# Tort reform: Do we need it? What type of reform is needed? Will we get it? **URL:** \ **Category:** Great Debates\ **Created:** [January 4, 2003, 5:50pm UTC](https://boards.straightdope.com/t/tort-reform-do-we-need-it-what-type-of-reform-is-needed-will-we-get-it/146634 "2003-01-04T17:50:30Z")\ **Posts on this page:** 20\ **Page:** 3
**Author:** ![Gadarene](https://avatars.discourse-cdn.com/v4/letter/g/e47c2d/32.png) [@Gadarene](https://boards.straightdope.com/u/Gadarene)\ **Post date:** [January 6, 2003, 3:17am UTC](https://boards.straightdope.com/t/tort-reform-do-we-need-it-what-type-of-reform-is-needed-will-we-get-it/146634/41 "2003-01-06T03:17:11Z")
> [@](#): > > The company doesn’t seek out the plaintiff. The lawyer seeks out a group of plaintiffs with similar exposure and then approaches the tortfeasor or its insurance company on behalf of the group. Once they become plaintiffs, the company doesn’t have to worry about them suing for future injuries when they occur, because they can’t. What part of that don’t you understand? Also, your phrase “on behalf of the group” is less than perfectly ingenuous because, as I’ve explained, settlements aren’t _made_ on a group basis (or at least not such a group basis as includes plaintiffs who aren’t injured). And your cite doesn’t address asymptomatic plaintiffs. It addresses plaintiffs that have no disability from the asbestos, which is completely different. You could be exhibiting symptoms of asbestosis but not yet be disabled by them. Even assuming the two things are the same, however, it doesn’t matter: nowhere have I said that nondisabled plaintiffs don’t try to sue. I’ve said that 1) plaintiffs’ firms will be reluctant to represent plaintiffs with little injury, 2) courts will be reluctant to allow the claims of such plaintiffs to proceed, and, as a result, 3) companies will be _very_ reluctant to settle with such plaintiffs. I don’t quite understand why you keep making these arguments; why don’t you just admit that your statement that asbestos plaintiffs without injuries collect in these suits is not correct, at least as regards the current legal landscape? ---
**Author:** ![squeegee](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/squeegee/32/14537_2.png) [@squeegee](https://boards.straightdope.com/u/squeegee)\ **Post date:** [January 6, 2003, 6:56am UTC](https://boards.straightdope.com/t/tort-reform-do-we-need-it-what-type-of-reform-is-needed-will-we-get-it/146634/42 "2003-01-06T06:56:28Z")
An alternative view is that: 1. Tort reform isn’t needed and jury awards are not out of control. 2. The cry for tort reform is led by the insurance industry – to cover insane rate increases because of unwise business practices. 3. The Republicans are in the pocket of the insurance industry. [Cite](http://www.consumerwatchdog.org/insurance/tortreform.php3) [Cite](http://www.lasvegassun.com/sunbin/stories/archives/2002/apr/12/513302216.html) [Cite](http://www.centerjd.org/lib/premium-deceit.htm) [Cite](http://www.insurance-reform.org/issues/dejavu.html) FWIW, I’m not happy with any of these cites. Nobody is quoting source material showing if jury awards really are out of control and have in fact increased or decreased in, say, the last 10 years. OTOH, they’re better than the cites **December** (hasn’t) provided. By the way, **December** , do I recall that you work for the insurance industry? 😛 ---
**Author:** ![december](https://avatars.discourse-cdn.com/v4/letter/d/838e76/32.png) [@december](https://boards.straightdope.com/u/december)\ **Post date:** [January 6, 2003, 1:30pm UTC](https://boards.straightdope.com/t/tort-reform-do-we-need-it-what-type-of-reform-is-needed-will-we-get-it/146634/43 "2003-01-06T13:30:47Z")
> [@](#): > > \*Originally posted by Gadarene \* > \*\*Once they become plaintiffs, the company doesn’t have to worry about them suing for future injuries when they occur, because they can’t. What part of that don’t you understand?..I don’t quite understand why you keep making these arguments; why don’t you just admit that your statement that asbestos plaintiffs without injuries collect in these suits is not correct, at least as regards the current legal landscape? \*\* I admit that I incorrectly used the word _“plaintiff,”_ to describe somebody seeking damamges. I ought to have said _“complainant,”_ a more