# Tort Reform **URL:** \ **Category:** Great Debates\ **Created:** [June 28, 2011, 6:44pm UTC](https://boards.straightdope.com/t/tort-reform/587174 "2011-06-28T18:44:51Z")\ **Posts on this page:** 20\ **Page:** 3
**Author:** ![septimus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/septimus/32/410_2.png) [@septimus](https://boards.straightdope.com/u/septimus)\ **Post date:** [June 29, 2011, 4:48pm UTC](https://boards.straightdope.com/t/tort-reform/587174/41 "2011-06-29T16:48:11Z")
> [@brickbacon](#): > > I have very little sympathy for doctors when they do so little to prevent their own plight. Even simply things like washing hands and checklists are hard to implement because there is a culture that allows unchecked arrogance while doing little to prevent errors of ineptitude, identify best practices, or improve the delivery of health care. Lawyers are the least of our problems considering hospital borne infections, and malpractice are among the most common causes of death in this country. I would use your comment in support of my claim that malpractice litigation is not a good way to improve medical practice. I think you’re right that poor hospital sanitation practices are a big problem but I doubt they leave a clear evidence trail for a jury conviction. No one responded to my earlier post. In several ways, **malpractice litigation actually discourages good medical practice.** (The hand-washing example brings to mind an article a few years ago (in N.Y. Times?). Someone proposed a study in which some American hospitals would institute a forced hand-washing clothes-changing routine, and hospitals refused, because if outcomes improved, a wave of litigation might ensue.) ---
**Author:** ![MikeF](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@MikeF](https://boards.straightdope.com/u/MikeF)\ **Post date:** [June 29, 2011, 6:35pm UTC](https://boards.straightdope.com/t/tort-reform/587174/42 "2011-06-29T18:35:25Z")
Shodan suggests looking at yow much trial lawyers are donating at [opensecrets.org](http://opensecrets.org). Good idea. The top contributor was the American Association for Justice, a decidedly left-leaning organization opposed to tort reforms among other things. They contributed $3.8 million to campaigns in 2010 and spent another $3.9 Million on lobbying. In 2008 the industry as a whole contributed $234 million to federal political candidates and interests. The way I read it is that this represents ALL lawyers and law firms. the US Chamber of Commerce spent $144 million (itself) on lobbying in 2009, 5 times the next biggest spender, Exxon. When they spend money no one knows who the real sources are. At least the lawyers have to be up front about it. ---
**Author:** ![Muffin](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/muffin/32/4341_2.png) [@Muffin](https://boards.straightdope.com/u/Muffin)\ **Post date:** [June 29, 2011, 6:45pm UTC](https://boards.straightdope.com/t/tort-reform/587174/43 "2011-06-29T18:45:40Z")
Are legal costs awards made against people who lose? Are orders for security for legal costs made against people who have enough of a case to keep the case alive but otherwise look like they will eventually lose? ---
**Author:** ![MikeF](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@MikeF](https://boards.straightdope.com/u/MikeF)\ **Post date:** [June 29, 2011, 7:15pm UTC](https://boards.straightdope.com/t/tort-reform/587174/44 "2011-06-29T19:15:24Z")
The Link provided by Tom Tildrum is an article concerned primarily with credit card or other arbitrations where credit was extended. I think these are faily simple cases - either you owe the money as a result of having used the credit card or you don’t. The same could be said, I’m sure, for cell phone bills or whatever. I guess there could be a case where a credit card company was somehow negligent where the customers life was somehow ruined but I assume that they are few and far between. Its the employment arbitration agreements that I find questionable. You have to agree to give up your right to sue your employer in order to get the job. While the court rendered a bit of a split decision in the Halliburton case, they did say that hostile work environment and sexual harrasment were within the scope of the arbitration agreement. The results of the arbitration (or if it even took place) are unknown. Are there any current/former arbitartors out there who would care to comment on the presence or absence outside pressure in reaching a decision? It seems a bit difficult to find impartial analysis of the whole debate. Everyone seems to be firmly planted on one side or the other. ---
