The Tort Reform Thread In Which We Do Not Mention McDonalds At All

CasedOut

Hot Coffee examines some of the driving forces behind tort reform. The film also briefly touches on forced arbitration clauses. The film also examines how the infamous McDonalds Hot Coffee case has been skewed in the media to the advantage of corporate interests.

Here are a couple of trailers:

http://www.youtube.com/watch?v=q4UpQ8U4gX4&feature=player_embedded

http://www.youtube.com/watch?v=bBKRjxeQnT4&feature=player_embedded

This thread is to discuss tort reform and forced arbitration, as well as anything else mentioned in the film. How is tort reform really affecting america? Who is most benefitting? What are your thoughts on the subject?

ElJeffe

Hello! This is the new tort reform thread! In this thread, we will not bring up the McDonalds coffee case at all. If you want to talk about coffee, or McDonalds, go to the other thread.

If you post about McDonalds or coffee in this thread except as the vaguest of references in the context of general tort reform, you will receive an infraction.

Thank you, and have a nice day!

MentalExercise

I find our tort system works quite well in general, but with one exception. Why is it that we have judges and juries that can award punitive damages above and beyond the actually hurt caused (which is a good thing), yet every class action lawsuit I have ever qualified for has returned mere pennies on the dollar for my losses? It seems absurd that some company can commit high volume, small scale fraud, and when their hand is caught in the proverbial cookie jar, only be required to give back a few of the cookies!! I mean even with lawyer's fees, shouldn't we the plaintiffs get back two thirds? Even half!

mcdermott

MentalExercise wrote: »

I find our tort system works quite well in general, but with one exception. Why is it that we have judges and juries that can award punitive damages above and beyond the actually hurt caused (which is a good thing), yet every class action lawsuit I have ever qualified for has returned mere pennies on the dollar for my losses? It seems absurd that some company can commit high volume, small scale fraud, and when their hand is caught in the proverbial cookie jar, only be required to give back a few of the cookies!! I mean even with lawyer's fees, shouldn't we the plaintiffs get back two thirds? Even half!

Well, I'm pretty sure 99% of those classes get settled, so you aren't necessarily getting a judgment for actual (and definitely not punitive) damages. You're getting whatever amount the lawyers were willing to accept a third of. ;-)

Most of the class action settlements I've received do, for the most part, address the actual damages. But usually without any consideration for other factors. For instance, my PDA may have had defective capacitors that caused it to lose all memory every time I changed the batteries. Well when the suit is settled, they agree to replace the PDA with a same or like model, refurbished, that functions properly.

Which replaces their defective product, but doesn't actually address the year or more than I spent losing data and not getting full use of my device. Particularly if I've actually gone and replaced it by the time they settle. Of course, it's also my choice whether to join the class or attempt to get my own, more favorable settlement....but fat chance of that (which is why I'd like to see punitive damages set aside as legal aid for civil suits, at least giving people some possibility of doing so).

Anyway, that's just one example. Other fun ones are suits where the settlement is dispensed entirely in the offending company's funbucks. "Yeah, we know we fucked you over with defective shit. Here, have a $10 gift certificate for our store so you can buy more of our defective shit. Oh, only good on full-price items. Enjoy!"

MentalExercise

mcdermott wrote: »

MentalExercise wrote: »

I find our tort system works quite well in general, but with one exception. Why is it that we have judges and juries that can award punitive damages above and beyond the actually hurt caused (which is a good thing), yet every class action lawsuit I have ever qualified for has returned mere pennies on the dollar for my losses? It seems absurd that some company can commit high volume, small scale fraud, and when their hand is caught in the proverbial cookie jar, only be required to give back a few of the cookies!! I mean even with lawyer's fees, shouldn't we the plaintiffs get back two thirds? Even half!

Well, I'm pretty sure 99% of those classes get settled, so you aren't necessarily getting a judgment for actual (and definitely not punitive) damages. You're getting whatever amount the lawyers were willing to accept a third of. ;-)

Most of the class action settlements I've received do, for the most part, address the actual damages. But usually without any consideration for other factors. For instance, my PDA may have had defective capacitors that caused it to lose all memory every time I changed the batteries. Well when the suit is settled, they agree to replace the PDA with a same or like model, refurbished, that functions properly.

