# 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:** 4
**Author:** ![artemis](https://avatars.discourse-cdn.com/v4/letter/a/91b2a8/32.png) [@artemis](https://boards.straightdope.com/u/artemis)\ **Post date:** [June 30, 2011, 1:48am UTC](https://boards.straightdope.com/t/tort-reform/587174/61 "2011-06-30T01:48:59Z")
> [@Procrustus](#): > > 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). Nope, not backwards at all. As you yourself just noted, specific legislation making discussion of errors in certain contexts (the weekly Mortality and Morbdity conference, for example) nondiscoverable had to be passed in order to allow such discussions about error prevention to go forward. Without that legislation, no one would dare do it (even though it ultimately benefits patient care), because open admission of errors posed too much of a legal risk. ---
**Author:** ![artemis](https://avatars.discourse-cdn.com/v4/letter/a/91b2a8/32.png) [@artemis](https://boards.straightdope.com/u/artemis)\ **Post date:** [June 30, 2011, 1:52am UTC](https://boards.straightdope.com/t/tort-reform/587174/62 "2011-06-30T01:52:14Z")
> [@Bricker](#): > > 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. I suspect what’s confusing some of the people in this thread is that they’re confusing an out-of-court settlement with a trial victory (since both may result in a patient receiving money). ---
**Author:** ![brickbacon](https://avatars.discourse-cdn.com/v4/letter/b/898d66/32.png) [@brickbacon](https://boards.straightdope.com/u/brickbacon)\ **Post date:** [June 30, 2011, 2:39am UTC](https://boards.straightdope.com/t/tort-reform/587174/63 "2011-06-30T02:39:01Z")
> [@septimus](#): > > 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.) I believe you are referring to the checklist suggestions made by Atul Gawande. However, I don’t recall ever reading that hospitals ever fears increased outcomes would result in litigation. Do you have a cite for that? ---
**Author:** ![gonzomax](https://avatars.discourse-cdn.com/v4/letter/g/e8c25b/32.png) [@gonzomax](https://boards.straightdope.com/u/gonzomax)\ **Post date:** [June 30, 2011, 2:59am UTC](https://boards.straightdope.com/t/tort-reform/587174/64 "2011-06-30T02:59:04Z")
> **[Connecticut Hospital Mistakes Withheld from Public - AboutLawsuits.com](https://www.aboutlawsuits.com/connecticut-hospital-mistakes-withheld-7005/)** > > Thousands of severe injuries and deaths caused by preventable hospital mistakes in Connecticut have been withheld from the public following revisions to a Perhaps state by state. But malpractice results are not always available. ---
**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 30, 2011, 6:04am UTC](https://boards.straightdope.com/t/tort-reform/587174/65 "2011-06-30T06:04:40Z")
> [@brickbacon](#): > > However, I don’t recall ever reading that hospitals ever fears increased outcomes would result in litigation. Do you have a cite for that? Sorry, no can do. :mad: My Googling skills are poor; I may have partially conflated different hand-washing and clothes-changing articles; I’ve no idea where I read the claim. I may have misphrased the claim, but I didn’t just make it up. I did try Googling just now, clicking on a few N.Y. Times links but the result was “Your month’s allotment of 20 free articles are up.” :smack: Oh well … Tomorrow is another day! ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 30, 2011, 12:41pm UTC](https://boards.straightdope.com/t/tort-reform/587174/66 "2011-06-30T12:41:54Z")
**gonzomax** , you said: > [@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. **Villa** and I both responded: > [@villa](#): > > No, if you settle a case with a doctor, or anyone else, you MAY not be able to discuss it, if that is part of the settlement. If you win the case, I’ve never heard of a judge putting a gag order on discussion of it. > [@Bricker](#): > > 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. Your rebuttal is this cite: > [@gonzomax](#): > > [Connecticut Hospital Mistakes Withheld from Public - AboutLawsuits.com](http://www.aboutlawsuits.com/connecticut-hospital-mistakes-withheld-7005/) > Perhaps state by state. But malpractice results are not always available. This is an article about hospitals disclosing (or failing to disclose) problems that occur, and doesn’t say anything about trials. The word ‘trial’ or ‘trials’ doesn’t appear even once on the page. Again, for the benefit of anyone who might be confused by you: the overwhelmingly vast majority of trial results are public, and I suspect that there’s never been so much as a single medical malpractice trial with a sealed result. Settlements, as **artemis** correctly emphasizes, which are private agreements reached before a trial (or before its conclusion) can include an agreement to keep the terms secret, but never trials. