You are right…that one post doesn’t say much by itself. It’s a conclusion of a rather lengthy conversation. Maybe you should read the whole thread, so you can see some examples I and others gave of situations where more people may have been harmed than helped by tort cases.
I never was trying to claim that all tort lawsuits are inherently bad.
Sarafeena, don’t you see your blame is targetted at the wrong person(s) here?
Person A buys product from Company B
Product is made negligently
Person A gets sick
Lawyer C helps Person A to sue Company B
Company B closes factory and lays off Persons D through Z
In my mind, the fault here obviously lies with Company B. You seem to want to place it on either Lawyer C, or the tort system as a whole. Does Person A bear any of the burden of blame too?
Well, Jackmannii made some good points, & I agree that there are unintended consequences in the world. And I think, following on what mhendo said, that we need to subsume a lot of what are now civil tort cases into criminal law; so that investigation, compensation, & penalization can be managed & paid for by the state (& tax dollars), rather than the present situation where compensation for harm is dependent on the depth of the pockets of whoever harmed one.
But I don’t blame a plaintiff’s attorney for the brokenness of the system. That said, I would rather give Edwards a cabinet post than the Presidency (for which I think more qualified candidates would be Bill Richardson, Joe Biden, Richard Lugar [not running], or maybe someone like Madeleine Albright [who I really don’t think would run either]).
Sometimes.
Sometimes Person A is injured due to their own stupidity. It seems like there have been many cases where a person is using a ladder or tool in an unsafe matter and yet it ends up being the manufacturers fault.
Many car accidents results in far too many “loss of services” cases. It is hard to maintain respect for personnel injury lawyers overall as these cases ruin the name of the entire profession.
We have playgrounds afraid to put in equipment that would give a child a chance of getting hurt as the playground provider would be at fault somehow even if the equipment was basically safe. We have a system where if a pool owner fails to secure there pool and a neighborhood child trespasses and gets into the pool and gets hurt or drowns the homeowner is liable if there is anything wrong.
We take very little personal responsibility theses days and your friendly neighborhood Personal injury lawyer is standing by to make sure you don’t have to.
Jim
Company B is to blame, of course. AS LONG AS the product made by Company B is TRULY made negligently, and TRULY causes Person A to get sick. I am not convinced from what I have seen that this is always the case, and some lawyers do pursue verdicts, and get them, knowing full well that the evidence is shaky.
There is also the level of harm that is at issue here. If Person A gets sick and DIES, that is one thing. If Person A gets sick and recovers with no lasting effects, that is another thing.
My previous post says:
But I wouldn’t jump to claim that they are all inherently good, either.
I don’t think anyone here has claimed that malpractice awards are “generally excessive”.
The tone of your other statements suggests part of the problem with the current system. A bad outcome in a particular case might not be the fault of the physician following proper standards of care, but there are always going to be juries heavily influenced by an appeal for sympathy. This approach would be less likely to impress a hard-nosed professional arbitration panel.
Quoting again from the link I provided re arbitration in Mexico: "Arbitration is done by exhaustive evaluation by doctors and lawyers who specialise in medical arbitration, supported by an independent consultancy of professionals contracted for each case through peer review. What do you see in there that suggests that arbitration is a rubber stamp for the medical profession?
What Exit & Sarafeena
Yes. There are bogus suits out there. It seems your problem comes from those. And I would agree the system needs fine tuning to lessen those suits. They really are less common than most people think, I believe, because it is much better for the media to report “Woman gets $x million from furniture store for tripping over her own misbehaving child” than it is either to report the details of the case, or, more often, “Judge eliminates award to woman, said she should have looked where her damn kid was.”
I support moderate reform to remove some of the abuses. One thing would be greater use of Rule 11 sanctions on “frivolous” cases. Another would be judges being more willing to award attorneys’ fees in some egregious cases.
But the best way to stop these groundless suits is to fight them. If an insurance company has a settle first mentality, they make themselves an easy mark. Many of the ‘lawyers’ who exist off this form of protection money would run a mile if forced to back their claim up in court. And contingent lawyers don’t eat if they don’t win/get settlements.
Jackmannii
I don’t see how a panel of doctors (who have an interest in reducing overall liability for doctors) and attorneys (and I have little belief that the Plaintiff’s bar would be the source of these attorneys) and amorphous “independent” consultants will provide justice. A friend of mine at law school who served on a lot of arbitration panels said he was amazed at how anti-plaintiff they were.
And if an attorney cannot show at least a prima facie case of malpractice, he won’t get a chance to play on the jury’s heartstrings. That’s what the judge is there for.