Which replaces their defective product, but doesn't actually address the year or more than I spent losing data and not getting full use of my device. Particularly if I've actually gone and replaced it by the time they settle. Of course, it's also my choice whether to join the class or attempt to get my own, more favorable settlement....but fat chance of that (which is why I'd like to see punitive damages set aside as legal aid for civil suits, at least giving people some possibility of doing so).

Anyway, that's just one example. Other fun ones are suits where the settlement is dispensed entirely in the offending company's funbucks. "Yeah, we know we fucked you over with defective shit. Here, have a $10 gift certificate for our store so you can buy more of our defective shit. Oh, only good on full-price items. Enjoy!"

I like the fund for civil court legal aid idea. Quite a bit more than the regulation fund idea.

AngelHedgie

Since it got covered up in the prior thread:

Kistra wrote: »

AngelHedgie wrote: »

Jealous Deva wrote: »

I haven't looked into the Swedish system, how do they determine if the doctor was at fault?

Right, the problem with the system isn't in the ratio of winning doctors vs losing doctors, it's that it's essentially random. Cases where egregious errors occur get nothing, cases where it's obvious there was no wrongdoing win millions.

No, it really isn't.

(Yes, I just referenced the AEI. Hope the devil has wooly unmentionables.)

I realize that this is several pages old, however, I think it is important to address. This report is kind of interesting, but I don't think the conclusions are valid. They look at all of medicine as a whole when in reality I think we need to look at different specialties individually.

Look at cerebral palsy. It is virtually never caused by a birth injury, but there is a whole industry of medmal lawyers that just sue the doctors supervising delivery of children with CP. They do this because they can parade the kid through court and win on a regular basis because 50 years ago doctors did think CP was caused by birth injury and apparently the general public would rather believe the doctors of 50 years ago than the ones of today. So while maybe only 25% of medmal cases in general are incorrectly given awards, there are specific diagnoses where that number is vastly different.

The other thing that document doesn't address at all is that just because a person was injured negligently it doesn't mean that they were injured negligently by the particular doctor named on their suit or all of the doctors named on their suits. There was a case recently where a medmal lawyer filed a medmal suit that included the architect and construction company because they argued that the layout of the hospital contributed to the delay in c-section that injured the baby. It not uncommon for medmal suits to name every doctor the patient has seen since the disease process could possibly have started. Just because one of those doctors did something negligently, the other doctors shouldn't also be punished. And while it may not be a tort law issue, if one of the doctors did something clearly negligent the insurance company is going to want to settle. If they are planning on settling anyways they aren't going to bother spending the time and money to get the other doctors names removed from the suit. Then the other doctors have to pay higher medmal insurance rates for the rest of their lives.

So, are you going to continue parroting right wing talking points? The only people I can find calling Edwards' argument "junk science" are the usual suspects like CNSNews and the usual conservative talking heads. Most legitimate places that discuss the causes of cerebral palsy note that while rare, issues with deliveries can be a factor. So no, I don't buy the "junk science" argument because it's coming from places that are, shall we say, "fact-challenged". The nice folks over at The Straight Dope had an interesting thread in the subject.

Second, yes, patients do throw every doctor involved into the mix - because often, it's the only way they can get answers. When medical procedures go wrong, many times doctors clam up, refusing to discuss what happened with the family. This forces the family to have to sue to find out what happened through discovery. This in turn engenders bad blood, and makes the process adversarial. Once the truth is outed in discovery, it doesn't take long for doctors not involved to be removed from the suit (as the time and effort to pursue a tort against them would be wasted.)

Third, obstetrics doesn't show any signs of being anomalous in terms of case results. The Harvard School of Public Health published in the New England Journal of Medicine a study where they independently reviewed approximately 1500 closed medmal cases, the majority from the period 1995-2004. In said study, they specifically focused on only four specializations, of which obstetrics was one, and took specialization into account. The study showed no deviation in error/no error based on specialization. So your argument that we need to look at specialties falls flat on its face.

Fourth, tort reform won't fix medmal insurance rates. I've brought this point up in thread after thread after thread. All it does is make insurers richer, as now their liabilities are capped, while giving them no incentive to lower rates.

Finally, doctors aren't really interested in fixing the issues with malpractice. Again, I've brought this point up as well. Over half of all doctors will never be sued in their entire career, according to the AMA. And the likelihood that they will win in court is pretty high if they are sued, as long as they are following professional guidelines. The true issue with malpractice is that it is a small cadre of "repeat offenders" who generate most medmal payouts, yet the system is hamstrung in removing these quacks from medicine. Only one in three doctors who have made 10 or more malpractice payouts receives any sort of disciplinary measure from their state medical board - a number that should scare the living shit out of you.

