were taken by lawyers.

I submit that all that does is add incentive for those that wish to file suit for frivilous reasons, because they have no penalty that they themselves have to pay if they should lose. Further what this does it adds incentive for trial attorneys to work on the pretext of getting as many clients as possbile to file these suits in order to offset loses should they lose.

When Florida experimented with a Loser Pays system for medical malpractice suits from 1980-1985, for instance, “the average trial award came close to tripling, from $25,190 to $69,390…. [Researchers concluded that] the higher average was the direct result of the loser-pays rule’s elimination of many weak cases.”

But defendants in Florida benefited as well: The percentage of plaintiffs who voluntarily dropped their (presumably meritless) suits rose significantly, while the share of such lawsuits that actually went to trial dropped from 11 percent to 6 percent.
http://www.washingtonexaminer.com/o...ers_should_learn_from_sports_bars_120308.html

While there is some merit to the point that low income and poor are left out in such a system because they are then held responsible for those fee's. There is nothing to preclude an attorney from accepting a client in that atmosphere on a payment basis, or any number of methods by which the attorney can be made whole.

 

[jillian]

But you are missing the point that med mal lawyers almost exclusively work on contingency fees. That means they already pay if they lose. They pay all the lost billable hours and consultant fees without any recovery from a settlement or verdict.

They already screen their cases, because they can't afford to lose many.

If "loser pays" was so wonderful in Florida, why was it repelled. Furthermore, a drop in tort cases doesn't mean the situation has been remedied. It just means that only the "slam dunk" cases were taken by lawyers.

"loser pays" is designed to make it so only rich corporations can risk a law suit. It doesn't level the playing field, it shuts it down.

the average malpractice case costs $50,000 to pursue. That doesn't include hourly attorneys fees because it's just the expenses of court filings, depositions, medical reports, witness fees, etc. Getting a doctor to come in for one day of court can cost $1500 to $3,000 dollars... and a malpractice case can require multiple doctors' testimony.

Additionally, while you might think otherwise, doctors DO NOT testify against other doctors if they don't think there was malpractice... and even if there was malpractice, the injuries have to be such that they couldn't, under any circumstances, be an anticipated risk of whatever procedure is the subject of the suit.

the cost of these cases and the difficulty makes it such that attorneys don't generally take them if they aren't really good at both the liability AND damages phases.

and sometimes people lose cases for reasons that have nothing to do with the merits of their claim.

in this country loser pays only if there is a statutory obligation or a contractual obligation between the parties.

 

[The Rabbi]

The usual crap arguments from the usual crap arguors.
In fact other countries use loser pays and I don't see corporations running over their rights. How much money is lost in junk lawsuits? How much in products that aren't produced because "we might get sued" no matter how great the product? We have a runaway tort system that desperately needs reform before it breaks our economy. Making filing a lawsuit a win-break even situation only encourages "jackpot justice."
At the very least post a bond based on the size of the damages requested that gets forfeited if the party loses.

 

[jillian]

The usual crap arguments from the usual crap arguors.
In fact other countries use loser pays and I don't see corporations running over their rights. How much money is lost in junk lawsuits? How much in products that aren't produced because "we might get sued" no matter how great the product? We have a runaway tort system that desperately needs reform before it breaks our economy. Making filing a lawsuit a win-break even situation only encourages "jackpot justice."
At the very least post a bond based on the size of the damages requested that gets forfeited if the party loses.

imbecile.

but feel free to keep posting about things you know nothing about.



and the point, in case you can't follow, is that there's no point in trying to solve a "problem" that's fully and completely fabricated

 

[geauxtohell]

But you are missing the point that med mal lawyers almost exclusively work on contingency fees. That means they already pay if they lose. They pay all the lost billable hours and consultant fees without any recovery from a settlement or verdict.

They already screen their cases, because they can't afford to lose many.

If "loser pays" was so wonderful in Florida, why was it repelled. Furthermore, a drop in tort cases doesn't mean the situation has been remedied. It just means that only the "slam dunk" cases were taken by lawyers.

"loser pays" is designed to make it so only rich corporations can risk a law suit. It doesn't level the playing field, it shuts it down.

the average malpractice case costs $50,000 to pursue. That doesn't include hourly attorneys fees because it's just the expenses of court filings, depositions, medical reports, witness fees, etc. Getting a doctor to come in for one day of court can cost $1500 to $3,000 dollars... and a malpractice case can require multiple doctors' testimony.