general term that doesn’t necessarily imply the formal filing of a lawsuit. Someone can request payment for damages without filing a lawsuit. Most small auto liablity claims are settled on that sort of negotiated basis. I have been assuming that asbestos lawyers do the same thing, except that they may go to the insurance company on behalf of a group of complainants. There’s nothing in the law that precludes an asymptomatic complainant from asking for a settlement. It may make sense for an insurer to settle with such a person, because of the risk that symptoms might arise later. Furthermore, I’m not sure that not having symptoms is always black and white. Before a court decision, it may not be clear whether a particular individual would be judged to be “asymptomatic.” The potential uncertainty of whether an individual has “symptoms” is another reason for the insurance company to want to settle. > [@](#): > > **Spavined Gelding** > And it is my assertion that the high cost of medical and municipal liability insurance has more to do with, first, the medical profession’s reluctance to police its self and the tendency of municipalities to try to do things on the cheap and, second, with the losses suffered by insurers in the stock market that with any flood of unjustified damage awards. This is utter nonsense. In particular, regarding your theory about stock market losses: – You have no evidence or cites for this POV – malpractice insurers invest mostly in bonds, not stocks. – bonds have appreciated greatly due to the drop in interest rates. – In short, over the last 10 - 15 years, **insurance company investment income has been unusually _high_** , because of capital gains on their bond portfolio. **squeegee** , I never worked for “the insurance industry”; rather I worked for specific companies and for a rating bureau. I don’t work for an insurance company any more; I’m retired. You are right to dislike your sources, since they are lawyers or (I assume) supported by lawyers – people whose livelihood would be harmed by tort reform. You may think that insurance companies are the natural opponents of lawyers on the issue of tort reform, but that’s not so. Insurance companies, like lawyers, are in the tort business. Liability insurers do fight cases one at a time. However, if tort liability were eradicated, they’d be out of business, along with the plaintiffs’ attorneys. There’s a similar relationship between dentists and tooth decay, security guards and crime, etc. ---
**Author:** ![december](https://avatars.discourse-cdn.com/v4/letter/d/838e76/32.png) [@december](https://boards.straightdope.com/u/december)\ **Post date:** [January 6, 2003, 1:59pm UTC](https://boards.straightdope.com/t/tort-reform-do-we-need-it-what-type-of-reform-is-needed-will-we-get-it/146634/44 "2003-01-06T13:59:15Z")
Coincidentally, today’s Wall Street Journal has an [article](http://online.wsj.com/article/0,,SB1041808176471806224,00.html?mod=opinion) by Lester Brickman, a professor at the Benjamin N. Cardozo School of Law in New York, that responds to some of **Gadarene’s** points, and explains what’s really goin on now. (Cite requires paid subscription.) > [@](#): > > … Asbestos lawsuits – now expected to cost the U.S. economy more than $200 billion – will one day undoubtedly take a place in the pantheon of great American swindles… > > Ninety thousand new asbestos claims were filed last year – triple the number filed two years ago. The explosion came two decades ago when plaintiffs’ lawyers were forced to retarget their litigation as first the leading defendant, and then other defendants, went bankrupt… > > Courts did their share to directly further asbestos litigation by developing a “special asbestos law” – allowing seriously injured plaintiffs to prevail, without having to prove causation under standard tort-law principles. Making matters worse, the law is now not only applied to cases of dubious injury, but to cases with no injury. > > …But these hordes of prospecting lawyers soon ran into a wall – the actual numbers of sick people. At the rate of 4,000 malignancy claims a year, it would take too long to accommodate the pecuniary interests of tort lawyers. The universe of claimants had to be expanded. > > Presto: tens of thousands of claimants who were neither sick nor impaired but who won the asbestos