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The usual line of tort reform from the GOP is that this should be an integral part of any HCR bill.  For years they've lived in a world where this is the number one contributor to costs.  Yes, what are they doing in states where Republicans do better than Democrats?  Hmmmm......

Med-Mal Caps for States with 2 GOP Senators:

Alabama:  None (state court declared unconstitutional)

Arizona:  None (state court declared unconstitutional)

Georgia:  $250,000 on punitive damages only

Idaho:  $250,000 on non-economic; $250,000 punitive

Kansas:  $250,000 on non-economic; $5 million punitive

Kentucky:  None

[Mitch McConnell on Tort Reform:  

"Then we could start over and end junk lawsuits against doctors and hospitals that drive up costs, something the majority didn’t find any room for in their 2,074-page bill — not a word about controlling junk lawsuits against doctors and hospitals," McConnell said Dec. 1, 2009.

Maine:  Limits only for wrongful death cases ($400,000 non economic; $75,000 punitive)

Mississippi:  $500,000 non-economic; none on punitive

Oklahoma:  $300,000 non-economic; none for punitive

South Carolina:  None

Tennessee:  None

Texas:  $500,000 non-economic; none for punitive

Utah:  $400,000 for non-economic; none for punitive

Wyoming:  None
(state court declared unconstitutional; ballot effort in 2004 failed)

Med-Mal Caps for States with 1 GOP Senator:

Alaska:  None (declared unconstitutional by state court)

Florida:  $500,000 non-economic; $500,000 punitive

Indiana:  $1.25 million total limit

Iowa:  None

Louisiana:  $500,000 total

Missouri:  $565,000 non-economic; adjusted annually for inflation

Nebraska:  $1.75 million total

Nevada:  $350,000 non-economic; $300,000 punitive

New Hampshire:  None (declared unconstitutional by state court)

North Carolina:  None on non-economic; $250,000 punitive

Ohio:  $350,000 on non-economic

================================
So, let me get this straight....Republicans want tort reform for Med-Mal.  Yet, 6 of the states with two GOP senators--including the states of the Minority Leader, Minority Whip and last presidential candidate--don't have tort caps....

Seems like hypocrisy to me....

UPDATE:  Thanks for the comments.  To clear up some issues...

The med-mal caps are almost always the start of discussions of tort reforms.  The reason has less to do with what happens at trial so much as what happens along the way.  Essentially, the cap figure sets the limits of negotiations for when lawsuits are first brought.  Simplifying tremendously:

Thing happens.  Person decides s/he was wrongfully injured, contact plaintiff's attorney.  Plaintiffs' attorneys get paid only when winning (they will charge their client for some expenses/fees, but otherwise don't make the big bucks until the case is resolved).  Therefore, it is int their interest to get the most money from the defendant as possible while doing the least amount of work.  

Throughout the process, both sides are working towards what will be the resolution point--typically the place where the case goes away at the optimum price point--for the plaintiff, where the most money is paid in the least amount of time; for the defendant where the least amount of money is paid and where the plaintiff signs a confidentiality agreement.  

Because of this dynamic, very few med-mal cases ever get to trial.  However, while there are legal ways of making cases go away through the courts (summary judgment, etc.), these have high burdens of proof, and most judges tend to let cases go into the discovery phase.  Today, since the passage of HIPAA, the plaintiff has a leg up in that s/he only has to produce records that s/he has authorized.  Back in the day, subpoenas for any medical record (and sometimes psych records where they existed) could be issued without the consent of the patient.  

As the process moves forward, attorneys' fees pile up for the defendant (often $200-500/hour), pressuring the defense to settle out of court.  So, where do negotiations begin?  The caps provide the staring point.  If in a cap state, the cap represents the most for pain and suffering (plus any lost wages).  Punitive damages are very difficult to get, so it's usually the non-economic amount that represents the most money.  If there is no cap, then a good plaintiff's atty will set whatever is thought to be the optimum value of the case and go from there, especially if the case is compelling.  

This has led to forum shopping by plaintiffs' attorneys, where the hope is to find the place that will have no caps and where juries are seen as sympathetic to plaintiffs.  Again, the pressure is to make the other side negotiate a settlement.

Now, why is this hypocrisy?  Of the states above with no non-economic caps, 18/41 GOP senators are represented.  While, obviously, the senators are not part of state government, the fact that they are calling for a national change when their state parties have not succeeded in bringing change to their own states, is hypocritical.  The Southern states in particular are egregious.  

Personally, having worked for a corporate defense firm and seeing some pretty silly lawsuits, I could see the reasoning for caps.  One the other side, there were cases when the plaintiff was really and truly injured and where the cap of the state in questions was really insufficient to the damages.  

Originally posted to dizzydean on Sat Feb 27, 2010 at 09:48 AM PST.

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Comment Preferences

  •  Tip Jar (23+ / 0-)

    "The degree of responsibility increases as we draw further away from the man who uses the fatal instrument with his own hands." Israeli Court, Eichmann Trial

    by dizzydean on Sat Feb 27, 2010 at 09:48:48 AM PST

  •  Posting and running (7+ / 0-)

    It took me awhile to get this together, and now I have to run (real life and all)...I'll check back in later and hope this helps the debate...

    "The degree of responsibility increases as we draw further away from the man who uses the fatal instrument with his own hands." Israeli Court, Eichmann Trial

    by dizzydean on Sat Feb 27, 2010 at 09:51:18 AM PST

    •  One FIFTH of ONE PERCENT is the REAL cost! (2+ / 0-)
      Recommended by:
      Angie in WA State, msmacgyver

      July 2, 2009

      Medical Malpractice Payments Fall to Record Low, Public Citizen Study Shows

      Medical Malpractice Epidemic Persists Even as Compensation to Victims Decreases

      WASHINGTON, D.C. - Medical malpractice payments were at or near record lows in 2008, but the decline almost certainly indicates that a lower percentage of injured patients received compensation, not that health safety has improved, Public Citizen reported in a study released today.