**Author:** ![shiftless](https://avatars.discourse-cdn.com/v4/letter/s/e9c0ed/32.png) [@shiftless](https://boards.straightdope.com/u/shiftless)\ **Post date:** [June 29, 2011, 7:37pm UTC](https://boards.straightdope.com/t/tort-reform/587174/45 "2011-06-29T19:37:12Z")
> [@MikeF](#): > > Its the employment arbitration agreements that I find questionable. You have to agree to give up your right to sue your employer in order to get the job. While the court rendered a bit of a split decision in the Halliburton case, they did say that hostile work environment and sexual harrasment were within the scope of the arbitration agreement. The results of the arbitration (or if it even took place) are unknown. This part had me wondering. How is it possible to give up my rights by agreeing to arbitration? My agreement to go through a the arbitration process shouldn’t satisfy the government’s desire to have corporations, or anyone else, follow the law. If, for example, I sign an arbitration agreement with my drug dealer does the state step aside if the deal goes bad? If the police arrive mid-deal do we just present the arbitration agreement and send them on their way? I suppose arbitration may cover up the wrong doing in some cases, where both parties agree to the outcome, but murder, rape, theft, that sort of thing - surely these fall within the interest of the state. In the HBO story, the women claimed she was beaten and raped. Was she prevented from seeking justice because of the arbitration agreement or because she was outside the USA, or was it some combination of both? ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [June 29, 2011, 8:05pm UTC](https://boards.straightdope.com/t/tort-reform/587174/46 "2011-06-29T20:05:44Z")
> [@Muffin](#): > > Are legal costs awards made against people who lose? Costs yes, attorneys fees almost never (unless there is a fee switching provision in the statute, which is rare). Costs are a minor part here. ---
**Author:** ![artemis](https://avatars.discourse-cdn.com/v4/letter/a/91b2a8/32.png) [@artemis](https://boards.straightdope.com/u/artemis)\ **Post date:** [June 29, 2011, 8:53pm UTC](https://boards.straightdope.com/t/tort-reform/587174/47 "2011-06-29T20:53:09Z")
> [@MikeF](#): > > I guess there could be a case where a credit card company was somehow negligent where the customers life was somehow ruined but I assume that they are few and far between. I’m not sure that’s a safe assumption to make. A lot of large companies (including credit card companies) aren’t as careful about securing their databases as they should be. And then there’s the whole issue of identity theft, where the burden is placed on the victim to prove they DIDN’T apply for that card and run up $50,000 in charges… > [@MikeF](#): > > Its the employment arbitration agreements that I find questionable. You have to agree to give up your right to sue your employer in order to get the job. While the court rendered a bit of a split decision in the Halliburton case, they did say that hostile work environment and sexual harrasment were within the scope of the arbitration agreement. I agree, this is very problematic. How can behavior as serious as sexual harassment be seen as falling under the scope of arbitration? Arbitration might work for a salary dispute, but sexual harassment is a totally different thing! > [@MikeF](#): > > Are there any current/former arbitartors out there who would care to comment on the presence or absence outside pressure in reaching a decision? It seems a bit difficult to find impartial analysis of the whole debate. Everyone seems to be firmly planted on one side or the other. I’d be curious to hear a professional arbitrator’s take on the situation, too. ---