lottery when mass x-ray screenings showed collagen deposits – benign lung abnormalities related to many environmental causes – were signed up. The claimants were then given scripts with blatant falsehoods to memorize and repeat in sworn testimony. For practical purposes, the supply of such plaintiffs claiming workplace exposure to asbestos but no injury is essentially infinite. Asbestos litigation will go on until the last dollar is extracted from an ever-widening group of defendants. > > Asbestos litigation today has come to consist, mainly, of unimpaired people reaping compensation at the expense of the genuinely injured, on the basis of prepared scripts with perjurious contents, backed by bogus medical evidence. Even though most asbestos cases today are risk free, especially when settled in huge batches, lawyers’ effective rates run from $5,000 to $25,000 an hour. > > Rampant fraud in asbestos litigation calls for a prosecutorial response… Those with no illness or impairment should not be able to destroy entire companies, wiping out shareholder value, employees’ 401(k) plans and thousands of jobs. ---
**Author:** ![squeegee](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/squeegee/32/14537_2.png) [@squeegee](https://boards.straightdope.com/u/squeegee)\ **Post date:** [January 6, 2003, 4:00pm UTC](https://boards.straightdope.com/t/tort-reform-do-we-need-it-what-type-of-reform-is-needed-will-we-get-it/146634/45 "2003-01-06T16:00:34Z")
> [@](#): > > \*Originally posted by december \* > This is utter nonsense. In particular, regarding your theory about stock market losses: > – You have no evidence or cites for this POV > – malpractice insurers invest mostly in bonds, not stocks. > – bonds have appreciated greatly due to the drop in interest rates. > – In short, over the last 10 - 15 years, **insurance company investment income has been unusually _high_** , because of capital gains on their bond portfolio. **December** , according to the [National Association of Independant Insurers](http://www.naii.org/Sitehome.nsf/InsuranceMarketConditionsTalkingPoints?OpenPage): > [@](#): > > Premiums were kept low for most of the 1990s as insurers competed intensely for market share. Insurers could afford to keep prices low **because a continuously rising stock market** enabled them to make up for underwriting losses through investment income. > [@](#): > > **The falling stock market** in recent months limits insurers’ ability to lower premiums to attract market share. > [@](#): > > The huge losses incurred by the terrorist attacks on September 11, **coupled with declines in the stock market** and low investment income, could well strain the capacity of the property/casualty insurance market in 2002. Emphases mine. > [@](#): > > \*Originally posted by december \* > **squeegee** , I never worked for “the insurance industry”; rather I worked for specific companies and for a rating bureau. I don’t work for an insurance company any more; I’m retired. Well, I did qualify it with an emoticon. 🙂 > [@](#): > > You are right to dislike your sources, since they are lawyers or (I assume) supported by lawyers – people whose livelihood would be harmed by tort reform. **December** , I’m still googling, trying to find some more impartial cites. Most of the information out there, from **both** sides (lawyers, insurers), looks extremely suspect and self-serving. > [@](#): > > You may think that insurance companies are the natural opponents of lawyers on the issue of tort reform, but that’s not so. Insurance companies, like lawyers, are in the tort business. Liability insurers do fight cases one at a time. However, if tort liability were eradicated, they’d be out of business, along with the plaintiffs’ attorneys. There’s a similar relationship between dentists and tooth decay, security guards and crime, etc. Forgive me, I must be slow today: insurers collect premiums, lawyers sue insurance companies (via insured defendants) to get some of thier assets. How are they not opponents? ---