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [June 30, 2011, 1:39pm UTC](https://boards.straightdope.com/t/tort-reform/587174/67 "2011-06-30T13:39:45Z")
> [@villa](#): > > Insurance companies can stop frivolous suits easily… by fighting them. Contingent lawyers won’t bring frivolous suits if they are going to be a money loser. Short-termism on the part of the insurance companies, though, ignores this and calculates settling is more important for this years balance sheet. Which just means the claims continue. > > There’s no need to undermine hundreds of years of tort law to protect insurance companies. Damn. We finally agree on something. 🙂 Yes, it makes short term sense to settle and it also takes out some of the uncertainty, but if they take it to the mat and make these Plaintiffs put in a full case work on a contingency, you will see the number of filings drop dramatically. Ambulance chasers err, Plaintiff’s attorneys aren’t going to do that for frivilous cases. ---
**Author:** ![Great\_Antibob](https://avatars.discourse-cdn.com/v4/letter/g/e47c2d/32.png) [@Great\_Antibob](https://boards.straightdope.com/u/Great_Antibob)\ **Post date:** [June 30, 2011, 3:11pm UTC](https://boards.straightdope.com/t/tort-reform/587174/68 "2011-06-30T15:11:19Z")
> [@ralph124c](#): > > 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: Well, Texas is a pretty good counter-example to your claim. We’ve got some of the most aggressive tort reform lobbyists and passed a big tort reform bill a few years back. And it’s done SOME of what it was intended to do. Lawsuits are down. But that’s NOT reflected in malpractice insurance rates. Costs are still rising. So, while malpractice insurance certainly affects cost, apparently malpractice lawsuits don’t have a linear correlation to malpractice insurance costs. Basically, malpractice insurance companies are filled a bunch of greedy SOBs blaming malpractice lawsuits for rising rates, even when there’s contradictory evidence for it. But greedy insurance companies comes as no surprise to anybody. There’s still a push for even more tort reform in Texas, but it’s mostly from the extreme fringe lunatics (and malpractice insurance companies), with little chance of a bill seeing daylight (which says a lot, if further tort reform has little support in Texas). We’ve mostly figured out that tort reform went a bit too far the last time. ---
**Author:** ![artemis](https://avatars.discourse-cdn.com/v4/letter/a/91b2a8/32.png) [@artemis](https://boards.straightdope.com/u/artemis)\ **Post date:** [June 30, 2011, 3:24pm UTC](https://boards.straightdope.com/t/tort-reform/587174/69 "2011-06-30T15:24:42Z")
> [@Great\_Antibob](#): > > Well, Texas is a pretty good counter-example to your claim. We’ve got some of the most aggressive tort reform lobbyists and passed a big tort reform bill a few years back. > > And it’s done SOME of what it was intended to do. Lawsuits are down. But that’s NOT reflected in malpractice insurance rates. Costs are still rising. So, while malpractice insurance certainly affects cost, apparently malpractice lawsuits don’t have a linear correlation to malpractice insurance costs. Bet it does correlate pretty linearly with the performance of the stock market, though. Rates have as much to do with how the insurance companies’ long-term capital investments are playing out as they do with the number and size of payouts. Somehow, though, that little fact never gets mention when the subject of tort reform is brought up. > [@Great\_Antibob](#): > > There’s still a push for even more tort reform in Texas, but it’s mostly from the extreme fringe lunatics (and malpractice insurance companies), with little chance of a bill seeing daylight (which says a lot, if further tort reform has little support in Texas). Good! Personally, I’m opposed to mandatory arbitration agreements (although I have no problem with the idea of people voluntarily trying arbitration before considering a lawsuit), and when it comes to malpractice torts, I only favor caps on pain and suffering awards, which are totally subjective - no capping of compensatory awards, which can be calculated reasonably fairly, or on punitive damages (which are typically only issued in cases of absolutely blatant wrongdoing, where severe punishment is indeed merited). ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [June 30, 2011, 4:20pm UTC](https://boards.straightdope.com/t/tort-reform/587174/70 "2011-06-30T16:20:49Z")
> [@artemis](#): > > Good! Personally, I’m opposed to mandatory arbitration agreements (although I have no problem with the idea of people voluntarily trying arbitration before considering a lawsuit), and when it comes to malpractice torts, I only favor caps on pain and suffering awards, which are totally subjective - no capping of compensatory awards, which can be calculated reasonably fairly, or on punitive damages (which are typically only issued in cases of absolutely blatant wrongdoing, where severe punishment is indeed merited). I don’t mind mandatory arbitration between equivalent power parties. This tends to be the way it works in employment cases - courts have struck clauses requiring fast food workers to arbitrate sexual harassment claims, but upheld a requirement for a senior VP of an investment bank to arbitrate with his firm. As to malpractice torts, you do realize that pain and suffering awards ARE compensatory awards? I’d be open to a more formalized calculation method of them, but I don’t believe in a cap. I’d also consider abolishing remittitur, or at the very least if it is to continue in federal courts, allow additur as well… ---
**Author:** ![Great\_Antibob](https://avatars.discourse-cdn.com/v4/letter/g/e47c2d/32.png) [@Great\_Antibob](https://boards.straightdope.com/u/Great_Antibob)\ **Post date:** [June 30, 2011, 4:21pm UTC](https://boards.straightdope.com/t/tort-reform/587174/71 "2011-06-30T16:21:52Z")
> [@artemis](#): > > Bet it does correlate pretty linearly with the performance of the stock market, though. That might be the case, but that would only strengthen the argument that malpractice lawsuits are only loosely correlated with malpractice insurance rates (and hence end medical costs). I guess there are people out there that think malpractice accounts for a significant portion of medical costs, but I haven’t seen any data to that effect (even in this thread). ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [June 30, 2011, 4:22pm UTC](https://boards.straightdope.com/t/tort-reform/587174/72 "2011-06-30T16:22:20Z")
> [@jtgain](#): > > Damn. We finally agree on something. 🙂 I will be reexamining my position forthwith. ---
**Author:** ![MikeF](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@MikeF](https://boards.straightdope.com/u/MikeF)\ **Post date:** [June 30, 2011, 5:36pm UTC](https://boards.straightdope.com/t/tort-reform/587174/73 "2011-06-30T17:36:29Z")
Yes, trial lawyers as a category outspent USCC. But USCC is an entity, not a category. Granted, it does represent many client/contributors but there’s no need for USCC to disclose who they are. Dewey, Cheatem and How’s contributions must be disclosed if they exceed a certain amount ($5000?). The biggest single contributor in 2009 was American Association for Justice (a group like USCC) at $3.8 million. #2 through #20 are individuals or firms. And by the time you get down to #20 the number is about $600,000. USCC - $144 million. Again, I have no love for the idea of suing everyone and seeing what sticks. But to set caps on compensatory damages seems unfair to the injured. The idea of (supposedly) neutral arbitrators working for companies hired by the defendant doesn’t pass the smell test. Whether it judges or congressmen, on either side of an issue, its a damn shame that their votes are likely to be impacted more by who funded them than by what is “right”. I’ve always thought elected officials tend to look at their office as an end rather than a mean. Maybe not at first and maybe not all of them, but way too many. Power corrupts… ---