In short, you really need to stop clinging to debunked myths.

(Thanks to the Health Line blog for their insightful series on medical malpractice.)

Feral

AngelHedgie wrote: »

Second, yes, patients do throw every doctor involved into the mix - because often, it's the only way they can get answers. When medical procedures go wrong, many times doctors clam up, refusing to discuss what happened with the family. This forces the family to have to sue to find out what happened through discovery. This in turn engenders bad blood, and makes the process adversarial. Once the truth is outed in discovery, it doesn't take long for doctors not involved to be removed from the suit (as the time and effort to pursue a tort against them would be wasted.)

Third, obstetrics doesn't show any signs of being anomalous in terms of case results. The Harvard School of Public Health published in the New England Journal of Medicine a study where they independently reviewed approximately 1500 closed medmal cases, the majority from the period 1995-2004. In said study, they specifically focused on only four specializations, of which obstetrics was one, and took specialization into account. The study showed no deviation in error/no error based on specialization. So your argument that we need to look at specialties falls flat on its face.

Fourth, tort reform won't fix medmal insurance rates. I've brought this point up in thread after thread after thread. All it does is make insurers richer, as now their liabilities are capped, while giving them no incentive to lower rates.

Finally, doctors aren't really interested in fixing the issues with malpractice. Again, I've brought this point up as well. Over half of all doctors will never be sued in their entire career, according to the AMA. And the likelihood that they will win in court is pretty high if they are sued, as long as they are following professional guidelines. The true issue with malpractice is that it is a small cadre of "repeat offenders" who generate most medmal payouts, yet the system is hamstrung in removing these quacks from medicine. Only one in three doctors who have made 10 or more malpractice payouts receives any sort of disciplinary measure from their state medical board - a number that should scare the living shit out of you.

In short, you really need to stop clinging to debunked myths.

(Thanks to the Health Line blog for their insightful series on medical malpractice.)

I agree with your arguments... however, this all leads me to the conclusion that medical malpractice tort reform is necessary.

Not in the sense of "let's cap damages to bring down rates" but in the sense that the system is broken and nobody is getting any benefit out of it except a handful of unscrupulous doctors, lawyers, and insurance companies who have learned to game the broken system.

Fencingsax

Feral wrote: »

AngelHedgie wrote: »

Second, yes, patients do throw every doctor involved into the mix - because often, it's the only way they can get answers. When medical procedures go wrong, many times doctors clam up, refusing to discuss what happened with the family. This forces the family to have to sue to find out what happened through discovery. This in turn engenders bad blood, and makes the process adversarial. Once the truth is outed in discovery, it doesn't take long for doctors not involved to be removed from the suit (as the time and effort to pursue a tort against them would be wasted.)

Third, obstetrics doesn't show any signs of being anomalous in terms of case results. The Harvard School of Public Health published in the New England Journal of Medicine a study where they independently reviewed approximately 1500 closed medmal cases, the majority from the period 1995-2004. In said study, they specifically focused on only four specializations, of which obstetrics was one, and took specialization into account. The study showed no deviation in error/no error based on specialization. So your argument that we need to look at specialties falls flat on its face.

Fourth, tort reform won't fix medmal insurance rates. I've brought this point up in thread after thread after thread. All it does is make insurers richer, as now their liabilities are capped, while giving them no incentive to lower rates.

Finally, doctors aren't really interested in fixing the issues with malpractice. Again, I've brought this point up as well. Over half of all doctors will never be sued in their entire career, according to the AMA. And the likelihood that they will win in court is pretty high if they are sued, as long as they are following professional guidelines. The true issue with malpractice is that it is a small cadre of "repeat offenders" who generate most medmal payouts, yet the system is hamstrung in removing these quacks from medicine. Only one in three doctors who have made 10 or more malpractice payouts receives any sort of disciplinary measure from their state medical board - a number that should scare the living shit out of you.

In short, you really need to stop clinging to debunked myths.

(Thanks to the Health Line blog for their insightful series on medical malpractice.)

I agree with your arguments... however, this all leads me to the conclusion that medical malpractice tort reform is necessary.