**Author:** ![december](https://avatars.discourse-cdn.com/v4/letter/d/838e76/32.png) [@december](https://boards.straightdope.com/u/december)\ **Post date:** [January 6, 2003, 4:13pm UTC](https://boards.straightdope.com/t/tort-reform-do-we-need-it-what-type-of-reform-is-needed-will-we-get-it/146634/46 "2003-01-06T16:13:02Z")
> [@](#): > > \*Originally posted by squeegee \* > \*\*Forgive me, I must be slow today: insurers collect premiums, lawyers sue insurance companies (via insured defendants) to get some of thier assets. How are they not opponents? \*\* They are opponents on a case-by-case basis, but they are partners in the lawsuit business. The reason insurance companies can collect all that premium is because of all those claims. If the claims stopped, the premium would stop. Then the insurance companies would lose that line of business. Turning this around, the explosive growth of liability claims over the last 45 years engendered a comparable growth in the size of insurance companies. Insurance companies are happy with high losses, as long as the losses are predictable, so that they can charge adequate premium. Well done, **squeegee** , finding that NAII cite. (I was once a member of the NAII workers compensation committee.) Too bad you had to pull quotes out of context to try to support your POV. In fact, a section heading from your cite says, > [@](#): > > **Investment income helps insurers keep premiums low.** This is the opposite of what you alleged. ---
**Author:** ![Eva\_Luna](https://avatars.discourse-cdn.com/v4/letter/e/e495f1/32.png) [@Eva\_Luna](https://boards.straightdope.com/u/Eva_Luna)\ **Post date:** [January 6, 2003, 4:29pm UTC](https://boards.straightdope.com/t/tort-reform-do-we-need-it-what-type-of-reform-is-needed-will-we-get-it/146634/47 "2003-01-06T16:29:35Z")
> [@](#): > > \*Originally posted by december \* > \*\*(I was once a member of the NAII workers compensation committee.) \*\* So then why have’t you been able to dig up info on a single disproportionate damages verdict for a WC case in Illinois? Inquiring minds want to know… ---
**Author:** ![squeegee](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/squeegee/32/14537_2.png) [@squeegee](https://boards.straightdope.com/u/squeegee)\ **Post date:** [January 6, 2003, 4:30pm UTC](https://boards.straightdope.com/t/tort-reform-do-we-need-it-what-type-of-reform-is-needed-will-we-get-it/146634/48 "2003-01-06T16:30:28Z")
> [@](#): > > \*Originally posted by december \* > Well done, **squeegee** , finding that NAII cite. (I was once a member of the NAII workers compensation committee.) Too bad you had to pull quotes out of context to try to support your POV. What?!? I responding to your assertion that the insurers don’t invest in the stocks, mainly bonds, and haven’t been hurt by declining investments. My quotes from the NAII clearly showed that **they do invest in the stock market and have been hurt by the market decline** , which directly counters your assertion. How the hell is that being dishonest ??? ---
**Author:** ![artemis](https://avatars.discourse-cdn.com/v4/letter/a/91b2a8/32.png) [@artemis](https://boards.straightdope.com/u/artemis)\ **Post date:** [January 6, 2003, 4:39pm UTC](https://boards.straightdope.com/t/tort-reform-do-we-need-it-what-type-of-reform-is-needed-will-we-get-it/146634/49 "2003-01-06T16:39:54Z")
> [@](#): > > \*Originally posted by Spavined Gelding \* > **And it is my assertion that the high cost of medical and municipal liability insurance has more to do with, first, the medical profession’s reluctance to police its self…** If that is the major reason for the high price of medical malpractice insurance, then why the differential rates charged to different medical specialties, rates which appear to reflect the likelihood of a physician in that field becoming involved in a lawsuit? Do you honestly believe that neurosurgeons and OB-GYNS (two specialties that pay extremely high prices for malpractice coverage) are more likely to be incompetent (and thus sued more often) than pediatricians and internists? Is delivering a baby REALLY so much harder a skill for a physician to learn than treating a massive heart attack? Or is something else going on here? ---