**Author:** ![artemis](https://avatars.discourse-cdn.com/v4/letter/a/91b2a8/32.png) [@artemis](https://boards.straightdope.com/u/artemis)\ **Post date:** [June 30, 2011, 9:36pm UTC](https://boards.straightdope.com/t/tort-reform/587174/74 "2011-06-30T21:36:41Z")
> [@villa](#): > > As to malpractice torts, you do realize that pain and suffering awards ARE compensatory awards? They’re not compensatory for anything objectively measurable (unlike such losses as increased medical expenses secondary to the injury, permanent reduction of wages due to having to change careers, etc.) ---
**Author:** ![JohnBckWLD](https://avatars.discourse-cdn.com/v4/letter/j/d6d6ee/32.png) [@JohnBckWLD](https://boards.straightdope.com/u/JohnBckWLD)\ **Post date:** [June 30, 2011, 10:40pm UTC](https://boards.straightdope.com/t/tort-reform/587174/75 "2011-06-30T22:40:06Z")
Dayton, Ohio: [Cops Beat Down a Handicapped Teenager Because They Misconstrued His Speech Impediment as Disrespecting an Officer](http://www.courthousenews.com/2011/06/29/37770.htm) To Hell with the tired, old, “I’m mad as hell / words can’t express / this is disgusting” RO-type pit thread a story like this most always garners. A handicapped teenager was on the receiving end of thuggery that no one could ever rationalize. Nothing anyone can post or do will change that fact or heal the victims wounds any quicker. But taking a step back from the emotional., what I’d like to know is, [regardless of whether or not a municipality is self-insured or carries coverage], why local taxpayers are on the financial hook for “damages from the city”? Whether you think the kid above deserves one or hundred million dollar settlement, it’s time people start demanding all government employees and their labor associations carry liability insurance at the individual level. Joe Shit the property owner didn’t have a hand in the hiring of said officers, did not participate in the brutality case, laid a hand on no one, had no idea foreknowledge the event occurred and should not be held financially accountable. Were the thugs, their supervisors, labor associations and the buffoons that hired them held financially accountable, actions similar to the ones above would be far less commonplace. As any rational person [with the exception of trial lawyers] will tell you, it’s better to prevent such injustices from occurring in the first place then it is to have to clean up the mess after the fact. ---
**Author:** ![Robb](https://avatars.discourse-cdn.com/v4/letter/r/a183cd/32.png) [@Robb](https://boards.straightdope.com/u/Robb)\ **Post date:** [July 1, 2011, 12:02am UTC](https://boards.straightdope.com/t/tort-reform/587174/76 "2011-07-01T00:02:23Z")
> [@JohnBckWLD](#): > > Dayton, Ohio: [Cops Beat Down a Handicapped Teenager Because They Misconstrued His Speech Impediment as Disrespecting an Officer](http://www.courthousenews.com/2011/06/29/37770.htm) > > To Hell with the tired, old, “I’m mad as hell / words can’t express / this is disgusting” RO-type pit thread a story like this most always garners. A handicapped teenager was on the receiving end of thuggery that no one could ever rationalize. Nothing anyone can post or do will change that fact or heal the victims wounds any quicker. But taking a step back from the emotional., what I’d like to know is, [regardless of whether or not a municipality is self-insured or carries coverage], why local taxpayers are on the financial hook for “damages from the city”? > > Whether you think the kid above deserves one or hundred million dollar settlement, it’s time people start demanding all government employees and their labor associations carry liability insurance at the individual level. Joe Shit the property owner didn’t have a hand in the hiring of said officers, did not participate in the brutality case, laid a hand on no one, had no idea foreknowledge the event occurred and should not be held financially accountable. > > Were the thugs, their supervisors, labor associations and the buffoons that hired them held financially accountable, actions similar to the ones above would be far less commonplace. As any rational person [with the exception of trial lawyers] will tell you, it’s better to prevent such injustices from occurring in the first place then it is to have to clean up the mess after the fact. Usually, a city is not liable for the intentional acts of its police officers. If the plaintiff can prove that the officers acted according to a policy or practice of the city, the city can be held liable. Taxpayers aren’t directly liable. Their city can become liable if it supports the its police officers in using excessive force. ---