**Author:** ![artemis](https://avatars.discourse-cdn.com/v4/letter/a/91b2a8/32.png) [@artemis](https://boards.straightdope.com/u/artemis)\ **Post date:** [June 29, 2011, 9:06pm UTC](https://boards.straightdope.com/t/tort-reform/587174/48 "2011-06-29T21:06:38Z")
> [@septimus](#): > > No one responded to my earlier post. In several ways, **malpractice litigation actually discourages good medical practice.** That’s true, and it’s because malpractice suits hold _individuals_ at fault, while often the problem occurred because of a more general flaw in the whole _system_ - a whole group of people make a series of very small errors, the cumulative effect of which is harm to the patient. Improving processes, not punishing individuals, is the key to decreasing that sort of error. Anesthesiology took such an approach, and it lead to the redesign of anesthesia machines to make the most serious errors (such as turning the oxygen flow down to zero) impossible to make. Your suggestion of implementing a “no-fault” compensation system to help injured patients regardless of whether or not their injury was the result of medical error is actually done in one area of medicine already: vaccines. And that system is probably the only reason we have any companies around willing to manufacture vaccines at all; prior to its implementation, the high litigation risk was driving pharmaceutical companies out of the business, which threatened to cause vaccine shortages. ---
**Author:** ![Procrustus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/procrustus/32/2994_2.png) [@Procrustus](https://boards.straightdope.com/u/Procrustus)\ **Post date:** [June 29, 2011, 9:08pm UTC](https://boards.straightdope.com/t/tort-reform/587174/49 "2011-06-29T21:08:56Z")
> [@Muffin](#): > > Are legal costs awards made against people who lose? > > Are orders for security for legal costs made against people who have enough of a case to keep the case alive but otherwise look like they will eventually lose? Alaska has a “loser pays” provision in its civil rules. Turns out it’s the corporate defenders who most often pay it. If a poor plaintiff loses his or her case, there are usually no assets to pay the fees of the defense lawyer. If a rich corporation loses, they end up paying the judgment plus some extra for fees. (not total or actual fees, but a percentage based on a formula). So, corporate America and tort reformers, be careful what you wish for. ---
**Author:** ![etv78](https://avatars.discourse-cdn.com/v4/letter/e/d78d45/32.png) [@etv78](https://boards.straightdope.com/u/etv78)\ **Post date:** [June 29, 2011, 9:21pm UTC](https://boards.straightdope.com/t/tort-reform/587174/50 "2011-06-29T21:21:27Z")
> [@artemis](#): > > That’s true, and it’s because malpractice suits hold _individuals_ at fault, while often the problem occurred because of a more general flaw in the whole _system_ - a whole group of people make a series of very small errors, the cumulative effect of which is harm to the patient. Improving processes, not punishing individuals, is the key to decreasing that sort of error. Anesthesiology took such an approach, and it lead to the redesign of anesthesia machines to make the most serious errors (such as turning the oxygen flow down to zero) impossible to make. > > Your suggestion of implementing a “no-fault” compensation system to help injured patients regardless of whether or not their injury was the result of medical error is actually done in one area of medicine already: vaccines. And that system is probably the only reason we have any companies around willing to manufacture vaccines at all; prior to its implementation, the high litigation risk was driving pharmaceutical companies out of the business, which threatened to cause vaccine shortages. But isn’t it easier/better to hold the doctor responsible because, you know, “the buck stops here.” ---
**Author:** ![Fotheringay-Phipps](https://avatars.discourse-cdn.com/v4/letter/f/d9b06d/32.png) [@Fotheringay-Phipps](https://boards.straightdope.com/u/Fotheringay-Phipps)\ **Post date:** [June 29, 2011, 9:35pm UTC](https://boards.straightdope.com/t/tort-reform/587174/51 "2011-06-29T21:35:51Z")
> [@Peter\_Morris](#): > > I once saw a dramatic presentation (I think it was L.A. Law) where a tobacco company was willing to spend $5 million to fight a $4 million lawsuit. The reason - if they allowed the lawsuit to win, it would set a precedent, there would then be 10,000 other plaintiffs suing them who would have a much easier case based on the precedent. I don’t think that’s broadly applicable. There are very few tobacco companies in the US, and their possible liability was widely reported on for years. Every case involving a lawsuit against them was heavily publicized. I don’t think you can compare this to some relatively obscure manufacturer or insurer. > [@MikeF](#): > > Shodan suggests looking at yow much trial lawyers are donating at [opensecrets.org](http://opensecrets.org). Good idea. The top contributor was the American