      Medical malpractice is so common, and litigation over it so rare, that between three and seven Americans die from medical errors for every one who receives a payment for any malpractice claim, Public Citizen's analysis of medical malpractice payment data and the best available patient safety estimates indicate.

      For the third straight year, 2008 saw the lowest number of medical malpractice payments since the federal government's National Practitioner Data Bank began tracking such data in 1990. The 11,037 payments in 2008 were 30.7 percent lower than the average number of payments recorded by the NPDB in all previous years. Ratios of payments per capita and per physician have fallen even lower compared to historical norms. There were 13.5 payments per million physicians in 2006 (the most recent year for which the number of physicians is available), which is 29.2 percent lower than the average in previous years. The value of payments in 2008 (as distinct from the number of payments) was the lowest or second lowest on record, depending on the method used to adjust for inflation.

      The cost of the medical malpractice liability system - if measured broadly by adding all malpractice insurance premiums - fell to less than 0.6 percent of the $2.1 trillion in total national health care costs in 2006, the most recent year for which the necessary data to make such comparisons are available. The cost of actual malpractice payments fell to 0.18 percent - one-fifth of 1 percent - of all health care costs in 2006. Annual malpractice payments have subsequently fallen from $3.9 billion in 2006 to $3.6 billion in 2008, but comparative data on total health care costs are not available.

      "Any way you measure it, medical liability accounts for less than 1 percent of the country's health care costs, and the vast majority of victims receive no compensation whatsoever," said David Arkush, director of Public Citizen's Congress Watch division. "These are people who died or were left with serious permanent injuries - out of work, with enormous medical costs for the rest of their lives - and they and their families are getting nothing from the doctors and hospitals responsible."

      The relatively small amount paid out for medical malpractice generally goes to patients with the most serious injuries. More than 80 percent of the money paid out for medical malpractice in 2008 was for cases involving "significant permanent injuries"; "major permanent injuries"; injuries resulting in quadriplegia, brain damage or the need for permanent care; or death, according to NPDB reporting.

      Despite the hysteria surrounding debates over medical malpractice litigation, experts have repeatedly concluded that several times as many patients suffer avoidable injuries as those who sue. The best known such finding was included in the Institute of Medicine's (IOM) seminal 1999 study, "To Err Is Human," which concluded that between 44,000 and 98,000 Americans die every year because of avoidable medical errors. Fewer than 15,000 people (including those with non-fatal outcomes) received compensation for medical malpractice that year, and in 2008, the number receiving compensation fell to just over 11,000.

      There is no evidence that errors are any less rampant today. Most of the IOM's safety recommendations have been ignored. Meanwhile, various safety indicators continue to raise alarms. For example, the Joint Commission, which accredits hospitals, learned about 116 occasions in which surgeons operated on the wrong part of a patient's body in 2008 and 71 times in which foreign objects were left inside patients' bodies. Health experts call these "never events," meaning that they simply should not happen at all.

      Proposals to limit patients' legal rights have sprung up in the debate over health reform. The most popular idea this year is to establish special tribunals that would theoretically offer payments to more patients but in smaller amounts. Policy makers who wish to cut costs should steer clear of these proposals, Arkush said. The high volume of medical errors and the current infrequency of payments to victims ensure that proposals to increase the number of payments would inevitably cost far more than the current system.

      The only economically feasible and, indeed, humane way to improve the system is to reduce the number of senseless and tragic medical errors in our hospitals. In its report, Public Citizen calls on Congress to put safety measures in place that would set the nation on course to meet the IOM's goal of cutting the number of avoidable deaths in half in five years.

      READ the report.

  •  I don't know why anyone is (10+ / 0-)

    really supportive of this.  If I go in to have a kidney removed and the doctor removed the wrong one because he  or she was someone who repeatedly was screwing up, I would want the chance to sue.  We all saw what Robert Bork did when he fell off a podium- he sued!  These people are completely full of it.  

    •  It goes beyond this even (5+ / 0-)
      Recommended by:
      vacantlook, skohayes, BYw, MsGrin, msmacgyver

      I don't know if you saw the report released a month or two ago that medical malpractice insurance carriers had one of the biggest profit increases of any sector. In fact, states that have done tort reform don't see significantly lower malpractice premiums for doctors — and it would seem like that's because the insurance companies are pocketing the savings from limiting malpractice awards. I know, what a big surprise.

      The other thing is, like many Republican talking points, this screeching about malpractice awards bankrupting our health-care system is just untrue. Awards have NOT grown astronomically.

      Stop Rob "The Job Outsourcer" Portman. Jennifer Brunner for Senate http://www.jenniferbrunner.com/

      by anastasia p on Sat Feb 27, 2010 at 10:56:13 AM PST

      [ Parent ]

      •  Here's a link: (2+ / 0-)
        Recommended by:
        satanicpanic, AguyinMI

        http://washingtonindependent.com/...

        "The American Association for Justice — the trial lawyers’ lobby group — has just released an astounding statistic:  medical malpractice insurance companies’ average profits are higher than those of 99 percent of Fortune 500 companies."

        Yeah, I know. Consider the source. Still .... who is surprised? Not me.

        Any "tort reform" needs to be accompanied by regulations that savings be passed on to doctors. I know it can be a little hard to stmpathize with doctors sicne they make so much more than most of us — but why should they be hit with unfairly astronomical premiums which we all pay for in the end?

        Stop Rob "The Job Outsourcer" Portman. Jennifer Brunner for Senate http://www.jenniferbrunner.com/

        by anastasia p on Sat Feb 27, 2010 at 11:03:45 AM PST

        [ Parent ]

      •  I have heard various things about tort (2+ / 0-)
        Recommended by:
        BYw, msmacgyver

        reform not having an effect on malpractice because they just pocket the difference.  You're right, not surprising.  I was watching the summit the other day, and I think Durbin was saying how awards have gone down in recent years.  