**Author:** ![december](https://avatars.discourse-cdn.com/v4/letter/d/838e76/32.png) [@december](https://boards.straightdope.com/u/december)\ **Post date:** [January 6, 2003, 4:51pm UTC](https://boards.straightdope.com/t/tort-reform-do-we-need-it-what-type-of-reform-is-needed-will-we-get-it/146634/50 "2003-01-06T16:51:36Z")
> [@](#): > > \*Originally posted by Eva Luna \* > \*\*So then why have’t you been able to dig up info on a single disproportionate damages verdict for a WC case in Illinois? Inquiring minds want to know… \*\* Huh? I didn’t mean to say that. What I meant to say was that the various state WC laws established a no-fault system. An injured worker collects benefits whether or not the accident was his employer’s fault. The requirement is _“AOE-COE”_ – i.e., that the accident arose out of employment and be in the course of employment. However, the worker lost the right to get unlimited awards. Benefit amounts are scheduled. There are no pain and suffering awards. (It should be noted that medical benefits are now unlimited in every state, although they were originally limited.) States like California have strictly maintained the no-fault concept in their WC law (although there is nevertheless a great deal of litigation.) OTOH Illinois has enacted a number of loopholes, which often allow injured workers to to sue their employers. YMMV regarding whether permitting such suits is good public policy. **squeegee** , insurers do invest some of their assets in stocks, but they primarily invest in bonds. Furthermore, I believe that insurers that specialize in liability tend to stay away from stocks. There’s so much risk on the underwriting side that they try to avoid risk on the investment side. It is true that insurers had capital losses in the stock market last year. However, they made much larger gains in their bond and their stock portfolios over the last 15 years. Overall their investments have indeed helped keep primiums low. ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [January 6, 2003, 5:12pm UTC](https://boards.straightdope.com/t/tort-reform-do-we-need-it-what-type-of-reform-is-needed-will-we-get-it/146634/51 "2003-01-06T17:12:11Z")
> [@](#): > > \*Originally posted by artemis \* > Do you honestly believe that neurosurgeons and OB-GYNS (two specialties that pay extremely high prices for malpractice coverage) are more likely to be incompetent (and thus sued more often) than pediatricians and internists? Is delivering a baby REALLY so much harder a skill for a physician to learn than treating a massive heart attack? Or is something else going on here? The consequences of maplractice on the part of a neurosurgeoun or an obstetrician are more likely to be catastrophic than for a pediatrician or an internist. It costs more to insure against a risk of a catastrophic loss than it does to insure against an equal risk of a non-catastrophic loss. ---
**Author:** ![Spiritus\_Mundi](https://avatars.discourse-cdn.com/v4/letter/s/c68b51/32.png) [@Spiritus\_Mundi](https://boards.straightdope.com/u/Spiritus_Mundi)\ **Post date:** [January 6, 2003, 5:24pm UTC](https://boards.straightdope.com/t/tort-reform-do-we-need-it-what-type-of-reform-is-needed-will-we-get-it/146634/52 "2003-01-06T17:24:32Z")
**December** Since I don’t have a paid subscription to the site, perhaps you can quote the piece of the “article” in which Professor Brickman provides support for the statements, **“The claimants were then given scripts with blatant falsehoods to memorize and repeat in sworn testimony.”** I would assume that he references testimony from purjury trials or perhaps a statistical analysis based upon sampling interviews/questionaires. Of course, if it’s the latter we might run into problems, since the professor’s mathematical competence is obviouisly suspect. **“For practical purposes, the supply of such plaintiffs claiming workplace exposure to asbestos but no injury is essentially infinite.”** :rolleyes: ---
**Author:** ![december](https://avatars.discourse-cdn.com/v4/letter/d/838e76/32.png) [@december](https://boards.straightdope.com/u/december)\ **Post date:** [January 6, 2003, 5:25pm UTC](https://boards.straightdope.com/t/tort-reform-do-we-need-it-what-type-of-reform-is-needed-will-we-get-it/146634/53 "2003-01-06T17:25:18Z")
I said there was a great deal of litigation in Calif. WC. There is a great deal of lawyer involvement in the claims process, but most of it is not literally “litigation.” ---
**Author:** ![Gadarene](https://avatars.discourse-cdn.com/v4/letter/g/e47c2d/32.png) [@Gadarene](https://boards.straightdope.com/u/Gadarene)\ **Post date:** [January 6, 2003, 5:25pm UTC](https://boards.straightdope.com/t/tort-reform-do-we-need-it-what-type-of-reform-is-needed-will-we-get-it/146634/54 "2003-01-06T17:25:19Z")
I’d like a cite from Brickman, as well. Lord knows he seems impartial. ---