I’m all for making the system work better - I know us attorneys have a habit of getting very defensive and refusing to acknowledge any faults in the way things work now. Who’d have thought that might happen when you get called a parasite for doing your job.
I don’t know much about medical care, but I do know about manufacturing. I’ve sat through many papers discussing offshoring, and none gave the tort system as a reason. Labor costs are enough to make this happen with no other stimuli.
In addition, a US company found to cause damage to a US resident will be sued in the US, no matter where the product was manufactured. I suspect Cheesesteak’s microwave was not manufactured in the US, for instance.
I actually do not want to get into a big back and forth on this, but I wonder if perceptions vary by region. NJ/NY are known for having a higher percentage of lawyers. I am not basing my judgments about PI lawyers on news reports. I am basing it on over half of the accidents my friends and family have been involved in that involved another car have resulted in frivolous lawsuits. I guess we all are just unlucky.
I have worked in a hospital that did its best to shovel and salt the sidewalks and every winter for 4 years running while I worked there someone ‘slipped’, had an ‘injury’ and sued the hospital. Thankfully the hospital actually fought several of these, but they were still out the extra legal fees.
The lawyer and tort defenders always seem out of step with my experiences.
Jim
Again, what do you know about Mexico (or any other arbitration/conciliation system currently in effect) that suggests that attorneys on an arbitration panel would be serving the physicians’ interests (I’m not sure what you mean by “plaintiff’s bar”)? And if you think that docs always look out for their fellow practitioners and never go after each other over patient care issues, you should see some of the types I deal with. 
Another point: There are cases that never make it to the lawsuit filing stage because plaintiffs cannot interest lawyers in them - due to costs of bringing a case if there is limited expectation of a big return, ease of proving the claims and so on. If you’re one of the “downtrodden” with a tough case that doesn’t necessarily promise a big payoff at the end, arbitration might be your only hope of a decent outcome.
I agree - name-calling doesn’t help matters.
They have infinite worth to me. If they are killed due to medical malpractice, all the money in the world should be given to me. That OK by you?
I’m being flippant here, but can you see the issue?
I think the awards for punitive damages in class action cases can be ridiculous in and of themselves but that the attorneys take especially needs to be capped. To quote from a John Grisham novel, “Mass tort litigation [is] not practicing law. It [is] a roguish form of entrepreneurship.”
Erin Brockovich is a good movie. Grisham-esque David v. Goliath tale, little people take the treasure of an evil giant who has been terrorizing them, and it’s “based on a true story”. The true story, however, seems a little less uplifting and a lot more complicated than the two hour “good guys and bad guys” film version.
There are numerous articles about “the real story” but I’ll link to this one from Salon.com for the facts and figures used here. (The article is actually less about tort reform than it is an indictment of private arbitration.)
One of the plaintiffs from the Brockovich case had to have 17 tumors removed from his throat, purportedly as a result of the contaminated water. He received $80,000 from the $330 million verdict. A plaintiff whose main grievance was skin irritation that may or may not have been caused by PG&E received more 2 ½ times that amount. The largest single awards went to a man who lost a part of his colon and a woman who’s young daughter died, both purportedly due to PG&E’s wrongdoing; they received $2 million apiece. If it is the case, as ruled, that PG&E’s contamination of the water supply caused the damages then I think the $2 million was very fair if not conservative in punitive damages and that the $80,000 was a gross underpayment.
Now let’s assume that Masry’s firm/Brockovich’s employer had 6 full-time lawyers working exclusively on the PG&E case (which they didn’t), that said lawyers billed at $400 per hour (which they didn’t), and let’s assume that anything over 40 hours is 1.5x overtime (which it isn’t), and that they only took 2 weeks off per year. Then let’s assume that each lawyer had two paralegals working exclusively on the PG&E case (which they didn’t) and earning $50,000 per year apiece. Then let’s take that final figure and double it to bitchslap evil PG&E and reward the white hat wearing law firm.
6 lawyers x $400/hour x 2000 hours = $4,800,000 x 3 years =$14.4 million x 2 = $28.8 million
6 lawyers x $600/hour x 1000 hours = $3,600,000 x 3 years = $10.8 million x 2 = $21.6 million
12 paralegals x $50,000/year= $600,000 per year x 3 years= $1.8 million x 2 = $3.6 million
The total comes to $54 million, to which add $10 million for the as yet un-itemized “expenses” that the real law firm charged. Keep in mind that this is GROSSLY overinflated compensation, and you’re not even HALFWAY to the actual amount the firm received. You’re about to what Ed Masry, a partner in the firm, received by himself. The firm was paid $130 million+ for that one settlement (that’s what the firm received, not the plaintiffs) and then billed the additional $10 million in expenses that they refused repeated requests to itemize. Meanwhile a man who’s had his throat operated on 17 times receives $80,000 as Masry has entered the land of swimmin’ pools, movie stars and private islands and private Lear jets continually ready for takeoff.
