Wonder why TORT reform is an issue?

[George Costanza]

The number of frivolous claims is about 80%.

Source for this ridiculous claim, please.

 

[George Costanza]

Liberals believe in tort lotto!

The cap in California is for $250,000 and limited to pain and suffering in medical malpractice cases. The sky is still very much the limit everywhere else.

The reason why the cap in medical malpractice cases was to stop doctors from leaving the state. As it is, the defensive medicine practiced by doctors to keep down malpractice claims has caused medical care to skyrocket.

You are correct - it is 250K in CA and not 200K. My error. The "sky" SHOULD be the limit in all states. As Jilian so ably pointed out, ample machinery exists for eliminating both frivolous lawsuits as well as excessive liability awards. Legitimate claims should not be limited by arbitrary caps.

Thank you for your opinon as to why caps are imposed on liability damage settlements and/or awards. I can assure you that there are other opinions as to why liability caps come into existence.

I know there are other opinions, they are BS! Tort lotto is still alive and very well. Multi million dollar settlements are still the norm. Lawyers are just more creative on how they puff up those frivolous claims.

A loser pays system, to be effective, needs to extend beyond the claimant into the plaintiff's attorney. That way, when the attorney KNOWS the case is crap, and an investigator is filming his crippled client on a ski trip, they'll drop the case.

The trend of doctors filing immediate suit themselves against plaintiffs and their attorneys has had a beneficial effect in limiting SOME frivolous claims, but not nearly enough.

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?

 

[jillian]

You are correct - it is 250K in CA and not 200K. My error. The "sky" SHOULD be the limit in all states. As Jilian so ably pointed out, ample machinery exists for eliminating both frivolous lawsuits as well as excessive liability awards. Legitimate claims should not be limited by arbitrary caps.

Thank you for your opinon as to why caps are imposed on liability damage settlements and/or awards. I can assure you that there are other opinions as to why liability caps come into existence.

I know there are other opinions, they are BS! Tort lotto is still alive and very well. Multi million dollar settlements are still the norm. Lawyers are just more creative on how they puff up those frivolous claims.

A loser pays system, to be effective, needs to extend beyond the claimant into the plaintiff's attorney. That way, when the attorney KNOWS the case is crap, and an investigator is filming his crippled client on a ski trip, they'll drop the case.

The trend of doctors filing immediate suit themselves against plaintiffs and their attorneys has had a beneficial effect in limiting SOME frivolous claims, but not nearly enough.

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?

i notice he didn't have anything to say.

but then again, he's also a compulsive liar.

80% of cases frivolous?!?!?!?!?! riiiiiiiiiiiiiiiiiiiiiight.

 

[peterson121]

i notice he didn't have anything to say.

but then again, he's also a compulsive liar.

80% of cases frivolous?!?!?!?!?! riiiiiiiiiiiiiiiiiiiiiight.

Right! Make it 90%

 

[Katzndogz]

You are correct - it is 250K in CA and not 200K. My error. The "sky" SHOULD be the limit in all states. As Jilian so ably pointed out, ample machinery exists for eliminating both frivolous lawsuits as well as excessive liability awards. Legitimate claims should not be limited by arbitrary caps.

Thank you for your opinon as to why caps are imposed on liability damage settlements and/or awards. I can assure you that there are other opinions as to why liability caps come into existence.

I know there are other opinions, they are BS! Tort lotto is still alive and very well. Multi million dollar settlements are still the norm. Lawyers are just more creative on how they puff up those frivolous claims.

A loser pays system, to be effective, needs to extend beyond the claimant into the plaintiff's attorney. That way, when the attorney KNOWS the case is crap, and an investigator is filming his crippled client on a ski trip, they'll drop the case.

The trend of doctors filing immediate suit themselves against plaintiffs and their attorneys has had a beneficial effect in limiting SOME frivolous claims, but not nearly enough.

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?

I had nothing to say because I don't live on this board.

Since you asked. And I will allow that you have no or little knowledge of legal practice.