Association for Justice, a decidedly left-leaning organization opposed to tort reforms among other things. They contributed $3.8 million to campaigns in 2010 and spent another $3.9 Million on lobbying. In 2008 the industry as a whole contributed $234 million to federal political candidates and interests. The way I read it is that this represents ALL lawyers and law firms. the US Chamber of Commerce spent $144 million (itself) on lobbying in 2009, 5 times the next biggest spender, Exxon. When they spend money no one knows who the real sources are. At least the lawyers have to be up front about it. I’m not sure what your point is but you’ve shown that the trial lawyers outspent the COC by over 60%. It should also be be noted that while the trial lawyers are primarily focused on tort reform, the COC has a far broader set of issues that they lobby for (e.g. they were a player in the battle over HC reform). ---
**Author:** ![artemis](https://avatars.discourse-cdn.com/v4/letter/a/91b2a8/32.png) [@artemis](https://boards.straightdope.com/u/artemis)\ **Post date:** [June 29, 2011, 9:36pm UTC](https://boards.straightdope.com/t/tort-reform/587174/52 "2011-06-29T21:36:25Z")
> [@etv78](#): > > But isn’t it easier/better to hold the doctor responsible because, you know, “the buck stops here.” Easier, yes. Better, no, because it doesn’t correct the underlying problem, thus insuring that other patients will be hurt by the same process failure in the future. ---
**Author:** ![etv78](https://avatars.discourse-cdn.com/v4/letter/e/d78d45/32.png) [@etv78](https://boards.straightdope.com/u/etv78)\ **Post date:** [June 29, 2011, 9:48pm UTC](https://boards.straightdope.com/t/tort-reform/587174/53 "2011-06-29T21:48:12Z")
> [@artemis](#): > > Easier, yes. Better, no, because it doesn’t correct the underlying problem, thus insuring that other patients will be hurt by the same process failure in the future. If the doctor is continuing to screw up, why is he being allowed to practice medicine! :rolleyes: ---
**Author:** ![artemis](https://avatars.discourse-cdn.com/v4/letter/a/91b2a8/32.png) [@artemis](https://boards.straightdope.com/u/artemis)\ **Post date:** [June 29, 2011, 10:10pm UTC](https://boards.straightdope.com/t/tort-reform/587174/54 "2011-06-29T22:10:43Z")
> [@etv78](#): > > If the doctor is continuing to screw up, why is he being allowed to practice medicine! :rolleyes: Who says it’s the doctor who’s screwing up? Consider the example used earlier in this thread: infections occurring needlessly because of improper handwashing. If a patient dies from an iatrogenic infection, that’s a serious medical error, and one which can usually be prevented. But the infection could have resulted from ANY of the patient’s numerous caregivers (doctors, nurses, respiratory therapists, physical therapists, students in training, etc.) not washing their hands before working with the patient. How does suing the doctor fix the faulty process? It doesn’t. Fixing the problem requires implementing a more effective handwashing protocol, but (as **Septimus’s** earlier post mentioned) the current tort system can perversely discourage that sort of innovation. ---
**Author:** ![etv78](https://avatars.discourse-cdn.com/v4/letter/e/d78d45/32.png) [@etv78](https://boards.straightdope.com/u/etv78)\ **Post date:** [June 29, 2011, 10:30pm UTC](https://boards.straightdope.com/t/tort-reform/587174/55 "2011-06-29T22:30:06Z")
So a lawsuit will get the medical field to wash their hands? Seriously! ---
**Author:** ![artemis](https://avatars.discourse-cdn.com/v4/letter/a/91b2a8/32.png) [@artemis](https://boards.straightdope.com/u/artemis)\ **Post date:** [June 29, 2011, 10:45pm UTC](https://boards.straightdope.com/t/tort-reform/587174/56 "2011-06-29T22:45:57Z")
> [@etv78](#): > > So a lawsuit will get the medical field to wash their hands? Seriously! No, it won’t. That was my point. Malpractice litigation is about punishment, not process improvement. And process improvement is what is needed to reduce most medical errors. To the degree that the possibility of punishment reduces open discussion of errors and how to prevent them, the tort system perversely increases the probability that correctable process problems will go unfixed - at the cost of patients’ health. ---