The highest paid lawyer in the United States in terms of billing is Benjamin Civiletti. He earns $1,000 per hour. I say “Yea and bravo for Benjamin Civiletti!” He’s reached a stage of his career where he’s earning almost as much as Sylvia Browne. I envy his wealth but not his schedule or stress that justify it, and I do not begrudge it. Assuming bills $1k per hour and works 80 hours per week and takes 2 weeks of vacation per year that’s $4 million. That’s a single digit fraction of Masry’s take from the PG&E case.
To be cont’d
Now consider the Vioxx case. In the first successful case the jury awarded $254 million to the widow of a man who died of a heart attack allegedly brought about the inflammatory. (The verdict was reduced to $26 million by the state of Texas due to state imposed limitations.) Another early Vioxx settlement awarded a seven figure settlement to the widow of a 71 year old smoker who’d suffered two previous heart attacks before taking Vioxx! To date Merck has paid more than $1 billion in claims for Vioxx.
Now, Vioxx passed FDA approval before ever appearing on the market. It had extremely negative side effects for a small minority fo takers.
ALL medications and drugs have negative side effects for some takers. Aspirin is fatal to some people who have Reye’s Syndrome or specific other conditions or allergies. All surgery carries a risk of death; people have died from routine procedures. Now, I’m not qualified to say how much of a probability it was that the people in the lawsuits against Merck died solely due to their use of Vioxx because I don’t have the background in chemistry, medicine, physiology, etc., to understand a very complicated matter, but I’m probably just as qualified as the jurors and judges in these cases.
As with PG&E, people who have demonstrated serious side effects since using Vioxx have received pennies on the dollar to what the law firms, who’ve had no harm, received. Again, Vioxx passed FDA approval twice and gave warnings when it was proven that there were side effects in a minority of users. (To some users it brought incredible relief.) The drug company certainly did not conspire to release a product that caused heart attacks.
The widow who was the plaintiff in the first case ultimately received about $15 million after the $26 million verdict was settled, the rest going to attorney’s fees and expenses. Her husband is still dead. The $26 million did not bring him back. Far more attorneys have become millionaires from Vioxx than plaintiffs and the lawsuits are still ongoing.
The comments about how capping damages is the same as saying “companies must not be punished for their wrongdoing” is willfully blind. Companies should be punished “ACCORDINGLY” and “PROPORTIONATELY” to how much damage was done. Merck should have to provide warnings; they should have to provide for the medical care of people who were injured by their FDA approved/laboratory tested product. Yes, Merck, even with the billion dollar payout, has still earned billions from Vioxx, but that’s because it’s a great product that has worked fantastically for many if not most users.
There are other drugs that are not as profitable. There are drugs that have been developed and found to work wonders in clinical trials that have never been released because the pharmaceutical companies cannot afford to take the risk of being sued. The profit margin is not enough to guard against at nine-figure verdict and so people suffer when a drug that would probably help them is available. That is one very real way that ridiculous verdicts hurt.
Another is this: even for a gazillion dollar giant like Merck, the billion dollars does not come from a mayonaisse jar. Merck’s stock dipped radically initially after the verdict. Merck’s stock is owned by Donald Trumps and the like who can afford that dip, but it’s also owned by mutural fund companies, state and corporate retirement funds and the likes whose investers cannot afford to take that hit. Their insurance company which had to pay nine figures of their losses have to regenerate that money by raising premiums and by liquidating stocks or letting go of less lucrative investments- there is a ripple effect of such a judgment.
The lawyers like Edwards don’t care about the Ripple effect. They are wildcatters. Their goal and their interest is to be rich enough that they don’t have to worry about a plant closing or layoffs from their actions. I doubt any have lost sleep from such matters.
Somebody made a comments in this or the Edwards thread about the jackpot justice payouts rewarding lawyers for pro-bono work or for taking cases where they lose. That’s BS. If BIG EVIL COMPANY X is guilty as sin it’s STILL not their responsibility to subsidize a law firm’s plaintiffs in another case. It’s a very real possibility that the other case failed because there was no merit to it or because the attorneys gave poor representation- why should they be rewarded for this? As for pro-bono work, if that’s the case then perhaps Merck should have been ordered to pay $10 million to fund financially independent salaried “street lawyers”.
