Wonder why TORT reform is an issue?

[gallantwarrior]

What would you say to a LEGITIMATE claimant who has sustained LEGITIMATE damages in an amount of five million dollars, for medical malpractice, in a jurisdiction that caps settlements/awards for such damages at $250K?

What would you say to that person?

What kind of damages would justify an award of five million dollars?

You would be surprised! Mostly though, in products liability. The problem that plaintiffs (and their attorneys face) is that eveyone pretty much feels that their case is the case of the year. Pain is priceless. Loss of ability to do what you normally do is priceless. The limits of the sky is not enough. I remember one woman who was in an accident and could no longer do her Buns of Steel excercises every morning to the video she bought. She wanted ten million dollars for her loss. That wasn't enough but it might come close.

I sat on a jury once that deliberated medical coverage, loss of "enjoyment of life", and punitive damages. The plaintiff was awarded medical coverage up to the point where she was discharged from treatment for injuries suffered in the accident. She was in court suing the defendent for further treatment, specifically carpal tunnel surgery, which was medically determined to be non-related to the accident. During testimony, it was revealed that she had a history of filing for damages from slip-and-fall accidents, work-related "injuries", and other trifling things. She already had a 20% physical disability awarded from a slip-and-fall in front of a grocery store the previous year. Her "loss-of-enjoyment-of-life" award was $8000. Some of the jurers figured she should get something, but most of us figured she had already gotten plenty.
When her lawyer asked for damages, I guess they were restrained from requesting a certain amount. She went through the "How much would XXX be worth?" thing.
Bottom line, this woman (and her husband) were doing their best to make a living off of lawsuits. Tort reform is needed. Limiting the amount that lawyers can take might help. Making the loser pay would go a long way towards stopping the bullshit.

 

[Katzndogz]

Loser pays only makes sense if the losing attorneys are included. For one thing, if they lost a case that has a legitimate claim, it's a way to punish lawyers who do a bad job. I could not support a loser pays system where the attorney can screw up, lose the case and leave the client holding the bag.

 

[gallantwarrior]

Loser pays only makes sense if the losing attorneys are included. For one thing, if they lost a case that has a legitimate claim, it's a way to punish lawyers who do a bad job. I could not support a loser pays system where the attorney can screw up, lose the case and leave the client holding the bag.

I'd go for that. As a matter of fact, it the attorneys can take 40% out of any award their client gets, why not let them cough up 40% of the cost of filing a lawsuit if they lose?

 

[Katzndogz]

One of the tactics that lawyers use is known as "Papering the opposition". They file endless motions, depositions, discovery documents. It's really an attack to cause the lawsuit to become so expensive that further prosecution or defense is not financially feasible. It's a legal beatdown. If attorneys knew that if the tactic failed and they lost, the cost of papering is coming out of their pockets they might not use it so liberally.

It is not uncommon to find 100 or more defendants listed in a medical malpractice suit with another 1000 or so Doe defendants. The plaintiff's attorney names everyone, then engages in a little shakedown to get a few hundred bucks from each one to nudge up to that cap. I am really happy to see medical personnel refusing to pay off the $500.00 or so and fight back by filing their own lawsuits against the attorneys engaging in this shameful practice. Some doctors and nurses that are sued never even saw the patient, they were just seeing their own patients on the same floor. Shameful, really shameful.

 

[George Costanza]

One of the tactics that lawyers use is known as "Papering the opposition". They file endless motions, depositions, discovery documents. It's really an attack to cause the lawsuit to become so expensive that further prosecution or defense is not financially feasible. It's a legal beatdown. If attorneys knew that if the tactic failed and they lost, the cost of papering is coming out of their pockets they might not use it so liberally.

What you are leaving out is that it is generally the DEFENSE that employs this type of tactic on the plaintiff's attorney. Liability defense is almost universally handled by very large firms employed by the insurance company involved. They know full well that the way to discourage lawsuits by individual lawyers is to paper them out of existence. So when you say that papering is "one of the tactics lawyers use," when it is in the context to tort ligitgation, make sure you have that sentence reading, "one of the tactics defense lawyers use . . . ."

It is not uncommon to find 100 or more defendants listed in a medical malpractice suit with another 1000 or so Doe defendants. The plaintiff's attorney names everyone, then engages in a little shakedown to get a few hundred bucks from each one to nudge up to that cap. I am really happy to see medical personnel refusing to pay off the $500.00 or so and fight back by filing their own lawsuits against the attorneys engaging in this shameful practice. Some doctors and nurses that are sued never even saw the patient, they were just seeing their own patients on the same floor. Shameful, really shameful.

The "shameful practice" you refer to here of naming numerous defendants, has more to do with proper representation of plaintiffs than it does with "shaking defendants down." Consider this: if plaintiff's counsel fails to include appropriate defendants, he or she will be liable to their own client for malpractice. Intentionally making settlement demands on named defendants known to have no liablity can result in state bar reprimands and/or loss of license to practice law.

 

[George Costanza]

Tort reform is needed. Limiting the amount that lawyers can take might help. Making the loser pay would go a long way towards stopping the bullshit.