**Author:** ![Realhoops](https://avatars.discourse-cdn.com/v4/letter/r/8dc957/32.png) [@Realhoops](https://boards.straightdope.com/u/Realhoops)\ **Post date:** [January 6, 2003, 5:40pm UTC](https://boards.straightdope.com/t/tort-reform-do-we-need-it-what-type-of-reform-is-needed-will-we-get-it/146634/55 "2003-01-06T17:40:19Z")
> [@](#): > > \*Originally posted by december \* > \*\*(It should be noted that medical benefits are now unlimited in every state, although they were originally limited.) > \*\* Actually, they are not “unlimited.” In Nebraska, anyway, benefits are limited to a specific number of weeks. Unless you meant something else. ---
**Author:** ![Eva\_Luna](https://avatars.discourse-cdn.com/v4/letter/e/e495f1/32.png) [@Eva\_Luna](https://boards.straightdope.com/u/Eva_Luna)\ **Post date:** [January 6, 2003, 5:56pm UTC](https://boards.straightdope.com/t/tort-reform-do-we-need-it-what-type-of-reform-is-needed-will-we-get-it/146634/56 "2003-01-06T17:56:29Z")
> [@](#): > > \*Originally posted by december \* > \*\*Huh? I didn’t mean to say that. > > What I meant to say was that the various state WC laws established a no-fault system. An injured worker collects benefits whether or not the accident was his employer’s fault. The requirement is _“AOE-COE”_ – i.e., that the accident arose out of employment and be in the course of employment. However, the worker lost the right to get unlimited awards. Benefit amounts are scheduled. There are no pain and suffering awards. (It should be noted that medical benefits are now unlimited in every state, although they were originally limited.) > > States like California have strictly maintained the no-fault concept in their WC law (although there is nevertheless a great deal of litigation.) OTOH Illinois has enacted a number of loopholes, which often allow injured workers to to sue their employers. YMMV regarding whether permitting such suits is good public policy. > > \*\* Huh? I didn’t mean to say that. What I meant to say was that the various state WC laws established a no-fault system. An injured worker collects benefits whether or not the accident was his employer’s fault. The requirement is “AOE-COE” – i.e., that the accident arose out of employment and be in the course of employment. However, the worker lost the right to get unlimited awards. Benefit amounts are scheduled. There are no pain and suffering awards. (It should be noted that medical benefits are now unlimited in every state, although they were originally limited.) States like California have strictly maintained the no-fault concept in their WC law (although there is nevertheless a great deal of litigation.) OTOH Illinois has enacted a number of loopholes, which often allow injured workers to to sue their employers. YMMV regarding whether permitting such suits is good public policy. OK, I’m really confused now as to what your original point was. Do you think no-fault WC payments are a bad idea in general? Do you think that having scheduled benefits was a bad idea? And BTW, it’s been a while, but I wasn’t aware of any significant changes in the past few years in the structure of IL’s WC system; are you saying that TTD benefits are scheduled, or that compensation for permanent disability is scheduled? If so, do you think that neither, one, or both of these are bad ideas? I can see how, arguably, the inability to get pain and suffering awards might be a reasonable swap, from the worker’s point of view, for a no-fault system that eliminates the degree of worker responsibility for the accident from the equation. But to take the logic a step further, since the potential for future injury-related medical expenses is theoretically unlimited, why should the employer’s responsibility for medical expenses be capped? Oh, and what loopholes are you talking about in IL that allow workers to sue employers unjustifiably? All the cases I ever saw were ones where the employee was forced to sue in order to get legally defined benefits; many employers would refuse to pay TTD, or refuse to pay medical expenses, or engage in retaliatory firing, or try to get injured employees to come back to work against medical advice by threatening them with firing or cutting off TTD if they