Not at all. Sometimes patients don’t respond to therapy for reasons we don’t understand, sometimes complications happen despite every effort being made to prevent them from occurring. The mistaken idea that every bad outcome MUST be the result of a mistake is one of the reasons the practice of defensive medicine (which raises the cost of medical care) is going to be hard to curtail.
How would it prevent future claims? The cost to file a boilerplate set of allegations is tiny compared to the need to file answer and prepare even minimal discovery necessary to support a Rule 56 motion.
Because contingent lawyers are brutal in their calculations of time and input required. If there is no merit to the claim, it won’t get filed, unless the lawyer sees a possibility of a settlement at minimal expense.
Even if you account for defensive medicine, the entire medical liability system accounts for 2.4% of health care spending.
This is a huge problem. When every company offering a service has the same mandatory arbitration clause in its contract, consumers don’t have much of a choice (unless they’re willing to go without the service entirely). And there’s no way for them to know whether or not the arbitrator is truly going to be a neutral party in a dispute.
I don’t know about where you are, but here the problem isn’t frivolous cases, it’s dubious cases. Frivolous cases are rare, but cases that are just barely arguable are common. And the lower limit of what is barely arguable gets lower and lower all the time.
The basic equation faced by judges (juries in the US I think) is this: big company with deep pockets on one side vs person who has been hurt and suffered signficant loss on the other. The nature of “negligence” is inherently subjective. The bias is always in favour of helping out the hurt person. The bias is always against the big company, because of the general failure of imagination that occurs in relation to big companies (see below). So when the subjective decision on what is “negligent” is made, it is biased a particular direction. Over the years, the norm has changed and will continue to do so. What would have been regarded as “your own damn fault” fifty years ago is regarded as “the company’s fault for not protecting you from yourself” today.
Insurances companies pay out on dubious claims not because of short termism but because they find that the cards are stacked against them sufficiently to make it not worth the risk of fighting any case that has any chance at all of succeeding.
It’s always easy to play the “big company” card. They’re big, the incremental effect on them of any given judgment is small and people just look at that small picture and are happy to make the big company dole out the money. But in the end insurance companies are just aggregators of claims, paid out from premiums and investment of premiums gathered from us all.
If the system is to be that people who get hurt get paid out, then so be it. But the present system pretends its about “negligence” when really it isn’t. There is a gigantic waste of resources in arguing about it, but it is an intellectually dishonest system.
Plaintiff lawyers who are against tort reform will talk up nasty cases where terrible things have been done by big bad defendants to poor innocent little plaintiffs. It’s an easy sell because most people’s knowledge of injury cases comes from movies and TV and the news, which only mention the high profile interesting stuff.
What plaintiff lawyers don’t say is that their bread and butter is much more workaday cases, often involving far, far more mundane factual situations which nonetheless are routinely considered to involve negligence by the defendant due to slow erosion of the meaning of the word.
Princhester-Are you seriously arguing that companies, just because they are big, should be allowed to screw people over? If so, I’m glad society completely and utterly disagrees with you, and shuns people who do.
Well, yes. The director used to be a plaintiff’s medical-malpractice lawyer. 
Caps on punitive damages I could understand, but caps on compensatory damages have indeed always seemed extremely unfair to me, for the reasons you cite.
That was Halliburton’s argument, but the court rejected it in part. Her claims for assault and battery; intentional infliction of emotional distress; negligent hiring, retention, and supervision of the employees involved; and false imprisonment were found to be outside the scope of the arbitration agreement, and those claims were allowed to go to trial. Coincidentally, that trial started in mid-June in Houston. However, her claims for sexual harassment and hostile work environment under Title VII; retaliation; breach of contract; fraud in the inducement to enter the employment contract were found to be arbitrable, and I’m not sure that there’s any public information on whether any such arbitration went forward.
FWIW, here’s a rebuttal on the arbitration issue from some business-side lawyers. They’re not unbiased sources either, but a couple of the numbers they present do add some perspective. Granting that in 95% of cases the arbitrator ruled for the business, it may be worth noting that in 85% of the cases, the consumer had defaulted, i.e., filed no papers in response to the business’s claim. In civil litigation, the comparable rate appears to be 80%. So whether in arbitration or in traditional litigation, the vast majority of cases are ones where the consumer is automatically going to lose anyway. The rebuttal I linked also notes that in 22% of the arbitration cases where the consumer lost on default, the arbitrator did not award the business the full amount of its claim.
Finally, if memory serves, the 95% figure came from an analysis of arbitrations of credit card disputes. The numbers for employment disputes may be different, if only because the rate of defaults by the individual is likely to be lower.