What I would say is that the legitimate damages have to be proved up. If you require nursing care for the rest of your life, we will have to get an actuary to determine the length such care will be necessary and the cost, including regular inflationary costs. If you have lost a limb or suffered some loss of a functioning vital organ the state provides a schedule of the value of such losses which will be included. If you need to have remodeling of your home to provide for assistance in functioning with a permanent disability we will include that. Are you married? If so we will have to include damages for your spouse's loss of consortium. Loss of earnings? What would you have made in your lifetime, that's included. Do you need child care? How about your dog? Will you have to hire someone to walk your dog or clean the cat box? These are legitimate claims. If the LEGITIMATE claims come to more than five million dollars they come to more than five million dollars. You are limited to $250,000 for pain and suffering.

Your mistake is including LEGITIMATE claims in the cap when the cap itself is limited only to pain and suffering.

Where there is little in the way of legitmate claims, attorneys used to create sympathy for priceless pain. What amount of money could really compensate you for the priceless pain of that sprained ankle. Besides, you are poor, the doctor is rich, soak him for all he's got. Juries love to give away other people's money. You never know when you will be filing your own lawsuit for a doctor diagnosing your bursitis two weeks late.

A competent, if sleazy attorney won't stop with the doctor who may have done something wrong, They sue each and every doctor, nurse, therapist, LVN, medical assistant and staff worker that was on duty at the time the wrong was alleged to have occurred. Without a cap on pain and suffering, the aggregate award can be spread out over maybe 100 innocent people. Something the attorney can wink at the jury and argue at closing. Or, there is the possibility of bumping up the recovery by offering these innocent parties a chance to buy their way out of that lawsuit for $500.00 to $1,000.00 in exchange for a dismissal. By then the innocent medical practioner or insurance company has had to spend thousands of dollars in their own legal fees.

I'm glad that doctors and medical staff have started filing immediate lawsuits of their own against these buckets of scum demanding that they prove up how a doctor who never saw that plaintiff would have liability when all they might have done was walk down the hall past the patient room.

Now you know what I would say to someone with a legitimate claim for 5 million dollars.

 

[uscitizen]

I am sure that the republican candidates will support tort reform as soon as their lawsuit in VA is settled.

 

[Katzndogz]

i notice he didn't have anything to say.

but then again, he's also a compulsive liar.

80% of cases frivolous?!?!?!?!?! riiiiiiiiiiiiiiiiiiiiiight.

Right! Make it 90%

I was being generous.

SERIOUS medical malpractice is probably more realistically like 5%. The rest are standard of care issues. The doctor must have breached the prevalent reasonable standard of care in the community. It thereafter becomes a battle of experts to determine what the standard of care is, or even should be. What's the percentage of breach? A doctor diagnoses that bursitis two weeks later than he should have. The standard is that reasonable delay, allowing a delay, is a week. He administered a test that would have diagnosed that bursitis two weeks later that another doctor would have. The legitimate claim is slight, if there is any. But, using expert testimony as to how much pain would be endured during that two week period a good attorney might be able to pump up those pain and suffering, non compensatory damages to a couple of million dollars. The case is frivolous. That's the majority of cases.

Then there is the mutha of all frivolous medical malpractice lawsuits. The failure to warn. Doctor diagnoses a serious bone loss condition. The patient is under treatment and showing progress. The doctor warns patient not to stress the bones. Don't go skiing, skateboarding, play tennis, or football. The patient files suit because of a serious injury suffered while snowboarding. "Doctor you didn't tell me not to snowboard. You told me not to go skiiing or skateboarding." Frivolous.

Now in cases like this, legitimate damages will be reduced by the comparitive negligence of the plaintiff. That can all be made up by obfuscation of the facts and concentrating on the pain. Maybe millions of dollars in pain. Limited to the cap of $250,000. YAYYY.

 

[uscitizen]

How much is a quality life worth?

 

[Polk]

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?

Looser pays would go a long way.

I favor "loser pays" (with some limits) as a philosophical matter, but it doesn't really do much to solve this problem.

 

[Polk]

i notice he didn't have anything to say.

but then again, he's also a compulsive liar.

80% of cases frivolous?!?!?!?!?! riiiiiiiiiiiiiiiiiiiiiight.

