Frivolous is often in the eye of the beholder. But think about this. If a lawsuit is truly frivolous, the defendant should win easily (a frivolous lawsuit has no merit, after all). So the only cost to the defendant is attorneys’ fees. Attorneys’ fees are paid by the insurance company, in this kind of case. So the only cost to the hospital would be increased insurance premiums.
So then we have to rely on the insurance companies to account for the portion of the premium that is attributable to frivolous lawsuit defense costs. I doubt they have accurate statistics on this. It is rare for a court to actually find that a lawsuit was frivolous. The best we can hope for, then, is the total cost to insurance companies of lawsuits that they have won. But not every lawsuit that the company wins is frivolous. And what about lawsuits that get settled?
Another sort of frivolous lawsuit expense that gets neglected is the cost of frivolous defenses. I’ve seen many of these. What if the hospitals insurer appoints a slick defense lawyer who forces a trial when it is obvious that the hospital is at fault. Or the lawyer spends hundreds of thousands of dolllars on motions practice asserting already-rejected legal theories, or resisting discovery? That cost would increase premiums, too. But nobody complains about that except trial lawyers.
a. No. I’ve never seen it happen. So I would say that it would result in higher profits for the insurance company.
b. I like doctors. I’m sure some of them might pass on savings. But I’ve never seen a professional roll back rates. Maybe the savings will prevent some from moving, limiting their practices, or raising their rates. So I guess my answer is yes and no.
Unless you have a mechanism for waiving security for costs, you will close the courts to the poorest defendants. Or at least some will argue that.
More significantly, there is a huge difference between costs, which are usually a few hundred dollars, and attorneys’ fees. Defense of a medical malpractice case that goes to trial can cost $100,000 or more. Plus there are expert witness fees and other niceties like that. In courts that have offer of settlement provisions that shift fees and similar provisions, it is not unusual for a losing plaintiff to get hit with a bill for $75,000. The usual follow up: bankruptcy.
Requiring a deposit of that amount would pretty much stop all medical malpractice cases.
I have heard (but cannot cite) that malpractice insurance constitutes only some small percentage of medical costs, usually 3-4%. If this is true, it undercuts the arguments for tort reform, at least as it applies to direct costs.
However, the argument is often advanced that the fear of malpractice lawsuits drives doctors to practice “defensive medicine”, ordering more tests than actually required, treating symptoms that will usually go away on their own, etc, significantly inflating the cost. Is there any validity to this theory?
(I do recall when my daughter injured her knee skiing, the doctor advised an MRI, although he acknowlaged that it probably would not give any more info than a standard X-ray in that particular case – and in fact, it did not do so.)
Conflicts of interest abound in litigation like this. But the lawyer never dictates what happens. It is the client’s case. If a lawyer acts against the client’s wishes, the lawyer will have a short career.
I have settled some great cases, even though I thought we could do better at trial. Often it was the simple desire for a quick settlement (so that the plaintiff could pay bills, not lose the house, or something like that) that drove the decision.
But you are right about lawyers being against tort reform. I have attended several phone-athons for the local Trial Lawyer’s Association seeking contributions to support lobbying efforts against tort reform measures. In those calls (from lawyer to lawyer) the callers never said, “Hey, this is unfair to our clients.” They said, “This will put us out of business.” Trial lawyers have an interest in making money, just like insurance companies do.
I won’t treat your cancer, but the lawyer who runs your HMO would probably like to see it your doctor spend as little as possible on your treatment, whether the doctor thought a more expensive treatment would be better or not. Society is definitely not better off without doctors, but insurance companies have yet to explain how “frivolous lawsuits” cause them to refuse to insure. This argument begs the question of whether tort reform will lower insurance premiums. I suggest that most of the costs of litigation are as related to punitive damages or frivolous lawsuits as WMDs were related to Iraq.
Trial lawyers only get their cut if they get the plaintiff money. True, this system creates a conflct of interest, but in most cases, the conflict is insignificant.
We can argue all day about the fairness of specific damage awards. The problem is that it is a forced transaction, and therefore there is no market. Suppose your wife dies because the anesthesiologist is negligent during a routine surgery. Now suppose that the anesthesiologist came to you before the surgery and said, I’m going to kill your wife, how much do you want for your loss? Would you say, “Hey, she’s not earning any money anyway, it’ll cost me $2000 a month to hire someone to do her work at home, so just give me that, and I’ll call it even?” I doubt it. You’d want a bunch of money.
Non-economic damages compensate people for pain and suffering, and other unquantifiable losses that they would prefer not to have suffered. There is no perfect way to determine them, but in this country we have decided that a jury gets to take the first shot at it.