Abuses occur. They get touted as being the norm, rather than the exception. As usual, the truth lies somewhere between. I will give you that what you describe here does happen, and I hate it as much as you - perhaps more, since it reflects on my profession.

There is macinery in place to handle the type of abuse you are talking about. Sometimes, bad cases slip through and wind up in front of a jury, which is, by the way, the last line of defense against friviolous lawsuits. Well, actually the appellate court is the ultimate last line of defense because it has the ability to reduce unreasonable jury awards.

But you mention "tort reform," and say that, in your opinion, it is needed. "Tort reform," as it is presently being implemented, has little to do with friviolous lawsuits. "Tort reform" manifests itself by way of liability caps, which do nothing except increase the wealth of the medical complex at the expense of legitimately injured plaintiffs.

 

[The Gadfly]

Anyone else notice the irony of the ads that are at the top of this page, at least as I am writing this post?

"Medical malpractice? Pain and suffering? Need to talk to an attorney?"
"Medical negligence lawyer. Free case evaluation."

I'm not saying there aren't frivolous lawsuits. Of course there are. And I'm not saying there aren't scumbag attorneys out there who chase ambulances and prey on the injured. Of course there are. I recognize that. But there are also legitimate attorneys who handle legitimate cases for legitimate plaintiffs with legitimate claims and legitimate damages. I'm wondering if people like Katzndogz recognize THAT. So far, I haven't seen it.

The problem, George, is that there are more scumbag attorneys and scumbag plaintiffs, than legitimate ones. I've had some lawyers tell me (off the record, naturally) that the ratio is ten to one or more, in favor of the scumbags. Those civil tort cases I've heard in several stints of jury duty tend to bear that out. You know, it's just a thought, but if we didn't keep our law schools busy churning out far more attorneys than any rational society needs, maybe there wouldn't be such a problem; as it is, the sharks have to eat, even the bottom-feeding majority of them. This, by the way, is why you hear jokes like this:

"What's the difference between a dead lawyer in the road, and a dead snake in the road? The skid marks in front of the dead snake!"

 

[The Gadfly]

Tort reform is needed. Limiting the amount that lawyers can take might help. Making the loser pay would go a long way towards stopping the bullshit.

Abuses occur. They get touted as being the norm, rather than the exception. As usual, the truth lies somewhere between. I will give you that what you describe here does happen, and I hate it as much as you - perhaps more, since it reflects on my profession.

There is macinery in place to handle the type of abuse you are talking about. Sometimes, bad cases slip through and wind up in front of a jury, which is, by the way, the last line of defense against friviolous lawsuits. Well, actually the appellate court is the ultimate last line of defense because it has the ability to reduce unreasonable jury awards.

But you mention "tort reform," and say that, in your opinion, it is needed. "Tort reform," as it is presently being implemented, has little to do with friviolous lawsuits. "Tort reform" manifests itself by way of liability caps, which do nothing except increase the wealth of the medical complex at the expense of legitimately injured plaintiffs.

I assume from that you are an attorney, if not a member of the plaintiff's bar. If you don't like the public perception of your profession (I'll spare you the comments on its relationship to an older one), I offer you and the rest of your profession the following advice-clean up your own house, before we, the American people, have to do it for you! You know who the unethical scumbags in your midst are, so deal with them. Don't tell me you can't do that: if you were ALL facing serious consequences for their irresponsible behavior, the rest of you would FIND a way, and you know it!

 

[The Gadfly]

One of the tactics that lawyers use is known as "Papering the opposition". They file endless motions, depositions, discovery documents. It's really an attack to cause the lawsuit to become so expensive that further prosecution or defense is not financially feasible. It's a legal beatdown. If attorneys knew that if the tactic failed and they lost, the cost of papering is coming out of their pockets they might not use it so liberally.

What you are leaving out is that it is generally the DEFENSE that employs this type of tactic on the plaintiff's attorney. Liability defense is almost universally handled by very large firms employed by the insurance company involved. They know full well that the way to discourage lawsuits by individual lawyers is to paper them out of existence. So when you say that papering is "one of the tactics lawyers use," when it is in the context to tort ligitgation, make sure you have that sentence reading, "one of the tactics defense lawyers use . . . ."

It is not uncommon to find 100 or more defendants listed in a medical malpractice suit with another 1000 or so Doe defendants. The plaintiff's attorney names everyone, then engages in a little shakedown to get a few hundred bucks from each one to nudge up to that cap. I am really happy to see medical personnel refusing to pay off the $500.00 or so and fight back by filing their own lawsuits against the attorneys engaging in this shameful practice. Some doctors and nurses that are sued never even saw the patient, they were just seeing their own patients on the same floor. Shameful, really shameful.

The "shameful practice" you refer to here of naming numerous defendants, has more to do with proper representation of plaintiffs than it does with "shaking defendants down." Consider this: if plaintiff's counsel fails to include appropriate defendants, he or she will be liable to their own client for malpractice. Intentionally making settlement demands on named defendants known to have no liablity can result in state bar reprimands and/or loss of license to practice law.