didn’t…the list goes on and on. And that was in cases where the cause of the injury was clear-cut; when it was something like a repetitive-motion injury, where it’s almost impossible to determine the cause with 100% certainty, things got even messier. Throw in issues like union membership, immigration status of the employee, etc., and there are all sorts of opportunities for employer mayhem. Even if the employee wins out in the end in court, that could be months or years later, and what’s the guy supposed to live on in the meantime? And what would have been the value of a permanently disabled employee’s future earnings? Should the employer or the employer’s insurer get to decide that? Or should it be decided by an impartial party, based on input from all sides? That’s why we have a court system to decide these issues! ---
**Author:** ![Eva\_Luna](https://avatars.discourse-cdn.com/v4/letter/e/e495f1/32.png) [@Eva\_Luna](https://boards.straightdope.com/u/Eva_Luna)\ **Post date:** [January 6, 2003, 5:58pm UTC](https://boards.straightdope.com/t/tort-reform-do-we-need-it-what-type-of-reform-is-needed-will-we-get-it/146634/57 "2003-01-06T17:58:16Z")
My apologies for the screwed-up coding. Obviously, the first paragraphs of my post were \*\*december’s. \*\* ---
**Author:** ![artemis](https://avatars.discourse-cdn.com/v4/letter/a/91b2a8/32.png) [@artemis](https://boards.straightdope.com/u/artemis)\ **Post date:** [January 6, 2003, 6:16pm UTC](https://boards.straightdope.com/t/tort-reform-do-we-need-it-what-type-of-reform-is-needed-will-we-get-it/146634/58 "2003-01-06T18:16:19Z")
> [@](#): > > \*Originally posted by minty green \* > \*\*The consequences of maplractice on the part of a neurosurgeoun or an obstetrician are more likely to be catastrophic than for a pediatrician or an internist. It costs more to insure against a risk of a catastrophic loss than it does to insure against an equal risk of a non-catastrophic loss. \*\* True. Which would seem to put paid **Spavined Gelding’s** claim that the high cost of medical liability insurance, which is driving practitioners in some specialties (such as OB-GYN) in several states to close their practices, is mostly due to the medical profession’s reluctance to police itself. It has more to due with the unequal nature of the risks an ordinary practitioner in different specialties assumes in the context of routine practice. If we as a society want neurosurgeons and obstetricians, we’re going to have to accept at some point that catastrophic outcomes are more likely in those fields than in many others, and don’t by themselves necessarily indicate malpractice. ---
**Author:** ![december](https://avatars.discourse-cdn.com/v4/letter/d/838e76/32.png) [@december](https://boards.straightdope.com/u/december)\ **Post date:** [January 6, 2003, 6:30pm UTC](https://boards.straightdope.com/t/tort-reform-do-we-need-it-what-type-of-reform-is-needed-will-we-get-it/146634/59 "2003-01-06T18:30:09Z")
- Realhoops\*, I see I was using jargon. Thanks for the opportunity to clarify. “Indemnity benefits” reimburse workers for wage loss temporarily disabled and also indemnify the worker for any degree of permanent injury or disability. They are generally limited to a specific number of weeks, depending on the seriousness of the injury. The amount is a percentage of salary (often around 2/3), but with a cap. In a minority of situations, the indemnity benefits escalate with wage inflation. “Medical benefits” pay doctors, hospitals, medical rehabilitation providers, etc. for medical care. These benefits are unlimited both in amount and time. These benefits can be very important for a seriously injured worker, because if he needs expensive medical care decades after the accident, the cost will be fully covered. **Eva Luna** , let me try to respond to your questions: > [@](#): > > Do you think no-fault WC payments are a bad idea in general? On the contrary, I think the WC system is outstanding. It’s relatively efficient. It enourages workplace safety. It pays adequate amounts to injured workers regardless of fault. And, it’s not so expensive as to cause economic harm. > [@](#): > > Do you think that having scheduled benefits was a bad idea? I think it’s a good idea, as a way to keep costs in check and to have equity. > [@](#): > > And BTW, it’s been a while, but