Note that the judge profiled, Oliver Diaz, actually won the 2002 election where the Chamber was spending to unseat him, in part because he raised a similar amount of money from plaintiffs’ lawyers who supported him. So it’s not like the money in judicial elections is only flowing on one side.
Did you read my post? It’s not obvious that you did, I must say.
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?
There is currently only one recourse for patients if they don’t like the actions their doctor take or the outcome of those doctor’s actions. Sue them. There is no government agency to turn to, no medical malpractice board to investigate wrong doing. If I hire a carpenter, for example, to do some work for me and he does a poor job I have a number of recourses: Don’t pay him is a good one. Carpenters even have legal regulations on the work they do and inspectors who double check their work. Not so doctors. You don’t like the job they do? Too bad for you. Your choices are 1) Suck it up and pay your outrageous bills or 2) Sue.
The business of medicine would love nothing more than to stop this last recourse for patients, then doctors could just do whatever they want , any time and their paying customers would just have to live with it. I don’t think any other business in America has such huge revenue with so little oversight (except maybe the oil industry.)
Not true. Patients can file a complaint with their state medical licensing board.
And following your nonpayment he in turn can place a mechanic’s lien on your house. Settling a dispute with a contractor isn’t all that simple, and often disputes over the quality of construction work end up in the same place as disputes over the quality of medical care received: in court.
As do physicians. Medicine is a highly regulated field.
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.
I represented clients in multiple cases where it may have been economically prudent to settle were it a one shot deal. Generally speaking, a settlement isn’t precedent, but it may make a company a “mark.”
It’s like a repeated Prisoner’s Dilemma game. Gaining a reputation as being a repeat “cooperator” encourages others to not cooperate. Sears, I believe, would pursue all defaulted credit accounts regardless of size in order to prevent people seeking to game the situation.
Yeah, I did this once. They even have a handy website here in Virginia. The first step they take is to forward your complaint to the physician in question along with all the information they have on you. In this case, the physician’s response was to turn all my bills over to a collection attorney who immediately filed suit. I got the papers from the attorney before I ever heard from the state medical licensing board. In my experience this system is not designed with consumer protection in mind, it is designed to control and contain complaints.
This is true, and the medical industry would like to stop people from having that last option. I won’t even go into the differences medical bills vs other types of services except to say that I am always required to sign an agreement to pay in full before I am allowed to get medical care. One urgent care place I went to requires patients to sign agreements to arbitrate disputes. Who would be foolish enough to do that with a carpenter? Only someone in a life or death woodworking situation.
In what way? Really, I’m serious. Certain parts are well regulated I’m sure, like the distribution of drugs, but if I think my surgery was botched who do I call? I once had a surgery that, in the doctor’s words, “didn’t take.” Really? His bill was exactly the same as if it had taken. Is there someone I can call who would look into whether the job was done correctly? Because I was unconscious at the time.
Well, I no longer practice any law, and when I did, it was criminal defense work, so my expertise here is not stellar.
But there’s “precedent” and there’s precedent. A settlement of a single case is not the same as a lawsuit winning. And a single lawsuit win does not establish legal precedent… but both a willingness to settle and a single loss at trial create a reputation of sorts. Think of it as blood in the water when sharks are around.
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.
Covering up is part of the medical system. If a doctor screws up it is difficult to find a doctor who will testify against another one.
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.
Hospitals must maintain Joint Commission accreditation if they wish to receive payment from government agencies such as Medicare (and most private insurance companies, for that matter). That requires passing regular inspections, and running a quality improvement program. The laboratory within the hospital must possess a CLIA certificate or it cannot legally operate. That means the lab must undergo a separate annual CLIA inspection (and the exact date of that inspection is always a secret). The blood bank is also regulated by the FDA, which carries out random surprise inspections as well.
Physicians can’t just go work at any hospital they choose; they have to apply for staff privileges at that hospital. As part of the process, the hospital will review the physician’s past record before granting privileges. They also generally require the physician to be board certified in his field of practice. These days, maintaining board certification means having to retake and pass a tough examination at least every ten years. Some fields require more frequent testing (it varies by specialty).
All physicians are required to obtain a certain amount of continuing medical education as a requirement for their license renewal (and medical licenses are only good for two years in most states). If they can’t document that they’ve met the CME requirements, their license won’t be renewed. Their practice history and criminal record is also reviewed by the state medical board as part of the license renewal process.
So yes, medicine is a highly regulated field.
You call another surgeon (ideally in the same sub-specialty field, but in a different practice, preferably in another town, or even another state). Just as it takes construction knowledge to evaluate a contractor’s work, it takes medical knowledge to evaluate medical work. How do you think malpractice attorneys evaluate possible cases? They’re not using a crystal ball, they’re consulting other individuals with expertise in the area of medicine in question.
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.