The operative word of that last sentence is "known", which can be (and is) twisted to reflect the "possibility" (however nearly non-existent) that a named defendant MIGHT have SOME liability (however tenuous) until absolutely proven otherwise. Please don't be disingenuous. There's the common-sense definition of every word in the English language, and then, there's the "LEGAL" definition, such as "well, that depends on what the meaning of the word "is" is". The legal profession has elevated THAT to an art form, albeit an especially ugly and thoroughly pernicious one! Do excuse me if I fail to admire the mangling of our mother tongue, for the sole purpose of securing the desired result!

 

[C_Clayton_Jones]

Wonder why TORT reform is an issue?

No idea, it’s not an issue at all:

Lawyers and lawsuits have been attacked politically for years, but in reality, civil lawsuits shine a spotlight on wrongdoing, call the offenders to account, deter future misbehavior and provide justice for people who have been hurt.

The "lawsuit explosion" is a myth. In fact, the opposite is true. The number of tort filings in New York State actually decreased by 30% from 1998 to 2008. The total number of tort cases filed was down from 81,952 to 57,023.

These cases often take years to come to a conclusion. Lawyers working for contingency fees don't get paid unless they win. It would be ludicrous for someone in that position to file a frivolous lawsuit.

There are checks and balances in the system. If someone files a frivolous lawsuit, a judge can sanction the lawyer for doing so and dismiss the case. If a jury awards too large an amount, a judge can reduce it. If the losing side disagrees with the result, they can appeal.

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.

Enough with the tort reform myths - NY Daily News

 

[Katzndogz]

Tort reform is needed. Limiting the amount that lawyers can take might help. Making the loser pay would go a long way towards stopping the bullshit.

Abuses occur. They get touted as being the norm, rather than the exception. As usual, the truth lies somewhere between. I will give you that what you describe here does happen, and I hate it as much as you - perhaps more, since it reflects on my profession.

There is macinery in place to handle the type of abuse you are talking about. Sometimes, bad cases slip through and wind up in front of a jury, which is, by the way, the last line of defense against friviolous lawsuits. Well, actually the appellate court is the ultimate last line of defense because it has the ability to reduce unreasonable jury awards.

But you mention "tort reform," and say that, in your opinion, it is needed. "Tort reform," as it is presently being implemented, has little to do with friviolous lawsuits. "Tort reform" manifests itself by way of liability caps, which do nothing except increase the wealth of the medical complex at the expense of legitimately injured plaintiffs.

I assume from that you are an attorney, if not a member of the plaintiff's bar. If you don't like the public perception of your profession (I'll spare you the comments on its relationship to an older one), I offer you and the rest of your profession the following advice-clean up your own house, before we, the American people, have to do it for you! You know who the unethical scumbags in your midst are, so deal with them. Don't tell me you can't do that: if you were ALL facing serious consequences for their irresponsible behavior, the rest of you would FIND a way, and you know it!

It is OBVIOUS he's not a lawyer. He has no concept of what damages are. It's all "feelings".

 

[JoeB131]

there are already meachanisms in place for abuse of the system. cases that are meritless can be dismissed and the parties brining them sanctioned.

how would you suggest you weed out frivolous cases in ADVANCE of their filing? you know, BEFORE a judge hears it?

but the problem is, by the time it's dismissed, you've already paid hundreds or thousands in legal fees at $400.00 an hour.

There's a very simple mechanism. It's called "Loser Pays". If you bring a frivilous lawsuit and it's thrown out, you have to pay the other guy's legal fees for wasting everyone's time.

 

[George Costanza]

Anyone else notice the irony of the ads that are at the top of this page, at least as I am writing this post?

"Medical malpractice? Pain and suffering? Need to talk to an attorney?"
"Medical negligence lawyer. Free case evaluation."

I'm not saying there aren't frivolous lawsuits. Of course there are. And I'm not saying there aren't scumbag attorneys out there who chase ambulances and prey on the injured. Of course there are. I recognize that. But there are also legitimate attorneys who handle legitimate cases for legitimate plaintiffs with legitimate claims and legitimate damages. I'm wondering if people like Katzndogz recognize THAT. So far, I haven't seen it.

The problem, George, is that there are more scumbag attorneys and scumbag plaintiffs, than legitimate ones. I've had some lawyers tell me (off the record, naturally) that the ratio is ten to one or more, in favor of the scumbags. Those civil tort cases I've heard in several stints of jury duty tend to bear that out. You know, it's just a thought, but if we didn't keep our law schools busy churning out far more attorneys than any rational society needs, maybe there wouldn't be such a problem; as it is, the sharks have to eat, even the bottom-feeding majority of them. This, by the way, is why you hear jokes like this:

"What's the difference between a dead lawyer in the road, and a dead snake in the road? The skid marks in front of the dead snake!"

Much of what you say in this and your other posts on this thread, has merit. I'm not sure there are more scumbag attortneys than ethical ones - my experience has not been that.

In any event, amidst all of this hoopla and furor over "scumbag attorneys," the real issue raised by this thread is somehow being shoved to the rear. Liability caps all too often penalize plaintiffs with legitimate claims. That is the point I want to make.

What's your thinking on that?