And while we are at it, how will the life of a huge corporation be bettered by getting three times the amount that it lost because a competitor violated antitrust laws? Why shouldn’t those damages be capped?
The argument is that tort reform is necessary because malpractice insurance premiums are too high. I don’t know what percentage of the overall cost of doing business they amount to.
“Defensive medicine,” is a broad term. It used to be discussed under the broader title, “risk management.”
Malpractice liability definitely causes doctors to do things that they wouldn’t if they were immune from liability.
But that’s the point of tort law. We want people to exercise ordinary care, and follow standards of care. It avoids injuries. If they don’t exercise ordinary care, and their failure to do so results in an injury, we expect them to pay for it.
And risk management is practiced in every industry. In your example, the MRI probably would not have revealed anything else, but what if it had? Or what if the doctor had decided not to order one, and it turned out that had he ordered one, the MRI would have revealed important information.
All of these factors are taken into account by Ontario’s rule.
First, “costs” means “fees plus disbursements” in Ontario - that is, the whole deal. So naturally the amounts are substantial.
Second, the security is only required in certain enumerated cases. The onus is on the moving party to show that the security is required in the interests of justice.
Third, the onus then shifts to responding party to demonstrate that the interests of justice require no security - that is, to demonstrate impecuniousity (which is not the same as “no assets in the jurisdiction”).
Fourth, security will only be ordered for a genuinely impecunious plaintiff, in effect stopping the litigation cold, if the defendant demonstrates that the case is frivolous.
In other words, in the medical malpractice situation, a genuinely impecunious plaintiff will not be prevented from bringing a case - but he or she will be required to demonstrate that the case is not frivolous. Which appears fair. A person should not be put at risk of frivolous litigation without the possibility of reimbursement for money expended in defence; on the other hand, genuine litigation should not be blocked by cost rules.
The primary effect of the security for costs rule is to prevent the bringing of actions by shell corporations without assets.
Michigan has a statute that is designed to screen out frivolous medical malpractice cases, too. It requires an affidavit of merit signed by an expert to be filed with the complaint.
Throughout history society has developed ways to mitigate risk. the best way to do it is via insurance. What is insurance? It is the assumoption of risk by a large number of people. This allows those who have suffered a loss to receive compensation. Tort lawsuits are the attempt by an injured party to recover from another party…and when we are speaking of medical care, there is an infinite amount of risk. The example of anesthesia…every time you submit to general anesthesia you are risking your life. even if the doctor is an expert and makes no mistakes, you can still wind up dead. I simply don’t see why or how a jury of 12 ordinary people can decide who did what wrong…and even awrd punitive damages.
Suppose you go to a doctor, complaining of a headache…and he checks you and finds no obvious problems…he tells you to take aspirin. Later, you find that you have a serious medical condition, which the doctor failed to diagnose. Do you:
(1) Sue him?
(2) See another doctor?
(3) Sit and ponder who made a mistake
Personally, I think that insurance is better than going to court. It ultimately does the same thing (i.e. society pays, collectively), and it does not unjustly enrich a third party (a lawyer).
Again, you can argue the issue, but when malpractice insurance rates are up to $200-300,000/year for brain surgeons, you are going to see a drop in the number of brain surgeons.
I am not aware of any state that holds a faultless person liable for damages. So yes, there are always risks. But courts only impose liability under limited conditions.
Who should we ask? Do we need blue ribbon panels instead of juries? Or should we give up on the notion of fault altogether?
Or should we just leave the damages where they lie?
Again, we can eliminate the concept of fault in one of two ways. We can either have social insurance that pays for some economic losses no matter what happened. Or simply say, “tough.” If your neighbor runs your child over with their car, the law could simply offer you no remedy. Your medical insurance covers the medical bills. And If you bought life insurance, that should cover the cost of the funeral. You’re fine. Of course, your medical insurance probably does not pay for all of the medical bills, what with deductibles and all, so you might need an umbrella policy too. So now these costs are all paid by your own insurers.
I interrupt this response to explain an important distinction in insurance coverages–there are two kinds of private insurance. First party insurance coverage is insurance that you buy to cover your own damages. Health insurance and collision coverage are first party insurance coverages. Third party insurance coverage covers you against claims made against you by others. This is also called liability insurance. Medical malpractice insurance is a kind third party insurance. Homeowners and automobile policies usually have both kinds of coverages.
Back to our story. So now your claims are made to your first party insurers. Under the current system, they get to recoup some of that money through subrogation. Now they have to pay those costs themselves. Which probably means that they will raise premiums.