Must run- will conclude later
What is the problem with this? It’s not really about the plaintiffs, it is about discouraging the corporation from doing what they did again.
You can bet that PG&E hated giving $130 million to rich, greedy lawyers. You can bet that PG&E’s customers and lower level employees hated having to make up for that payment. So you can bet that they will never do that again.
Besides, it would be a crime against the free market to limit lawyer fees. The law business is just like any other business. The point is for it to grow and make more money. Any lawyer will admit that they only care about getting the maximum amount of money from whoever they can, and the harm or benefit of the system is irrelevant to them. We should all be praising the law business for successfully growing and taking money from more people, rather than lamenting the fact that a business is more concerned about making profit than doing good (gasp!). And if the law business ever gets too corrupt, as other businesses sometimes do, then we can just remedy it as we would against any other business.
I would not disagree with this statement. I would expand it however to to say that there is a serious problem with our system of trying to deal with the problems. A simple way to look at the claim that the tort system makes for a higher quality of care: America is, I believe, the most litigious society around. If lawsuits made doctors better then we should not be having the problems that you cite. Yet we continue to have problems and meanwhile our tort approach “whatever its possible advantages, costs more than 10 times as much as it pays out to the injured”, leaves most cases of negligence unaddressed and unrecompensed while often bringing cases of little or no merit to trial and to settlement.
I of course have issue on your perspective of how many mistakes are due to bad docs. It is my belief that mistakes must be taken as a given in any system that includes humans making judgements. Even that which seems most straightforwardly a case of “bad doc” on first blush really is more likely a case for a systems improvement. Wrong person wrong limb? Often not a bad doc but a system that failed to adequately communicate and to verify basic information. Sponge left inside? That is a system failure on the sponge count.
If the goal is to improve patient safety then the tort system is a poor approach. It is expensive and ineffective. Only a small potion of its cost gets to those who have been harmed and most harmed by mistakes never see any money. OTOH some to many (depending on which data you accept) of those who get compensated had harm not caused by negligence. Other models have been proposed. Jackmani discusses one type. Another is to have a list of “never” events, such as wrong site surgery, which trigger automatic compensation and system analysis.
Evaluating conflicting data sets is part of what we must always do in any controversial area. I appreciate your willingness to look at the data that I’ve brought to the table.
Ah here is an example of how to reconcile conflicting bits of data. None of what your present is completely inconsistent with the data that I bring to the debate. Sure, suits settling for over a million are likley to be settled for good reason. But suits settled for less are documentably settled more on the basis of outcome than on evidence of negligence. Still I do not know how to reconcile some of the conflicting data. To me however, even if the unjustified jackpot awards are few and far between, they have a chilling effect on those of us accused of malpractice who know that we did nothing wrong but know that there is a real chance of an unjust absurd verdict destroying out family’s financial future if we fight it.
More than most. Almost all. The model (which Edwards promotes btw) of the evil-doer md who must be punished, is based on an incorrect impression of how most mistakes occur.
Personally I think that guidance for the amount that can/should be awarded for pain and suffering (above and beyond an amount awarded for economic damages and perhaps even for punishement for particularly grevious conduct) is appropriate for the entire system. Otherwise we end up with the untenable consruct of a “sympathetic victim” having their suffering worth much more than someone with whom a jury fails to identify. Each jury is given the task of deciding how much something priceless is worth. This is a poor idea for any type of case.
Oh I completely understand what you mean. Bu tI don’t think that giving a parent $2 million when their child, because of medical malpractice, is going to need round the clock care for the rest of his or her (reduced) lifespan is by any definition of the word “excessive.” And yet $2 million has been bandied around in some states as a cap on damages.
Sampiro - to be honest, I find some of the legal fees in class settlements ridiculous, especially when they come at the expense of the class. And you are seeing judges getting on board and rejecting settlements that don’t benefit the class members whatsoever.
But sometimes these bumper payouts can be justified, to the lawyers as well. It isn’t as simple as saying calculate up the number of hours worked and multiply it by the standard rate. Contingency lawyers take on many cases, and get paid on a few. Those who sued tobacco went years without any pay back on the investment of time and energy (and while I think some of the tobacco suits were wrongly decided, I also think the behavior of big tobacco was abhorrent for many decades). So to encourage good lawyers to become plaintiff’s attorneys, you need the possibiity of sometimes being paid more than the “regular” hourly rate, to make up for the times they go home empty handed.