        Tort reform just sounds good to people who hear stories about an old lady putting McDonald's coffee between her legs and getting a million dollars when she got burned, like she's so lucky, and we're all just a burned crotch and a short trip to court away from being millionaires.  People hate to think that someone will get something they don't deserve.  Democrats need to start making the point that if someone screws up you should have recourse.  Imagine someone wrecks the rest of your life and then the courts are limited to rewarding you $250,000.  That's a joke.  

  •  How come Tort reform never addresses (9+ / 0-)

    capping what the insurance companies can charge doctors?  That's the real problem, the insurance is going through the roof that doctors can't afford it.

    •  Or reforms litigation doctrine to provide... (8+ / 0-)

      .
      . . . for, say, attorneys' fees and treble damages if there's a finding of a "Frivolous Defense" (i.e., where liability and damages are clear, but the defendant and their/its attorney drag out the case with a "vigorous defense" for months or years, in hopes of just wearing down the plaintiff).  If anybody thinks that the "frivolousness" occurs only on the plaintiffs' side, then, as Dave Lister says, we need to flag down a cab for them and send 'em to Real Street.

      .

      "I have to go now. I feel . . . sticky." Anthony Bourdain

      by BenGoshi on Sat Feb 27, 2010 at 09:59:20 AM PST

      [ Parent ]

      •  I appreciate you saying this (4+ / 0-)
        Recommended by:
        BenGoshi, JanetT in MD, agnostic, BYw

        If anybody thinks that the "frivolousness" occurs only on the plaintiffs' side, then, as Dave Lister says, we need to flag down a cab for them and send 'em to Real Street.

        it is something that is so rarely mentioned, and so very true.

        -6.25 -5.3 Let's drink some brewed beer, burn some brains and maybe sing a little gospel...

        by dansk47 on Sat Feb 27, 2010 at 10:21:43 AM PST

        [ Parent ]

      •  Great idea! (1+ / 0-)
        Recommended by:
        BenGoshi

        When I read "tort reform", I immediately translate that to "tort deform", but this is one change I would really like to see.

        I am become Man, the destroyer of worlds

        by tle on Sat Feb 27, 2010 at 10:50:05 AM PST

        [ Parent ]

    •  I disagree (1+ / 0-)
      Recommended by:
      ExStr8

      While physicians will complain about their malpractice insurance costs...and for some specialties they are completely out of whack, the real reason for tort reform is eliminate the CYA testing that is driving up healtcare costs.

      Just as the US is the only industrialized country with such a fucked up system of health care, we are also the only industrialized country with such a fucked up method of compensating those injured by medical mistakes.

      I don't want caps, but how about limiting the percentage on contigency cases to less than 30% (I've seen them as high as 60%), eliminate fee sharing (allows lawyers to plaintiff shop in the most plaintiff friendly states like Mississippi).

      I would love to have a health care system similar to France, I would love to have their system of compensetion for medical mistakes as well.

      •  Let's stop medical malpractice! (0+ / 0-)

        Most recent estimate was that over 100,000 deaths
        occur every year because of medical "mistatkes".

        Just using checklists--similar to what pilots use--
        can be a huge step in the right direction.

        Articles about Checklist Medical

        Stonewall was a RIOT!

        by ExStr8 on Sat Feb 27, 2010 at 11:00:48 AM PST

        [ Parent ]

        •  I'm sure it would become (0+ / 0-)

          standard of care, if you could promise physicians and other health care providors that they would be protected from most forms of litigation if they followed the checklist.

          Unfortunately in this country that isn't the case.  Many physicians follow the approprate standards of care and are still sued.  Go talk to an OB/GYN if you don't believe me, they have the highest insurance costs of any medical specialty and are sued many times due to factors largly out of their control (see John Edwards).

          •  HMOS keep lowering the standard of care (1+ / 0-)
            Recommended by:
            BYw
            The standard of care in the US is basically less now than it was in the past. The US isn't standing still, we are actually going backwards.

            The effect is that at least 80,000 people die a year from KNOWN medical mistakes. the real number os probebly several times that. We will never know, because they are covered up.

            •  you are mistaking standard of care (0+ / 0-)

              In medicine the standard of care is the protocol followed for a diagnosis or treatment.

              See my example for above for the standard of care for a cardioversion of afib.

              And as far as HMOs are concerned...they actually do a better job in protecting against medical mistakes than hospitals and physicians using the fee for service model.  HMOs like Kaiser are on the leading edge when it comes to comparative effectiveness testing and risk management because minimizing mistakes is good business when your paid on the DRG.

              Which brings up another point, if we were really interersted in improving care and decreasing costs we would eliminate the fee for service model that rewards physicians and hospitals for medical mistakes (oops, we gave you an infection, now here is your bill to treat it...)and un-needed procedures and tests.

              And if you were in the medical field you would see that we are not going backwards when it comes to the basic care of patients.  While not perfect, and extremely wasteful, our medical system has consistantly prolonged our lives, increased early dedection of disease, and improved the quality of life (on average) of American citizens.

              Do too many die from medical mistakes?  Absolutely, but do you actually think for one second that there were fewer mistakes 50 years ago?  I sure don't...there were as many, and probably more, but they were never called a mistake back then.

  •  No, the real hypocrisy is that they want to... (10+ / 0-)

    .
    . . . Federalize State Common Law, as well as override state statutes and Rules of Civil Procedure all the while whining and pitching hissy-fits about Obama and the Democrats wanting to set some national floor standards for health insurance policies and practices.

    That plus the demonstrable fact that so called "Tort Reform" is a canard/strawman/red herring (and make sure to click the link that's in the Comment, too).