Right! Make it 90%

I was being generous.

SERIOUS medical malpractice is probably more realistically like 5%. The rest are standard of care issues. The doctor must have breached the prevalent reasonable standard of care in the community. It thereafter becomes a battle of experts to determine what the standard of care is, or even should be. What's the percentage of breach? A doctor diagnoses that bursitis two weeks later than he should have. The standard is that reasonable delay, allowing a delay, is a week. He administered a test that would have diagnosed that bursitis two weeks later that another doctor would have. The legitimate claim is slight, if there is any. But, using expert testimony as to how much pain would be endured during that two week period a good attorney might be able to pump up those pain and suffering, non compensatory damages to a couple of million dollars. The case is frivolous. That's the majority of cases.

Then there is the mutha of all frivolous medical malpractice lawsuits. The failure to warn. Doctor diagnoses a serious bone loss condition. The patient is under treatment and showing progress. The doctor warns patient not to stress the bones. Don't go skiing, skateboarding, play tennis, or football. The patient files suit because of a serious injury suffered while snowboarding. "Doctor you didn't tell me not to snowboard. You told me not to go skiiing or skateboarding." Frivolous.

Now in cases like this, legitimate damages will be reduced by the comparitive negligence of the plaintiff. That can all be made up by obfuscation of the facts and concentrating on the pain. Maybe millions of dollars in pain. Limited to the cap of $250,000. YAYYY.

Those are all questions of fact for a jury to determine. Also, your snowboarding example is absurd. You wouldn't be able to find a court anywhere in the country that would take it seriously.

 

[Katzndogz]

What's really funny is that ordinary people have no idea in the world how badly their attorneys are screwing them to take the bulk of that award. They really think they are going to get five million dollars out of a five million dollar award! How stupid are people?

After a lawsuit is filed the attorney is limited to 40% of the recovery off the top. Poor guy, how is he or she gonna make a buck off that kind of pittance. During the course of this FRIVOLOUS lawsuit, that attorney is going to inflate the costs. There will be investigators, expert witnesses to evaluate medical records and different expert witnesses to testify. There will be depositions galore. Paralegals will produce an invoice of billable hours for research. Other attorneys will give consultations mostly over a three martini lunch. There will be doctors to give examinations and write an evaluation. Neurologists, orthopedists, urologists, cardiologists. Any specialty of any kind to see the platiff for ten minutes and concoct a $10,000 bill.

After that 40% is taken off the top, the cost bill might be another two million. Then your wonderful lawyer who got you all that money will contact each and every person who performed a service and cut them back. Reduce the fee and pocket the difference. The client doesn't get a whole hell of a lot. A cap means that the lawyer doesn't get quite as much as he would have gotten without a cap. Without legitimate claims, there's less incentive to manufacture an expensive case based on pain and suffering.

Now that I have your attention. A five million dollar award doesn't mean a five million dollar award. No one is gonna write that check for five million dollars no matter how many times you saw it happen on television.

Financial experts and actuaries will determine how long you are likely to live. What amount of money would you have to invest today to reach the magic number of five million dollars (less fees and costs) on the date of your death? The five million dollars is reduced to its present day value (of course less what's already been paid to the lawyer) and that's what is really paid. The insurance company puts that money in an annuity account. Not five million dollars, less than a million, maybe only a few hundred thousand. The attorney DOES get a check for fees and costs right away. You get a check every month. The rest is TADAAA invested on Wall Steet! Wall Steet has to GO! Ruin those companies! Chase them off. Take that money and redistribute it to people on welfare. Fuck the sick!

The left, you gotta find them funny in a twisted sort of way.

The left complains about a cap on non-compensatory damages. Not because they might get something more but simply for the punishment value it has for doctors and insurance companies.




There could

 

[Katzndogz]

Right! Make it 90%

I was being generous.