Jackmannii - you’re right. I don’t have specific information on the Mexican arbitration system. I was basing my comments more generally on information from friends who have worked in similar structures. And I totally agree - arbitration is not always a bad thing. In fact it is very often a good thing, for the reasons you suggest.
And, nitetime, I guess I am not going to hear what job you do after you called me and others here parasites for doing our jobs.
If most of the mistakes are systemic in nature, one would expect a more-or-less normal distribution in terms of malpractice payouts/doctor. But that turns out not to be the case
That certainly sounds like a case of bad doctors, rather than system failures.
I am willing to believe that this is because certain areas (e.g. OBGYN) are hit much harder than others by malpractice suits, and hence those doctors have elevated totals. But I would like to see some evidence that that is what accounts for a few doctors’ being responsible for the majority of suits.
I’m going to chip in with a few comments on the comparative law side, from the Great White North. And in the interests of full disclosure, I mention that I’m a lawyer, but not a tort litigator. I’ve never even thought about chasing an ambulance, honest!
Some of the posters upstream (I’m too lazy to hunt out the exact posts) suggested that the US tort system contributes to the high costs of health care in the US. I would suggest that it’s the other way around - that it’s the high cost of health care in the US (or rather, the system of private payment for health care) that contributes to the growth of personal injury litigation in the US.
The high cost of healh care isn’t restricted to the US - every industrialised county is grappling with this issue. What makes the US unique is that paying for health care is considered a private responsibilty, to be shouldered by the individual and the employer, rather than the public at large, the way roads and schools are considered public services.
That in turn means that if someone of modest means is injured, and not covered by insurance or under-insured, they will naturally try to find someone else to help cover the costs - and one way to do that is by litigation, including litigation aimed at the medical profession. You might think that’s wrong, that it shouldn’t be allowed, that it’s contrary to the principles of rugged individualism and personal responsiblity, and so on - but if it were your child who needed the expensive medical treatment, what would you do?
So there is a strong economic incentive to rely on the civil litigation system to ensure individuals have some sort of coverage for health care costs associated with injuries. And that may well contribute to the possiblity, suggested by one of the other posters, that juries are compensating for harm suffered by the plaintiff, not for negligence by the defendant.
By contrast, in Canada where there is universal health care paid for by the public, there is not the same incentive to sue, nor to sue for such large amounts. The health care component of the injury is covered by the medicare system, so neither the plaintiff nor the defendant is concerned with that issue. The plaintiff sues for compensation for the injury suffered, and for matters not covered by the public system (e.g - renovations to the plaintiff’s house to make it wheel-chair accessible). And that’s not to say that there won’t be large personal injury awards in Canada - things like compensation for loss of bodily functions, loss of income, and additional care costs not covered by the public system can still be large, particularly in the case of catastophic personal injury cases, such as brain injuries or spinal cord injuries.
But, so long as the US says that health care costs are primarily the responsibility of the individual, the individual will resort to the legal system for help to cover them - and the legal system will give large awards.
Following up on the comparative law theme, Canada does have limitations on certain types of damages, which may be of interest to the discussion. The courts in Canada distinguish between pecuniary damages and non-pecuniary damages. Pecuniary damages aren’t capped, but non-pecuniary damages are.
Pecuniary damages are things that can be objectively quantified: loss of future income due to the injury, projected cost of care over and above the public health care system (e.g. - cost of home care instead of institutional care), and so on. Now obviously, there’s uncertainty in those issues as well: what is the plaintiff’s projected life span? what is the current cost of the home care? what’s the likely rate of inflation over the plaintiff’s life time? and so on. But at least there are objecive starting points, and well-recognised actuarial models can be relied upon in trying to answer those questions.
Non-pecuniary damages are the things that just don’t have a pecuniary value, but warrant some sort of compensation: loss of enjoyment of life, loss of consortium, and so on. In a trilogy of cases in 1978 (not on-line), the Supreme Court of Canada capped the category of loss of enjoyment of life at $100,000 for catastrophic injuries, such as paraplegia. They took the approach that everyone’s life is equally valuable to them and it is not appropriate to try to quantify how much a particular individual’s life was worth to them. Loss of enjoyment caused by less serious injuries is pro-rated, and the basic cap increases with inflation - I think it’s closer to half a million in today’s dollars.
Two interesting points about this approach - it was the Supreme Court that did it, as part of its jurisdiction to superintend changes in the common law, and it’s been largely accepted in the past 30 years - I don’t think any province has passed legislation to change it in their jurisdiction.