**Author:** ![Procrustus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/procrustus/32/2994_2.png) [@Procrustus](https://boards.straightdope.com/u/Procrustus)\ **Post date:** [June 29, 2011, 10:56pm UTC](https://boards.straightdope.com/t/tort-reform/587174/57 "2011-06-29T22:56:48Z")
> [@artemis](#): > > No, it won’t. That was my point. Malpractice litigation is about punishment, not process improvement. And process improvement is what is needed to reduce most medical errors. To the degree that the possibility of punishment reduces open discussion of errors and how to prevent them, the tort system perversely increases the probability that correctable process problems will go unfixed - at the cost of patients’ health. That’s exactly backwards. In every respect. Doctors and hospitals have achieved legislation that protects all discussions about errors and how to prevent them from disclosure in a med mal lawsuit. That’s probably a good idea. The tort system is vital in protecting patients’ health (and consumers’ safety, and a host of other good things). ---
**Author:** ![Princhester](https://avatars.discourse-cdn.com/v4/letter/p/3e96dc/32.png) [@Princhester](https://boards.straightdope.com/u/Princhester)\ **Post date:** [June 29, 2011, 11:39pm UTC](https://boards.straightdope.com/t/tort-reform/587174/58 "2011-06-29T23:39:08Z")
> [@Peter\_Morris](#): > > I once saw a dramatic presentation (I think it was L.A. Law) where a tobacco company was willing to spend $5 million to fight a $4 million lawsuit. The reason - if they allowed the lawsuit to win, it would set a precedent, there would then be 10,000 other plaintiffs suing them who would have a much easier case based on the precedent. > > You’re a lawyer, aren’t you? So’s Princhester. Can you tell me if that is realistic, or just made up? It’s realistic, but a limited scenario. Most cases are more or less one offs, concerning factual scenarios that don’t occur with sufficient regularity as to make them important precedent. I guess the thing with smoking is that it is a habit with a very standard factual matrix conducted by millions of people, so a decision that tobacco companies are liable to one person in one factual setup and outcome is likely to be closely comparable to millions of others who had the same factual setup and outcome. > [@Procrustus](#): > > This has not been the case in the US for quite some time. There is a huge bias against the plaintiff in a civil case, partially as a result of 20 or more years of insurance industry propaganda. Ironically, the anti-big business bias you describe still applies, probably more than ever, against insurance companies. Jurors are perfectly willing to accept an insurance company screws people over and does everything it can to avoid paying legitimate claims. You are saying that the standard of what constitutes negligence in the US has got higher? The point you make about jurors and insurance companies seems to belie your first point. Most claims are insured. You are saying jurors have a bias against insurers, but don’t have a bias when deciding claims that are likely to be insured? Colour me doubtful. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 29, 2011, 11:50pm UTC](https://boards.straightdope.com/t/tort-reform/587174/59 "2011-06-29T23:50:44Z")
> [@gonzomax](#): > > Part of the problem is that doctors are able to keep trial results from the pubic. You can not find the bad doctors . The medical profession covers them up. The justice system allows them to have undisclosed trial results. You can win a case against a doctor ,but are not allowed to tell about it. Absolutely untrue. As villa points out, while a settlement may include a gag order, a trial does not. I suppose there’s a one-in-a-thousand possibility of a counter-example, but the gigantic majority of trial results are public record. I have never heard of even one medical malpractice trial that concluded with a permanant gag order. ---
**Author:** ![ralph124c](https://avatars.discourse-cdn.com/v4/letter/r/8797f3/32.png) [@ralph124c](https://boards.straightdope.com/u/ralph124c)\ **Post date:** [June 30, 2011, 12:19am UTC](https://boards.straightdope.com/t/tort-reform/587174/60 "2011-06-30T00:19:51Z")
Yep…medical malpractice lawsits and malpractice insurance have NO effect on the cost of medical care. I guess that’s why my doctor has tripled his rates in the last five years (he does it because he feels like it). Yeah, right. Like I believe anything the ABA spots!:smack: [Previous page](https://boards.straightdope.com/t/tort-reform/587174.md?page=2) [Next page](https://boards.straightdope.com/t/tort-reform/587174.md?page=4)