    .

    "I have to go now. I feel . . . sticky." Anthony Bourdain

    by BenGoshi on Sat Feb 27, 2010 at 09:55:26 AM PST

  •  You need to go one step farther (5+ / 0-)
    Recommended by:
    Gary Norton, Scioto, skohayes, BYw, Alec82

    The states where there are tort caps do not show any difference in their HC costs or rate of growth.

    In theory, there is no difference between theory and practice; but in practice, there always is a difference. - Yogi Berra

    by blue aardvark on Sat Feb 27, 2010 at 09:55:26 AM PST

    •  I've heard that (1+ / 0-)
      Recommended by:
      Alec82

      and that's what I was expecting to see in this diary.  I'd like to see some actual verification of this.

      Still, very interesting stuff in this diary.

      •  I think its outrageously wrong that anyone (0+ / 0-)
        even brings this up. They should be raising the number of lawsuits, because it is obviously not deterring the doctors from the terrible health care they deliver thanks to HMOs and their gag clauses.

        This is from Public Citizen's report: Medical Malpractice Payments Fall to Record Low, Public Citizen Study Shows: Medical Malpractice Epidemic Persists Even as Compensation to Victims Decreases

        "Medical malpractice is so common, and litigation over it so rare, that between three and seven Americans die from medical errors for every one who receives a payment for any malpractice claim, Public Citizen's analysis of medical malpractice payment data and the best available patient safety estimates indicate.

        For the third straight year, 2008 saw the lowest number of medical malpractice payments since the federal government's National Practitioner Data Bank began tracking such data in 1990. The 11,037 payments in 2008 were 30.7 percent lower than the average number of payments recorded by the NPDB in all previous years. Ratios of payments per capita and per physician have fallen even lower compared to historical norms. There were 13.5 payments per million physicians in 2006 (the most recent year for which the number of physicians is available), which is 29.2 percent lower than the average in previous years. The value of payments in 2008 (as distinct from the number of payments) was the lowest or second lowest on record, depending on the method used to adjust for inflation.

        The cost of the medical malpractice liability system - if measured broadly by adding all malpractice insurance premiums - fell to less than 0.6 percent of the $2.1 trillion in total national health care costs in 2006, the most recent year for which the necessary data to make such comparisons are available. The cost of actual malpractice payments fell to 0.18 percent - one-fifth of 1 percent - of all health care costs in 2006. Annual malpractice payments have subsequently fallen from $3.9 billion in 2006 to $3.6 billion in 2008, but comparative data on total health care costs are not available.

        "Any way you measure it, medical liability accounts for less than 1 percent of the country's health care costs, and the vast majority of victims receive no compensation whatsoever," said David Arkush, director of Public Citizen's Congress Watch division. "These are people who died or were left with serious permanent injuries - out of work, with enormous medical costs for the rest of their lives - and they and their families are getting nothing from the doctors and hospitals responsible."

  •  how do caps on meritorious claims end junk suits? (1+ / 0-)
    Recommended by:
    agnostic

     It always amazes me how silly is our political discourse about this subject -

    the pontificators of legal B.S. (see Mitch McConnell above) want to end "junk" lawsuits - but every reform merely caps meritorious ones.  

     Want to end junk lawsuits - adopt the so-called British rule - loser pays the others side's attorney fees - then all the incentives are to fairly evaluate and settle cases - but the insurance companies that actually pay the awards would howl like the stuck pigs they are and as a recent sage noted Republicans are wholly owned subsidiaries of the insurance scam industry.

    •  No. (14+ / 0-)

      .
        First of all "junk suits" are a modern myth invented by the insurance industry and repeated by their parrot/shills on the House and Senate floor.

       
       Yes, alas, there's always an anecdote here or there or over the course of 1-3 years one or two headline-grabbers out of all the thousands and thousands of lawsuits filed in U.S. Courts every year, stories about this or that unscrupulous plaintiff's lawyer, but the incentive is not to take bad, stupid, time-wasting dog cases.  If some dumbass lawyer here or there does it, well, welcome to the diversity of America.  But such things are less-than-drops-in-the-bucket of the overall docket and are money/time wasters.  That's why they're called "dog" cases.  

       Again, if it's a bad case, it's gonna get dismissed.  Once in a very blue moon such a case might get through a Motion to Dismiss,  a Motion for Summary Judgment,  a Motion for Directed Verdict (3 tools in defense counsel's arsenal to keep a case from even getting to a jury), a Motion JNOV (to throw out a plaintiff's verdict even if a jury comes back in favor of a plaintiff), a Motion for New Trial, a Motion for Remittitur (to reduce an award), and 1-3 or so appeals, but if a case (and plaintiff's verdict) survives all that, then, by definition, the odds are infinitesimal that it's a "dog" or otherwise dubious claim.  

        Oh, and if any of the (defense) Motions noted above are denied and the defense lawyer thinks that the Judge(s) didn't give the Motion proper or adequate consideration, he/she can always file a "Motion to Reconsider" for any of those.  And remember the plaintiff carries the burden of proof at trial, not the defendant.

       Lay people have little-to-no concept of what it takes to actually get a case to trial, win at trial and keep any verdict a jury may award.

        It's not "easy money" and is, in fact, a rare thing -- and that's with the best of cases.
      .

      "I have to go now. I feel . . . sticky." Anthony Bourdain

      by BenGoshi on Sat Feb 27, 2010 at 10:06:29 AM PST

      [ Parent ]

      •  are you saying no to loser pays? n/t (0+ / 0-)

        Your world is black and white. I live in vibrant color.

        by lr3921 on Sat Feb 27, 2010 at 10:27:35 AM PST

        [ Parent ]

        •  Yes, I say no to it. (4+ / 0-)

          Cute rule, sounds Ayn Randish in theory, but it prevents pretty much all smaller claimants from even trying to pursue justice, leaving the courts as a forum for the well heeled. Argue all you want, but that is the practical upshot.