SERIOUS medical malpractice is probably more realistically like 5%. The rest are standard of care issues. The doctor must have breached the prevalent reasonable standard of care in the community. It thereafter becomes a battle of experts to determine what the standard of care is, or even should be. What's the percentage of breach? A doctor diagnoses that bursitis two weeks later than he should have. The standard is that reasonable delay, allowing a delay, is a week. He administered a test that would have diagnosed that bursitis two weeks later that another doctor would have. The legitimate claim is slight, if there is any. But, using expert testimony as to how much pain would be endured during that two week period a good attorney might be able to pump up those pain and suffering, non compensatory damages to a couple of million dollars. The case is frivolous. That's the majority of cases.

Then there is the mutha of all frivolous medical malpractice lawsuits. The failure to warn. Doctor diagnoses a serious bone loss condition. The patient is under treatment and showing progress. The doctor warns patient not to stress the bones. Don't go skiing, skateboarding, play tennis, or football. The patient files suit because of a serious injury suffered while snowboarding. "Doctor you didn't tell me not to snowboard. You told me not to go skiiing or skateboarding." Frivolous.

Now in cases like this, legitimate damages will be reduced by the comparitive negligence of the plaintiff. That can all be made up by obfuscation of the facts and concentrating on the pain. Maybe millions of dollars in pain. Limited to the cap of $250,000. YAYYY.

Those are all questions of fact for a jury to determine. Also, your snowboarding example is absurd. You wouldn't be able to find a court anywhere in the country that would take it seriously.

No for that you have to have a really stupid and liberal jury. That's why jury consultants make so much money. Paid for out of the award of course. It's a legitimate court cost.

 

[Katzndogz]

How much is a quality life worth?

Priceless! That's why there's a cap.

 

[Moonglow]

the most frivolous lawsuit was the govt. vs. tobacco companies

 

[George Costanza]

Damage Caps

California places a cap on non-economic damages for medical malpractice cases. Cal. Civ. Code § 3333.2 (West 1997). Non-economic damages, defined as compensation for pain, suffering, inconvenience, physical impairment, disfigurement, and other non-pecuniary injury, are limited to $250,000. Id. The cap applies whether the case is for injury or death, and it allows only one $250,000 recovery in a wrongful death case. Yates v. Pollock, 194 Cal. App. 3d 195, 239 Cal. Rptr. 383 (1987). There is authority, however, for allowing separate caps for the patient and a spouse claiming loss of consortium. Atkins v. Strayhorn, 223 Cal. App. 3d 1380, 273 Cal. Rptr. 231 (1990). The cap on non-economic damages has been held to be constitutional. Fein v. Permanente Medical Group, 38 Cal. 3d 137, 695 P.2d 665, 211 Cal. Rptr. 368 (1985) (also upholding the modification of the collateral source rule).

Statutory Cap on Attorneys' Fees

California limits the amount attorneys in a medical malpractice case can collect pursuant to a contingent fee arrangement to 40 percent of the first $50,000, 33 1/3 percent of the next $50,000, 25 percent of the next $500,000, and 15 percent of any amount that exceeds $600,000. Cal. Bus. & Prof. Code § 6146 (West 1990). This limit applies regardless of whether the recovery is by settlement, arbitration, or judgment. Id. If the contingent fee arrangement is based, in part, on an award of periodic payments, the court is to place a total value on the payments based upon the projected life expectancy of the claimant, and then calculate the contingent fee percentages. Id.

California Medical Malpractice Summary

 

[George Costanza]

Your mistake is including LEGITIMATE claims in the cap when the cap itself is limited only to pain and suffering.

Caps only apply to "non-economic damages," usually defined as damages for pain and suffering. If there are provable economic damages, then there is no limit. If a 29-year-old neurosurgeon loses both of his hands due to negligence of the tortfeasor, and it is proven that he would have earned $100 million dollars during the rest of his life if the accident had not happened, then he would be entitled to an award of at least $100 million to cover loss of anticipated income.

So far so good. Sounds only fair.

But consider this one . . . the face of a very pretty young woman of 16 is horribly disfigured due to medical malpractice during facial surgery. Attempts to undo the damage cost over two million dollars in medical bills. They are largely unsuccessful. In a claim against the original surgeon the girl would be entitled to the two million dollars in medical bills.