**Author:** ![Peter\_Morris](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/peter_morris/32/359_2.png) [@Peter\_Morris](https://boards.straightdope.com/u/Peter_Morris)\ **Post date:** [July 1, 2011, 12:35am UTC](https://boards.straightdope.com/t/tort-reform/587174/77 "2011-07-01T00:35:18Z")
> [@Robb](#): > > Usually, a city is not liable for the intentional acts of its police officers. Cite? It’s my understanding that an employer usually IS responsible for acts of the employee. It’s called ‘vicarious liability.’ > **[Vicarious liability](https://en.wikipedia.org/wiki/Vicarious_liability)** > > Vicarious liability is a form of a strict, secondary liability that arises under the common law doctrine of agency, respondeat superior, the responsibility of the superior for the acts of their subordinate or, in a broader sense, the responsibility of any third party that had the "right, ability, or duty to control" the activities of a violator. It can be distinguished from contributory liability, another form of secondary liability, which is rooted in the tort theory of enterprise liability bec... ---
**Author:** ![Robb](https://avatars.discourse-cdn.com/v4/letter/r/a183cd/32.png) [@Robb](https://boards.straightdope.com/u/Robb)\ **Post date:** [July 1, 2011, 1:05am UTC](https://boards.straightdope.com/t/tort-reform/587174/78 "2011-07-01T01:05:03Z")
Peter, cities are part of the sovereign, which has sovereign immunity. It isn’t your usual employer. ---
**Author:** ![Robb](https://avatars.discourse-cdn.com/v4/letter/r/a183cd/32.png) [@Robb](https://boards.straightdope.com/u/Robb)\ **Post date:** [July 1, 2011, 1:27am UTC](https://boards.straightdope.com/t/tort-reform/587174/79 "2011-07-01T01:27:08Z")
This would be a good place to start looking that municipalities don’t follow normal rules for employers: On the other hand, the language of § 1983, read against the background of the same legislative history, compels the conclusion that Congress did not intend municipalities to be held liable unless action pursuant to official municipal policy of some nature caused a constitutional tort. In particular, we conclude that a municipality cannot be held liable solely because it employs a tortfeasor – or, in other words, a municipality cannot be held liable under § 1983 on a respondeat superior theory. [Monell v. Department of Soc. Svcs., 436 U.S. 658,691 (1978)](http://supreme.justia.com/us/436/658/case.html) ---
**Author:** ![Princhester](https://avatars.discourse-cdn.com/v4/letter/p/3e96dc/32.png) [@Princhester](https://boards.straightdope.com/u/Princhester)\ **Post date:** [July 1, 2011, 1:34am UTC](https://boards.straightdope.com/t/tort-reform/587174/80 "2011-07-01T01:34:08Z")
> [@JohnBckWLD](#): > > Whether you think the kid above deserves one or hundred million dollar settlement, it’s time people start demanding all government employees and their labor associations carry liability insurance at the individual level. The premiums for which would be paid by Joe Public as they would sooner or later end up being part of the employees’ remuneration package, either explicitly or by gradually becoming an implicit built-in in order to bring the net remuneration up to a market level after payment of premium. And even if not, many employees would just not take out the insurance, and employ asset protection strategies instead. This would result in them judgement proofing themselves. Which would result in plaintiffs attacking deep pocketed alternate defendants, using imaginative arguments about how the alternate defendant was somehow negligent. See my above post on the gradual expansion of the concept of negligence. Or the injured party would just not be able to get compensation from anyone so they’d go on welfare. You’re going to pay, one way or the other. That’s why I completely agree with you that the focus should be on preventing such injustices from occurring in the first place rather than having to clean up the mess after the fact. [Previous page](https://boards.straightdope.com/t/tort-reform/587174.md?page=3)