Those who do not buy first party insurance will impose costs on the society. They will increase claims to social programs, for one thing.
But there will be less obvious costs associated with this plan. Part of the idea behind the tort system is that it acts to control dangerous behavior. It interalizes the externalities caused by behaviors whose costs exceed the burden of safer behaviors. http://en.wikipedia.org/wiki/Calculus_of_negligence
So we can expect that injuries will increase under this system. Which will also mean more first party claims, which will cause first party premiums to increase. Again.
What would your insurance plan cover? Would you sign up for the first policy if it meant giving up the right to sue anybody for anything? How much would you be willing to pay for a policy that insured you against someone else’s negligence? Would you feel differently if you couldn’t afford the premium?
How are lawyers unjustly enriched?
This begs several questions:
How much was it before that?
How much revenue does the average brain surgeon take in yearly?
II think that GFACTOR is confused by the nature of risk. Take vaccination. By submitting to vaccination, you do two things:
(1) You benefit youself and society
(2) You expose yourself to risk. In the case of vaccines, a very small number of people have a serious reaction to the vaccine. This may cause serious injury, even death, at a rate of a few parts per billion.
It is assumed that this slight risk is worth the benefit. Now, under our constitution, such an individual who has been harmed by the vaccine can bring suit for damages. under the present tort system, his case will be assessed by 12 ignorant people (from the lawyer’s point of view, the dumbest people he can get). This jury can award huge damages, of which the lawyer can legally claim 1/3 to half. This to me makes no sense…it is far more rerasonable that compensation via insurance be available. Forcing 12 ignoramuses to sit through testimony by scientific experts , spending hundred of thousands of dollars is just a waste of resources. Nothing new will be learned in the trial (aka “search for the truth”). At the end, society pays, and a few lawyers make a LOT of money.
I fail to see how this benefits society.
The United States Constitution has nothing to do with state tort law. It’s up to the states to decide what liability rules to adopt.
Ah risk. One of life’s greatest mysteries. Funny you should mention product liability law in conjunction with risk. Product liablity is all about risk allocation. As you can see from the above link, states vary on how they choose to impose liability for injuries caused by products. But the basic philosophy of product liability is all about risk–risk from a defective product. Some states decided that it was most efficient to allocate the risk of loss from injuries from defective products to those who manufacture and sell them. They are able to determine the risks, and to incorporate the expected costs of exposure to the risks into the costs of doing business. They manage these risks in two ways:
a. By reducing them through testing, designing safer products, and warning consumers about dangers that are inherent in the products. This benefits society by reducing the number of accidents and the costs of those accidents. In places where they have no-fault plans, those who seek to control risks must find another way to create incentives to lower the number of accidents (New Zealand, for instance);
b. By buying insurance, which as you have pointed out, spreads the losses among a larger group. By the way, the risk spreading does not end there. Insurance companies spread risk among themselves through reinsurance and reinsured risks are insured again through retrocession.
So compensation is available through insurance. The question is who should pay for the insurance, the people most able to control the risks (manufacturers, for instance), or the people upon whom the costs of the risks initially fall (in your example, vaccine recipients)?
As I have pointed out, some jurisdictions have created social insurance systems like you appear to be suggesting. You could lobby for such a system in your state, if you wanted to.
And some states have passed tort reform measures to modify product liability law.
Here is a summary of state tort reform measures covering product liability.
Here is a summary of medical malpractice laws passed by various state legislatures.
Wait. You were explaining how I didn’t understand risk. But you seem not to understand that the risk is to people, not parts.
If society benefits because I take a risk, why shouldn’t society pay some of the costs associated with that risk?
The New Zealand plan that I mentioned before was adopted because the Kiwis believed (as you seem to) that trials are an inefficient way to allocate the costs of accidents.
There are those who argue that jury trials, or trials generally, serve social functions beyond the obvious adjudication of facts and allocation of fault.
But others argue, at least implicitly, that these other benefits just aren’t worth the cost. And states are not obligated to give jury trials in civil cases.
Ok. So by comparing view tallies, I can see that more people on SDMB are interested in how Roland Deschain’s farts smell, than tort reform. Maybe we need federal fart legislation instead?
The lifelong care of a severely retarded, brain damaged quadripligic isn’t cheap. And it isn’t just the child’s life that has been damaged. What about his family? Shouldn’t they get anything for their anguish, their suffering?
Here’s a hypothetical for you. Assuming you’re a man, imagine a doctor negligently removes your penis during surgery without any justifiable cause. How much is that worth to you? Would you sue over it? How much would you get if we abolished punitive damages? What economic harm has it caused to your earning potential?