          Either we have unfettered access to the courts, or we don't. Besides, every state has a form of Rule 11 (the federal civil procedural rule that grants costs and penalties to a party when the opponent lies in court, brings incredible and worthless actions, and is otherwise abusing the system) relief for all parties.

          What we call god is merely a living creature with superior technology & understanding. If their fragile egos demand prayer, they lose that superiority.

          by agnostic on Sat Feb 27, 2010 at 10:35:31 AM PST

          [ Parent ]

          •  i don't know enough about it (0+ / 0-)

            It's a new idea to me so I have to think it through.  Why would it prevent smaller claimants?  If you brought forth a case and won, your legal costs would be paid by the other party.  I can see why it's suggested - if you didn't have a strong case you might be less inclined to pursue it.  And defendants might be less inclined to settle.  But a kink in that logic might be that if someone brings a case and loses, would they really have assets to pay any court costs?  If not, defendants would still be out the monies they paid, so is there any more incentive not to settle?

            Your world is black and white. I live in vibrant color.

            by lr3921 on Sat Feb 27, 2010 at 10:44:01 AM PST

            [ Parent ]

            •  Defendants, who are represented by insurance (4+ / 0-)
              Recommended by:
              Val, BenGoshi, SingularExistence, BYw

              companies have infinite financial resources compared with injured plaintiffs. The plaintiffs lawyers, if it's a big firm, have some resources and can front money. But even people with meritorious case lose. If they have to bear the defendants costs it will force most of them to never begin the case.

              Remember, "frivolous" is supposed to mean "totally without merit." In every suit there is a winner and a loser. The losers case wasn't without merit just because they lost.

          •  Bingo. I say much the same below. (0+ / 0-)

            .
             You said it in less words.  Kudos.
            .

            "I have to go now. I feel . . . sticky." Anthony Bourdain

            by BenGoshi on Sat Feb 27, 2010 at 11:03:57 AM PST

            [ Parent ]

        •  Of course I say No to that "loser pays" bullshit. (4+ / 0-)
          Recommended by:
          Val, anastasia p, skohayes, BYw

          .

           You think a woman who has a legitimate employment discrimination claim against a large corporation will even risk going forward with a case if there's a chance she may end up losing the case?!?!

           One can have a good faith, solid claim, and yet still lose.  In employment discrimination, other kinds of civil rights, and products liability cases it's regular Americans going against companies, often behemoth companies, and to adopt that "loser pays" bullshit is to only further chill any inclination a wronged or injured person has to go forward with a claim/lawsuit.

           I litigated day in and day out -- not infrequently on the defense, mind you -- and the Insurance/GOP myth (popularized in movies and sitcoms, I might add) that everybody "runs to the courthouse" is, well, just what I said, a myth.  I the vast majority of times, going to a lawyer is the last resort for people, whether in a property dispute or a matter of on-the-job sexual harassment; not a first resort.

           There IS NO "lawsuit crises", which is the whole bullshit grounds upon which the bullshit "loser pays" meme is rooted.
          .

          "I have to go now. I feel . . . sticky." Anthony Bourdain

          by BenGoshi on Sat Feb 27, 2010 at 11:00:47 AM PST

          [ Parent ]

          •  To clarify: in the first sentence I should've... (0+ / 0-)

            .
            . . . written:  " . . . if there's even a chance she may end up losing the case and then having to pay that same company (or it's insurance company) $30,000, $75,000, $125,000 or $200,000 in attorneys fees?!?!"

             

            "I have to go now. I feel . . . sticky." Anthony Bourdain

            by BenGoshi on Sat Feb 27, 2010 at 11:23:25 AM PST

            [ Parent ]

      •  I agree with you - I represent individuals vs. (1+ / 0-)
        Recommended by:
        Val

         the insurance companies and large corporations.

         Nothing I wrote should be construed to argue that all we hear about so called tort "reform" is pure propaganda.  

           My argument is that none of the actual reforms address the problem raised.  The propagandists argue that the system is full of junk lawsuits - but no reform addresses those suits (think Bush v. Gore, Paula Jones v. Clinton, O'Reilly v. Franken, - those are junk suits and the Republicans are scared to death of not having the courts available for their nonsense).

         

      •  You are leaving out an important pre-step (1+ / 0-)
        Recommended by:
        BenGoshi

        About half of the states now have medical panels that have to approve a med-mal case before it can even be filed.

        •  Oh, I was talking about *any* civil action. (0+ / 0-)

          .
           Add many more barriers to Med Mal ("falls below the standard of care") actions.  That's what that whole tort deform was all about doing:  putting up more roadblocks.

          .

          "I have to go now. I feel . . . sticky." Anthony Bourdain

          by BenGoshi on Sat Feb 27, 2010 at 12:05:28 PM PST

          [ Parent ]

    •  The loser pays thing (0+ / 0-)

      could discourage merit-based suits if defendents feel they can't get a fair shake. Here in Ohio, for instance, elected judges frequently raise huge amounts from insurance companies. In our Supreme Court, one judge was the topic of a New York Times cover story in 2006 which found that he decided with his campaign donots 91% of the time. Why would you even bother to bring a suit — no matter how meritorious — if there was a possibility of a judge like that awarding YOUR money to a campaign contributor>

      Campaign finance reform needs to start with judicial races.

      Stop Rob "The Job Outsourcer" Portman. Jennifer Brunner for Senate http://www.jenniferbrunner.com/

      by anastasia p on Sat Feb 27, 2010 at 11:11:19 AM PST

      [ Parent ]

  •  GOP's emphasis is on federal laws (0+ / 0-)

    that usurp the authority of states, thus forcing states, both blue and red, to comply with laws implemented by the federal bureaucracy that corporations easily influence.