Not in the sense of "let's cap damages to bring down rates" but in the sense that the system is broken and nobody is getting any benefit out of it except a handful of unscrupulous doctors, lawyers, and insurance companies who have learned to game the broken system.

Well, the problem there is more how the AMA runs in general than how they respond to malpractice specifically.

Boring7

AngelHedgie wrote: »

Second, yes, patients do throw every doctor involved into the mix - because often, it's the only way they can get answers. When medical procedures go wrong, many times doctors clam up, refusing to discuss what happened with the family. This forces the family to have to sue to find out what happened through discovery. This in turn engenders bad blood, and makes the process adversarial. Once the truth is outed in discovery, it doesn't take long for doctors not involved to be removed from the suit (as the time and effort to pursue a tort against them would be wasted.)

If I might pull in a personal account, coworker of mine just lost his sister under suspect circumstances. She went in for heart bypass, came out missing a leg, went back in with an infection on the stump, and isn't with us anymore. The hospital has been less than forthcoming with answers, but I don't think my coworker's family has the money to sue.

Plus they're brown in Texas, and while it's a cheap shot to bring race into it I am quite certain it is having a negative effect.

Yar

Boring7 wrote: »

Plus they're brown in Texas, and while it's a cheap shot to bring race into it I am quite certain it is having a negative effect.

Based on what you describe here, I'd think a lawyer would be willing to take a chance on this one for free. But I don't know much about it.

Also, I'll cross-post from the They-Whom-Shall-Not-Be-Named thread:

Yar wrote: »

I still think that tort and liability lawsuits are a powerful and largely successful force for progress. But I also think that sometimes we expect to much of it, and make too much of a grand stage for villians and victims, and are unwittingly teaching corporations that bullshit and politics are more important than trying to make reasonable and proper decisions. I thought they could come up with that on their own.

AngelHedgie

Remember the KBR rape case?

Thanks to a little slut shaming, they got a jury to toss it out.

Fencingsax

I assumed it was because they stole the rape kit.

Goumindong

MentalExercise wrote: »

I find our tort system works quite well in general, but with one exception. Why is it that we have judges and juries that can award punitive damages above and beyond the actually hurt caused (which is a good thing), yet every class action lawsuit I have ever qualified for has returned mere pennies on the dollar for my losses?

It is because the punitive damages part is applied to the companies size and what constitutes a damage to the company. So while this may be large for a large company, it can be equally shared among the many people that were damaged by the complaint. Usually your dollar value loss is small because the actual damage the court deems to have been done on each individual is small. And then the lawyers take their cut.

mythago

Boring7 wrote: »

If I might pull in a personal account, coworker of mine just lost his sister under suspect circumstances. She went in for heart bypass, came out missing a leg, went back in with an infection on the stump, and isn't with us anymore. The hospital has been less than forthcoming with answers, but I don't think my coworker's family has the money to sue.

Plus they're brown in Texas, and while it's a cheap shot to bring race into it I am quite certain it is having a negative effect.

I am so sorry.

The good news is that they don't need money to sue. Medical malpractice cases are on contingency.

The bad news is, yeah, they're in Texas: unofficial state motto "Business is business, and business must grow/Regardless of crummies in tummies, you know!" But it wouldn't hurt for them to talk to a lawyer.

mythago

Feral wrote: »

[
Not in the sense of "let's cap damages to bring down rates" but in the sense that the system is broken and nobody is getting any benefit out of it except a handful of unscrupulous doctors, lawyers, and insurance companies who have learned to game the broken system.

The goal of damages caps is not to reduce verdicts, it's to keep people from ever filing a lawsuit in the first place. It means if Dr. Fuckup kills a 30something father who works as an engineer and supports a wife and five children, then Dr. Fuckup is looking at an expensive and ugly malpractice suit. But if Dr. Fuckup kills the guy's retired 85-year-old grandfather, he probably gets away with it.

That's because before a lawyer takes a case on contingency she has to figure out the likely cost of the case, the likely recovery and the chances of winning. This is, overall a good thing, because it discourages frivolous lawsuits; who wants to put up their own money just to lose? But it also discourages lawsuits where the profit to the lawyer (recovery minus costs) is going to be very low.

And in a case where the person hurt did not have high "economic" damages - no wage loss to the family, no additional medical bills - all the damages are "noneconomic" (pain and suffering is part of this, but also loss of companionship and their presence in the lives of people who cared about them, and so on). When you limit those damages, you effectively make it not worth the lawyer's time to sue.