Additionally, while you might think otherwise, doctors DO NOT testify against other doctors if they don't think there was malpractice... and even if there was malpractice, the injuries have to be such that they couldn't, under any circumstances, be an anticipated risk of whatever procedure is the subject of the suit.

the cost of these cases and the difficulty makes it such that attorneys don't generally take them if they aren't really good at both the liability AND damages phases.

and sometimes people lose cases for reasons that have nothing to do with the merits of their claim.

in this country loser pays only if there is a statutory obligation or a contractual obligation between the parties.

I couldn't agree more. I've stated as much on here. I accept that other people just disagree. That's fine. I suspect I am correct.

Furthermore, there seems to be this notion that trial lawyers are the ones rolling in the dough here.

Trial lawyers typically consist of small firms with a couple of partners and a few associates. When you drive by the skyscrapers with names on the top, those are defense firms.

Where is the real money in this game?

 

[geauxtohell]

The usual crap arguments from the usual crap arguors.
In fact other countries use loser pays and I don't see corporations running over their rights. How much money is lost in junk lawsuits? How much in products that aren't produced because "we might get sued" no matter how great the product? We have a runaway tort system that desperately needs reform before it breaks our economy. Making filing a lawsuit a win-break even situation only encourages "jackpot justice."
At the very least post a bond based on the size of the damages requested that gets forfeited if the party loses.

Actually, it was a pretty interesting and engaging conversation until you made this "crap" post that added nothing to the conversation.

BTW, we already have "loser pays" for plaintiffs in this country. It just hasn't been expanded to cover the other guy's cost.

Nor should it. Talk about really crooking the system for the insurance companies.

 

[geauxtohell]

So, what if we just suspended licenses for slight mistakes?

Given the option between paying for insurance premiums to cover mistakes versus a system where licenses are suspended for mistakes, I'd doubt you find many Drs. that would favor your position.

Your system is completely draconian. If a physician makes a mistake he/she loses their livelihood for a certain period of time and maybe forever?

Who in the hell would want to go into a profession like that?

 

[jillian]

I couldn't agree more. I've stated as much on here. I accept that other people just disagree. That's fine. I suspect I am correct.

Furthermore, there seems to be this notion that trial lawyers are the ones rolling in the dough here.

Trial lawyers typically consist of small firms with a couple of partners and a few associates. When you drive by the skyscrapers with names on the top, those are defense firms.

Where is the real money in this game?

Obviously, I think you're correct. And this idea that lawyers shouldn't make money but insurance companies should is very much behind it... irrationally, but that's what it is. No question that when a case hits, there can be a nice fee.. but that fee can be up to 10 years after the lawyer was retained and worked on the case, without payment, for all that time.

for some reason, some people only think rich people's lawyers should be paid.

and yes, the insurance defense firms are the ones with the bottomless pocket.

 

[geauxtohell]

I am going to have agree to disagree with you on this one, because it would serve to free up those same trial lawyers to concentrate on only those cases that have merit.

Effects of Loser Pays

This paper infers from its examination of the scholarly literature how loser pays would affect the American legal system:

Almost every economist who has studied loser pays predicts that it would, if adopted, reduce the number of low-merit lawsuits.
A loser-pays rule would encourage business owners and other potential defendants to try harder to comply with the law. Doing so should produce fewer injuries.
Loser pays would deter ordinary low-merit suits, but it would not discourage low-merit class actions to the same extent because the risk of enormous losses, rather than the costs of legal defense, is the primary source of pressure on defendants to settle.

Experiences with Loser Pays

This paper reviews evidence from Alaska and Florida, two states that have had significant practical experience with loser pays:

In Alaska, which has always had a loser-pays rule, tort suits constitute only 5 percent of all civil legal matters—half the national average.

Between 1980 and 1985, Florida adopted a loser-pays rule that applied exclusively to medical-malpractice cases. This experiment was imperfect, drew criticism, and was ultimately dropped; but in significant respects, the Florida loser-pays rule seems to have worked to weed out weaker cases and facilitate case disposition: the rate at which medical-malpractice lawsuits were dropped after initial discovery rose from 44 percent to 54 percent of all such filings, and the percentage that proceeded to trial (instead of being dropped or settled) was half of what it had been under the American rule.
Civil Justice Report 11 | Greater Justice, Lower Cost: How a "Loser Pays" Rule Would Improve the American Legal System

But you are missing the point that med mal lawyers almost exclusively work on contingency fees. That means they already pay if they lose. They pay all the lost billable hours and consultant fees without any recovery from a settlement or verdict.

They already screen their cases, because they can't afford to lose many.