    But, it's still hypocritical.

  •  So 21 of 25 states enacted caps of some sort. (0+ / 0-)

    That's a pretty high percentage, and I don't see how it supports your hypocrisy charge.  If anything, I'm surprised by how aligned the stated position of the national GOP is w/ the policies enacted by the local legislatures of the states w/ two GOP senators.  ie, what's surprising is the consistency, not the hypocrisy.

  •  37 states have med mal tort reform (2+ / 0-)
    Recommended by:
    NoMoJoe, BYw

    of various kinds.

    The problem with the GOP is that they shoot the messenger. If they REALLY wanted to lower verdicts and exposure, why not go directly to the problem? The Doctors who commit the malpractice?

    Every study I have seen supports the idea that a very small percentage of doctors make up the vast majority of all malpractice claims. If the MDs simply cleaned up their own act, the incidence of malpractice would drop drastically.

    I have yet to hear a democrat raise this issue to any spewing GOPer. For the life of me, I cannot figure out why they don't raise it.

    What we call god is merely a living creature with superior technology & understanding. If their fragile egos demand prayer, they lose that superiority.

    by agnostic on Sat Feb 27, 2010 at 10:31:58 AM PST

    •  how about taking out the profit motive? (0+ / 0-)

      for the lawyers?

      Why is it that every other westernized country in the world doesn't have this issue?  Are the doctors so much better (don't think so)?

      Other countries have systems that send the vast majority of compensation to the victims, not the lawyers who represent them.

      Also other countries have systems that protect physicians who consistently follow the standard of care.  In other words if I'm a cardiologist and I'm gonna do a cardioversion we do a TEE to r/o clot in the left atrial appendage...if the patient strokes out after the cardioversion I'm protected because I followed the standard of care.

      But that's not what happens in the USA

      •  Then there will be no cases and... (1+ / 0-)
        Recommended by:
        agnostic

        .
         . . . employment discrimination and civil rights violations will mushroom, with no check to make individuals/companies accountable.  Dangerous products will flood the market (ever heard of "China" where the court system hasn't caught up to the U.S.'s?).

         Or, you can always lobby to have all private plaintiffs' lawyers shut down and just create a Super Huge Government Agency that hires them for a guaranteed annual salary of, say, $200,000-$2.5 million year (depending, say, on years' experience and previous case success rate) and let these attorneys keep doing what they're doing.  

         Hell, with a guaranteed salary I'd go back into litigation!

         I'm sure the Republicans would love such a thing.

         There are less lawsuits in Western Europe and Japan because companies are more heavily regulated.  I'm sure many plaintiffs' lawyers and civil rights/products safety advocates would consider letting more intrusive regulation (and draconian enforcement by gov't investigators) take up some of the slack of the courts.  

         Certainly the GOP would back that idea, too.
        .

        "I have to go now. I feel . . . sticky." Anthony Bourdain

        by BenGoshi on Sat Feb 27, 2010 at 11:42:16 AM PST

        [ Parent ]

        •  you are completely misrepresenting what I said (0+ / 0-)

          explain to me why lawyers need 30% to 50% of awards?

          Why do lawyers get to share fees with each other?

          Don't give me this "dangerous products would flood the market".  If the current system is doing such a good job how come 200000 people die due to medical mistakes each year?  Why is it that Wester Europe doesn't spend nearly as much money on litigation (nor have nearly as many lawyers)?  

          I don't want to eliminate lawsuits, I want to make sure that the victims get most of the compensations and not the lawyers.

          But hey, if you will only help victims for $200k a year...

          I used to believe the crap your selling about lawyers, until I worked with a few when they sued Wyeth for Phen/fen...made me realize that they were just as greedy as any banker.

          •  Heh, try drying that spot behind thine ears, son. (0+ / 0-)

            "The victims get most of the compensation, not the lawyers. "

            So, you resent the fact that lawyers spend thousands of hours, interviewing witnesses, doing chemical, physics, accident reconstruction, medical, human factors research, BEFORE they decide to take a difficult case?
            OK, we need to do that for free. Fine.
            Then, when we gather evidence, with subpoenas, depositions, witness statements, police reports, medical records, EACH OF WHICH CAN COST AN ARM AND A LEG, we should do that for free, too?
            OK, fine, we have now become a charitable institution. Because we have paid tens, if not hundreds of others to get to this point.
            Then, we have ever increasing filing fees, at which you can scoff.
            But if I have 100 cases, that means I have personally put in $32,400 of MY MONEY just to file a case.
            OK, FINE. you hate lawyers and want us to be a charitable institution.
            Many defendants avoid service, Instead of paying $60 for the sheriff (many of whom do a great job, but there are those who work like shit) I end up having to get a private process server. That happens 50 % of the time. So, 100 * $60, that's another $6000 out of my pocket, plus 50 * $180, for a private investigator to find someone who hides from me. So, that's $15,000 out of my pocket in an effort to get justice for 100 people who are hurt.
            $32,400
            $15,000
            -------
            $47,400

            and I haven't seen one dime as a greedy lawyer who takes too much of my clients' money.

            Then, considering the great brainwashing that the GOP has done, even in a clear liability case, I expect to lose 30% of my cases, even though I refuse to take anything that is frivolous or without merit.

            Now, I get to pay for records. A 3 day hospital stay means:
            a) I get to pay $250 for each medical record, doctor record, radiologist record, ER report, and EMT record. The minimum I can expect to pay is $2000 per case, just to get records.
             
            What if I need an expert? That's another $10,000 easy. If computerized accident reconstruction is required, that's $100,000 or more.
            OUT OF MY POCKET.

            And if I lose the case, all those costs are gone.
            So, tell me asshole, Why should I donate $10-20,000 per case of my time and effort, if assholes like you demand that I cannot get compensated for my time and effort?

            Fuck you.