I wasn’t aware of any significant changes in the past few years in the structure of IL’s WC system Right. I haven’t been directly involved with WC since early 1985, so my comments reflect that date and prior. > [@](#): > > are you saying that TTD benefits are scheduled, or that compensation for permanent disability is scheduled? Both of them are. > [@](#): > > If so, do you think that neither, one, or both of these are bad ideas? I favor having a schedule. > [@](#): > > But to take the logic a step further, since the potential for future injury-related medical expenses is theoretically unlimited, why should the employer’s responsibility for medical expenses be capped? I suppose that people were concerned with costs when the original WC laws capped medical coverage. However, today all state laws cover medical expenses without limit. > [@](#): > > Oh, and what loopholes are you talking about in IL that allow workers to sue employers unjustifiably? I’m not saying the suits are unjustified. I’m saying that they violate the basic no-fault concept underlying WC. > [@](#): > > All the cases I ever saw were ones where the employee was forced to sue in order to get legally defined benefits; many employers would refuse to pay TTD, or refuse to pay medical expenses, or engage in retaliatory firing, or try to get injured employees to come back to work against medical advice by threatening them with firing or cutting off TTD if they didn’t…the list goes on and on. And that was in cases where the cause of the injury was clear-cut; when it was something like a repetitive-motion injury, where it’s almost impossible to determine the cause with 100% certainty, things got even messier. Throw in issues like union membership, immigration status of the employee, etc., and there are all sorts of opportunities for employer mayhem. Even if the employee wins out in the end in court, that could be months or years later, and what’s the guy supposed to live on in the meantime? Yes, these sorts of things are sometimes problems in all states. Of course, lawyers see the exceptions where the WC system fails; the system works well in most cases. I have heard the Illinois loophole called the “Scaffolding Act” or “Safe Place to Work.” It holds that in some situations, the injured worker can bring a liability suit against his employer if the workplace wasn’t safe. This gives the injured worker two ways to collect for a workplace injury. He gets at least his WC benefits. If he can demonstrate an unsafe workplace, he can sue for more. > [@](#): > > And what would have been the value of a permanently disabled employee’s future earnings? Should the employer or the employer’s insurer get to decide that? Or should it be decided by an impartial party, based on input from all sides? That’s why we have a court system to decide these issues! Not quite. Benefits for a disabled worker are not ever set by the insurance company or employer. The State Labor Law includes formulas, based on the seriousness of the disability. If there’s a dispute, the state WC Appeals Board makes the judgment about the degree of disability. I expect that many of the cases your firm worked on were heard by the WC appeals body, rather than by a court. The real question is whether the dispute should be settled by an impartial WC Judge, based on strict legal standards, or by an impartial court system, operating without strict standards. I prefer the former, but there are arguments the other way. ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [January 6, 2003, 8:16pm UTC](https://boards.straightdope.com/t/tort-reform-do-we-need-it-what-type-of-reform-is-needed-will-we-get-it/146634/60 "2003-01-06T20:16:15Z")
> [@](#): > > \*Originally posted by artemis \* > If we as a society want neurosurgeons and obstetricians, we’re going to have to accept at some point that catastrophic outcomes are more likely in those fields than in many others, and don’t by themselves necessarily indicate malpractice. Yes, and? Nobody here has claimed that a catastrophic outcome = malpractice. [Previous page](https://boards.straightdope.com/t/tort-reform-do-we-need-it-what-type-of-reform-is-needed-will-we-get-it/146634.md?page=2) [Next page](https://boards.straightdope.com/t/tort-reform-do-we-need-it-what-type-of-reform-is-needed-will-we-get-it/146634.md?page=4)