But what about the loss of her face? What about the loss of her virtual LIFE, caused by the disfiguring injuries that will make her forever incapable of living anything even approaching the normal type of life that an otherwise pretty young woman might have been able to look forward to?

This is the type of situation I was trying to describe earlier when I asked you what would you say to someone like that. I should have made it a little clearer.

I trust you see the problem. There are LEGITIMATE cases where people with LEGITIMATE claims, such as the young girl who lost her face, get completely wiped out by liability caps.

What would you say to our girl with the horribly disfigured face?

 

[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.

 

[Katzndogz]

Your mistake is including LEGITIMATE claims in the cap when the cap itself is limited only to pain and suffering.

Caps only apply to "non-economic damages," usually defined as damages for pain and suffering. If there are provable economic damages, then there is no limit. If a 29-year-old neurosurgeon loses both of his hands due to negligence of the tortfeasor, and it is proven that he would have earned $100 million dollars during the rest of his life if the accident had not happened, then he would be entitled to an award of at least $100 million to cover loss of anticipated income.

So far so good. Sounds only fair.

But consider this one . . . the face of a very pretty young woman of 16 is horribly disfigured due to medical malpractice during facial surgery. Attempts to undo the damage cost over two million dollars in medical bills. They are largely unsuccessful. In a claim against the original surgeon the girl would be entitled to the two million dollars in medical bills.

But what about the loss of her face? What about the loss of her virtual LIFE, caused by the disfiguring injuries that will make her forever incapable of living anything even approaching the normal type of life that an otherwise pretty young woman might have been able to look forward to?

This is the type of situation I was trying to describe earlier when I asked you what would you say to someone like that. I should have made it a little clearer.

I trust you see the problem. There are LEGITIMATE cases where people with LEGITIMATE claims, such as the young girl who lost her face, get completely wiped out by liability caps.

What would you say to our girl with the horribly disfigured face?

It's future damages! It's an economic loss. It has to be evaluated like any other loss. If she had a modeling career she would get much much more money than if she was a sales clerk the same way a hand model would get a fortune for a broken finger, but you wouldn't. This kind of economic loss and it is an economic loss has a value. If the disfigurement was such that her ability to work was impacted, she would receive future loss of earnings. If she will require future surgeries to correct that disfigurement or minimize that, she will get compensated for that. Ideally her attorney would keep medical care open so that these future damages will be paid as they are necessary. She would be compensated for scars, or loss of use as necessary according to various schedules that are maintained for that purpose. A scar on the face is worth more than a scar on the abdomen (unless you're a porn star). If there is a one inch scar on your chin, you have a loss of use of that one inch patch of skin. The reason why these are econimic damages is because to everyone what happens to them is priceless. The looks of a horribly ugly girl are just as important to her as are the looks of a stunning beauty are to her. The courts are not in the business of evaluating the relative looks and physical attributes of individual plaintiffs. That would make the pretty people more valuable than the not pretty people.

 

[Katzndogz]

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.

Because you simply have no idea what you are talking about. I'm not your tort professor. A legitimate case with a legitimate and nominally competent attorney will be legitimately compensated. Someone who wants a million dollars over and above that for hurt feelings won't be.

 

[gallantwarrior]

You are correct - it is 250K in CA and not 200K. My error. The "sky" SHOULD be the limit in all states. As Jilian so ably pointed out, ample machinery exists for eliminating both frivolous lawsuits as well as excessive liability awards. Legitimate claims should not be limited by arbitrary caps.

Thank you for your opinon as to why caps are imposed on liability damage settlements and/or awards. I can assure you that there are other opinions as to why liability caps come into existence.

I know there are other opinions, they are BS! Tort lotto is still alive and very well. Multi million dollar settlements are still the norm. Lawyers are just more creative on how they puff up those frivolous claims.

A loser pays system, to be effective, needs to extend beyond the claimant into the plaintiff's attorney. That way, when the attorney KNOWS the case is crap, and an investigator is filming his crippled client on a ski trip, they'll drop the case.

The trend of doctors filing immediate suit themselves against plaintiffs and their attorneys has had a beneficial effect in limiting SOME frivolous claims, but not nearly enough.

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?