            What we call god is merely a living creature with superior technology & understanding. If their fragile egos demand prayer, they lose that superiority.

            by agnostic on Sat Feb 27, 2010 at 05:09:42 PM PST

            [ Parent ]

            •  fuck you right back (0+ / 0-)

              son.

              Nice to hide behind your computer screen.  

              Gee when I worked for Frenkel and Frenkel out of Dallas they pulled in over $2M in 2002...for a two man office.

              And I'm glad to see that you answered what?  Zero of my questions.

              No wonder you do so poorly as a lawyer if all you got is "fuck you".

              Workin' great for ya isn't it shyster.

              •  you worked a real job? I would never (0+ / 0-)

                have guessed, not with the ineffable stupidity that you spout without regard for the facts.

                I'd call you a bastard, but I haven't had the pleasure of meeting your mother. Wait, was that her in the lock up last saturday?

                What we call god is merely a living creature with superior technology & understanding. If their fragile egos demand prayer, they lose that superiority.

                by agnostic on Sun Feb 28, 2010 at 04:50:45 AM PST

                [ Parent ]

        •  thanks, Ben, you said it better than I. (0+ / 0-)

          But, this wet behind the ears person hath pithed me off.

          See below.

          What we call god is merely a living creature with superior technology & understanding. If their fragile egos demand prayer, they lose that superiority.

          by agnostic on Sat Feb 27, 2010 at 05:11:02 PM PST

          [ Parent ]

      •  Actually, it is the standard in the US (0+ / 0-)
          •  Local standard of care (0+ / 0-)

            is what Doctors are bound to unless they are specialists, then it is the national standard of care.

            •  I'm still not sure what you are saying (0+ / 0-)

              Are you saying that my example is the standard of care?  Of course it is, that's why I used it as an example.

              Are you saying that physicians are protected from lawsuits if they follow standard of care?  If so, I would vigorously disagree.

              •  you vigorously haven't a clue, my friend. (0+ / 0-)

                that much is obvious.

                In fact, in most states, it is a complete defense to a malpractice case if a doctor's care was within the standard of care. Even if the result is bad, the injured party has no claim.

                Even a mistake is not actionable.

                Now this issue may be way too complex for people with your limited ability to process information, but the only way, in the vast majority of states, to file, try and win a malpractice case is to show

                a) A doctor's care and treatment failed to meet the local standard of care. Please note that geography and local practices have a huge impact. Courts understand and  accept the theory that the standard of medical practice in the Mayo Clinic reaches a certain standard, while the little shithole hole in the wall bar/hotel/casino and hospital where you were spawned may have an entirely different standard of care.

                b) Once you prove that a doctor did not meet to local standard of care, you still must prove that the doctor's actions or inaction was the proximate cause of the injury or death. Even you might grasp the idea that most people are already sick and ailing when they see a doctor. Showing that the new injury or illness did not exist at the time of the treatment, or that a condition should have been cured, but was made worse is no easy task.

                c) The doctor can still argue a lack of proximate cause, the likelihood that the patient would have died even absent any malpractice, and that his treatment met the local standard.

                No, I think I gave you too much information to process. Why not print this out, and come back in a year or three? That might be enough time for you to get the point.

                What we call god is merely a living creature with superior technology & understanding. If their fragile egos demand prayer, they lose that superiority.

                by agnostic on Sun Feb 28, 2010 at 04:59:32 AM PST

                [ Parent ]

                •  Was I responding to you? (0+ / 0-)

                  No, I wasn't.  So please stay on the sidelines unless called upon.

                  And why must you just dive right in with the insults yet again?  Perhaps someone with your limited ability just has nowhere other to go than personal attacks.

                  Like I told you before, it's easy be insulting hiding behind a computer screen in your mamma's basement.  Perhaps if you got off your fat ass and got outside for a little exercise you woulnd't be so angry and might actually have some friends.

                  Or you can stay inside your virtual world and pretend that have virtually kicked my virtual ass.

                  Now I am finished with you chubby...

  •  You realize U.S. Senator irrelevant to State law? (3+ / 0-)

    I mean, you must know that whatever a U.S. Senator says on the issue is basically irrelevant to the local (State) laws on the subject, right?

    It's like asking President Obama how he feels about a town ordinance against loitering in East Podunk.

  •  Malpractice INSURANCE. Remember that part... (4+ / 0-)

    The reason malpractice premiums go up is the same reason that health insurance premiums go up. It's a for-profit endeavor for the insurance company. And just as for health insurance, they have shareholders who expect to make an ever increasing profit on dividends, or they pull out and put their investment money elsewhere.

    The purpose of caps is to limit expenses to what the insurance company is willing to write off, that doesn't take a big chunk out of their profit margin.

    The other purpose for caps (in cases that involve, say, big corporations being held liable for dangerous work conditions, faulty products, or environmentally hazardous practices that save money but may cause liability to lawsuits) is to limit the cost to the company at fault to something they're willing to write off. So long as it is more "economical" to pay $250,000 to the family of an injured worker, than to fix the conditions that led to his death, which do you think the company (which has all those stockholders and board members to support) is going to do?

    McDonalds knew their coffee was too hot. But the higher temps kept the coffee fresher, thus allowing them to waste less -- and they didn't change the temperatures until they were forced to pay a whole day's worth of profit across the country.

    That's why the insurance companies want damage caps. It makes paying claims more economical. And they still raise premiums anyway, because they want to keep that "medical cost ratio" down to keep the stockholders happy.

    •  I've been waiting (1+ / 0-)
      Recommended by:
      BenGoshi

      for someone to point this out.

      It all comes back to the insurance companies, doesn't it?