If "loser pays" was so wonderful in Florida, why was it repelled. Furthermore, a drop in tort cases doesn't mean the situation has been remedied. It just means that only the "slam dunk" cases were taken by lawyers.

I submit that all that does is add incentive for those that wish to file suit for frivilous reasons, because they have no penalty that they themselves have to pay if they should lose. Further what this does it adds incentive for trial attorneys to work on the pretext of getting as many clients as possbile to file these suits in order to offset loses should they lose.

When Florida experimented with a Loser Pays system for medical malpractice suits from 1980-1985, for instance, “the average trial award came close to tripling, from $25,190 to $69,390…. [Researchers concluded that] the higher average was the direct result of the loser-pays rule’s elimination of many weak cases.”

But defendants in Florida benefited as well: The percentage of plaintiffs who voluntarily dropped their (presumably meritless) suits rose significantly, while the share of such lawsuits that actually went to trial dropped from 11 percent to 6 percent.
Quin-essential Cases: Predatory lawyers should learn from sports bars | Washington Examiner

While there is some merit to the point that low income and poor are left out in such a system because they are then held responsible for those fee's. There is nothing to preclude an attorney from accepting a client in that atmosphere on a payment basis, or any number of methods by which the attorney can be made whole.

You've made some really good posts and points. Ironically, I need to go study pathology. I'll try to get around to an decent response to this a little later.

 

[The Rabbi]

The usual crap arguments from the usual crap arguors.
In fact other countries use loser pays and I don't see corporations running over their rights. How much money is lost in junk lawsuits? How much in products that aren't produced because "we might get sued" no matter how great the product? We have a runaway tort system that desperately needs reform before it breaks our economy. Making filing a lawsuit a win-break even situation only encourages "jackpot justice."
At the very least post a bond based on the size of the damages requested that gets forfeited if the party loses.

imbecile.

but feel free to keep posting about things you know nothing about.



and the point, in case you can't follow, is that there's no point in trying to solve a "problem" that's fully and completely fabricated

I think you're the dumbshit here. But feel free to continue, as if you needed my permission.
There is a serious problem. I don't recall what lawsuits cost the economy every year but it amounts to an enormous tax. And it falls on thsoe least able to afford it. Additionally it deprives those least able to afford it of vital services. In MS before tort reform there were I think 2 practicing OB-GYNs in the state.
But hey, you don't give a shit about women. You support a serial rapist.

 

[geauxtohell]

In MS before tort reform there were I think 2 practicing OB-GYNs in the state.

I am just going to go ahead and call bull-fucking-shit on that one.

You realize Mississippi has a medical school and that OB/GYN rotations are required for all medical students and that to have OB/GYN rotations you need OB/GYNs and residents, right?

You are right, we should totally defer to your expertise on this matter.

 

[jillian]

The usual crap arguments from the usual crap arguors.
In fact other countries use loser pays and I don't see corporations running over their rights. How much money is lost in junk lawsuits? How much in products that aren't produced because "we might get sued" no matter how great the product? We have a runaway tort system that desperately needs reform before it breaks our economy. Making filing a lawsuit a win-break even situation only encourages "jackpot justice."
At the very least post a bond based on the size of the damages requested that gets forfeited if the party loses.

imbecile.

but feel free to keep posting about things you know nothing about.



and the point, in case you can't follow, is that there's no point in trying to solve a "problem" that's fully and completely fabricated

I think you're the dumbshit here. But feel free to continue, as if you needed my permission.
There is a serious problem. I don't recall what lawsuits cost the economy every year but it amounts to an enormous tax. And it falls on thsoe least able to afford it. Additionally it deprives those least able to afford it of vital services. In MS before tort reform there were I think 2 practicing OB-GYNs in the state.
But hey, you don't give a shit about women. You support a serial rapist.

honestly? i don't much care what you think because your uninformed, uneducated, unsubstantiated rants aren't worth the bandwidth they take up.

medical malpractice cases cost insurance companies 0.3% of health care costs.

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now, i know educating yourself isn't your style, but try reading the link and actually learning something so you stop embarrassing yourself.

And try posting without the lies and drama. it's seriously pathetic, mendacious and kind of pathological.

 

[jillian]

In MS before tort reform there were I think 2 practicing OB-GYNs in the state.

I am just going to go ahead and call bull-fucking-shit on that one.

You realize Mississippi has a medical school and that OB/GYN rotations are required for all medical students and that to have OB/GYN rotations you need OB/GYNs and residents, right?

You are right, we should totally defer to your expertise on this matter.

Thanks for that. I'm kind of betting he's referring to the number of abortion clinics. But that's a whole different subject.