      "I can't come to bed yet! Someone is WRONG on the Internet!" - XKCD

      by SingularExistence on Sat Feb 27, 2010 at 11:08:05 AM PST

      [ Parent ]

    •  The reason I signed-up on Daily Kos was... (3+ / 0-)
      Recommended by:
      Val, hoolia, skohayes

      .
      . . . in July '04 there it was mentioned in a WSJ or NYT article on political blogs, so I thought I'd check it out.  

       When I did there was this great diary up about the (Leibeck vs.) McDonald's case (or the Comment thread evolved into a big discussion of it, I forget).  In the few years preceding that summer of 2004 I had taught a "Legal Survey" course at a nearby community college and would spend an entire class on blasting the myths of the McDonald's case.  It always pleased me that even the most "hardened" Republican students I had would come 'round to agreeing that poor Mrs. Leibeck was justified in filing her lawsuit and that, if anything, the damages weren't enough.

       When I saw that that case being discussed and analyzed intelligently and rationally on this site, I signed up.
      .

      "I have to go now. I feel . . . sticky." Anthony Bourdain

      by BenGoshi on Sat Feb 27, 2010 at 11:32:40 AM PST

      [ Parent ]

  •  question (3+ / 0-)

    How many of those states have a Republican majority in the state legislature?

    Seems to me that is what really matters, after all state laws are passed by state government...not federal.

  •  People are missing the point of tort reform (0+ / 0-)

    It's not the legal costs that are increasing health costs.  It's the pressure it puts on doctors to practice defensive medicine - medicine that is unnecessary, costly, and in some cases can even harm the patient.

    As an example, a patient coming in with abdominal pain may come in with hallmark symptoms of gastritis (which is treatable), but just to be sure, the doctor orders an unnecessary CT scan (with great cost).  The unncessary CT scan finds an adrenal incidentaloma (abnormal growth) on top of the kidney, which could potentially be causing problems for the patient (but the patient isn't complaining of any symptoms related to the growth).  This leads to very costly diagnostics to determine whether the abnormal growth is actually a problem, even though the patient's original symptoms have very little to do with the abnormal growth.  The diagnostics themselves come with harm to the patient - every CT exposes the patient to harmful radiation, unnecessary surgery might be done to get rid of the growth, etc.

    Tort reform is necessary to help doctors to stop wasteful testing.

    •  Another bullshit myth. (0+ / 0-)

      .
       Gad.  We're supposed to be smarter than that here.

       Alas.

      .

      "I have to go now. I feel . . . sticky." Anthony Bourdain

      by BenGoshi on Sat Feb 27, 2010 at 11:43:29 AM PST

      [ Parent ]

      •  It's not a myth. Ask a doctor. (0+ / 0-)

        The art of defensive medicine is alive and well.

        I'm not saying this is the most major factor driving up health care costs.  But to control costs, EVERY factor needs to be addressed.  Let's not ignore this one just because so many lawyers are part of our constituency.

    •  So (0+ / 0-)

      Just ignore the abnormal growth? Is that the practice of medicine?

      •  If it doesn't cause symptoms, yes. (0+ / 0-)

        It's better to not know it's there sometimes.  The risk of surgery and repeat CT scanning can be worse than knowing that it's there. I'm not making this stuff up - it's part of any doctor's knowledge set.

        Check out this webpage.  http://emedicine.medscape.com/... 80% (!) of adrenal incidentalomas are benign.  Surgery has great risks, and repeated exposure to CT radiation is not good.

        •  That sounds plausible (0+ / 0-)

          but I would still rather know about it if it shows on a scan.

          •  Which is exactly why the scan shouldn't be done (0+ / 0-)

            in the first place.  Many times the only reason it's done is for defensive medicine.

            Once it shows up on a scan, doctors and patients are stuck between a rock and a hard place.  On one hand, there's an 80% chance it's fine.  Just do nothing, since the followup diagnostics can harm the patient and cost the patient and the health care system a lot of money.

            On the other hand, does any patient really want to live with that 20% chance it's not fine?  Do the diagnostics and there's a (small) chance you may avoid hardship for the patient in the future.  I can tell you most patients will go this way, even though the chances are low.

            If the scan hadn't been done, the patient would likely be fine and avoid the morbidity associated with testing.  If the adrenal adenoma was not benign, it would likely be caught later on when the patient had symptoms, and successfully treated.

            This story is the reason why doctor's don't do full body scans with CTs and MRIs at your physical - they really just ask if you have complaints.  Because unnecessary medicine can weigh on a patient psychologically and push the patient and doctor in useless, harmful, and wasteful directions sometimes.  The threat of lawsuits does make doctors practice defensive medicine, which leads to elevated medical costs.  The cost of malpractice insurance itself is not the issue here.

  •  Why can't MD's shop around for insuarnce? (0+ / 0-)

    Or self-insure even?

  •  Tort reform has always been the GOP's only (0+ / 0-)

    answer to the health care crisis in the U.S.  
    "It's all the fault of those trial lawyers!"

  •  Tort Reform and HCR (0+ / 0-)
    1.  Increases in the premium costs for malpractice insurance (and other insurances as well; my house insurance went up 25% last year) is primarily driven by the investments made by the insurance companies.  When the S&P 500 (a relatively safe investment for stocks) declined by 50% in 2007-2009, it wasn't just saps like you and me who lost money - the insurance companies did as well.  They don't take our premiums and stuff them under the mattress but they invest the premiums; when investments go bad, premiums have to go up to compensate.  Tort reform in Ohio over the last 30 years has proved that medical malpractice insurance has gone up despite tort reform - when the stock/bond prices plummet, the premiums have to go up.
    1.  Where there is "socialized medicine" there is no problem with medical malpractice insurance because the injured person/family knows that the injured party will be treated under the universal coverage provided by the state.  If families in the US knew that their loved one would be cared for after the incident of malpractice, they wouldn't want to sue (which is a heinous process in this country - you wouldn't want to go through this process if you could at all avoid it).  This would address the issue of defensive medicine overspending.  

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