Why not limit attorney fees?

Great Debates
41

Honestly, I’m a little skeptical about your anecdote. Without decent evidence of discrimination, it’s difficult to get past summary judgment.

In any event, it contradicts my experience and the experience of many of my colleagues who handle many discrimination cases every year.

**

Not really. The people I turn away (for the most part) have been legitimately wronged. The problem is that the wrongs they have suffered are not actionable. Or there is insufficient proof.

And I suspect that nobody takes their cases.

Not because there is a shortage of non-virtuous lawyers. Because there’s no money to be made.

**

I gather you feel that folks with smallish but meritorious claims shouldn’t be able to get representation?

For example, I had a lady in my office tonight with a decent claim that isn’t worth a lot of money, relatively speaking. Maybe $8,000 to $10,000. I signed her up on a 30% contingency fee. If my fee were limited to 15%, I wouldn’t have bothered and I doubt any other attorney would either.

It seems to me you would deny her representation.

42

And that, in a nutshell, is the fatal flaw in most so-called “tort reform” proposals. They don’t distinguish between meritorious and non-meritorious claims. They discourage, restrict or limit both. Two common examples, both of which relate to medical malpractice claims:
The Physician Certificate of Merit

This one was enacted into law in Illinois about 10-12 years ago. The insurance and doctor’s lobbies worked hard to get this passed. It sounds completely reasonable and unobjectionable. It merely requires that a plaintiff who files a medical malpractice claim first obtain an affidavit from a physican which states that the case has merit. What could be wrong with that? It’s only going to filter out the bad cases, right? Wrong. Here’s two real-world examples of why it doesn’t work.

About a year ago, an elderly client for whom I had done real estate, defamation and condominium law work gave me a call. A friend (also elderly) had seen an oral surgeon, who badly screwed up her mouth. She lost teeth, suffered months of pain, and remedial work (while helpful) would never make her completely right. A subsequent treating oral surgeon verified all of this. While I don’t do med-mal work, I do have a partner (1 of 28) who does, both on the plaintiff’s and defense sides. We looked into it. Oral surgeon number 2 appeared willing to testify, but would not get involved as an expert witness. (I’ll expand on this issue later.) Our conclusion? Great case on liabilty. While nothing is ever certain, we were confident that we could show medical negligence. Did we take the case? No. The case simply wasn’t worth enough to justify the costs of bringing it. One of those costs was the amount that an expert (oral surgeon) witness would have charged to review the records, render an opinion and issue the certificate of merit. I guarantee that I could have found a physician to issue the certificate. That wasn’t the problem. The cost of doing so (thousands upfront, at the begining of the case), added to the already high costs of a med-mal case, tipped the scale. I felt like shit telling this elderly lady that she was wronged, but that her injuries weren’t severe enough to economically justify a lawsuit.

Second example. Four nights ago, a physician friend who I’ve known for more than 20 years gave me a call. (I’m going to be somewhat vague in describing the situation, as some Dopers know me IRL and could possibly figure out who I’m talking about if I’m specific.) He’s been sued. I’m his lawyer pal, so he turned to me with questions. While I’ve only heard his side of the story, it appears that he did nothing wrong, although other docs might have, and the patient died after fairly routine surgery. I was on the phone with him for over 3 hours. One of his issues? The certificate of merit. Apparently, the issuer-doc used what appeared to be the same generic text for all of the 6 or 7 defendants, with no evidence that he had really evaluated the situation. My friend was shocked. I wasn’t. If a plaintiff’s attorney thinks he has a good case, but isn’t sure which doc screwed up, he’ll sue them all, and sort it out in the discovery process. Certificates of merit are never a problem, apart from the cost. There are lots of docs out there who’ll sign one in exchange for a check. (In the trade, they’re charmingly referred to as whores. There are defense whores, and there are plaintiff’s whores.)

Bottom line? The certificate requirement does reduce med-mal cases. Unfortunately, it discourages the good cases as much as it discourages the bad.

An (almost) final thought on this issue: Sadly, plaintiff’s whores serve a purpose. The physician code of silence still exists. A local specialist who testifies against a colleague is shunned. There are (non-whore) experts who won’t testify on their home turf for this reason. I’m aware of a case where a young, idealist doc told a patient that his prior doc badly harmed him, and suggested that the patient see a lawyer. The doc even offered to testify. The patient did hire a lawyer. The doc initially co-operated. Suit was filed. All of a sudden, the doc said he couldn’t be part of the case any more. Off the record, he admitted that more senior docs in his group made it clear that he would suffer professionally if he continued.

I’m convinced that the insurance lobby and the more cynical members of the physician’s lobby were well-aware of what the results of the certificate requirement would be. A good result for society? I don’t think so. It did succeed in reducing claims, though.

The Cap on Non-Economic Damages

This is a hot issue right now. While it hasn’t been successfully enacted in Illinois, it has has been in other states, and the Federal government is considering it. The usual number proposed is $250,000. Sometimes non-economic damages are referred to as Pain and Suffering. This proposal usually applies to all personal injury cases, not just malpractice cases.

The proponents of a cap argue that a truly injured patient can still recover his lost wages and medical expenses. This is true. Is this really enough, though? Would you exchange the painful loss of a body part, facial disfigurement, or the permanent ability to walk without painfully limping for $250,000, even if your medical expenses were paid? I wouldn’t. It also hurts some people worse than others. Drunk driver or incompetent doctor hurts my 90-year old grandmother, an unmarried 30-year old with no kids, a housewife, a minimum wage worker with 5 kids, or a child, resulting in the plaintiff’s agonizing death three days later? Immigrant minimum wage factory worker plaintiff loses his arm and lives the next 30 years in daily pain and loses his job as a result of a machine that doesn’t have basic safety devices? Too bad. Case is worth $250,000, or maybe a few dollars more if there are significant medical expenses (which don’t ultimately go to the plaintiff) or lost wages. Yet if that same defendant (by chance) does the same thing to a 30-year old stockbroker or doctor with a spouse and kids, the case is worth millions.

This proposal has the same fundamental problem as most similar malpractice “reforms”. It does not distinguish between the good cases and the bad.

43

This might happen in a free market, but insurance doesn’t have to operate that way. The Democrats would like to change this, though.

From abstract of NYT article from Jan. 24, 2003.

Your skepticism doesn’t alter the fact that many jurisdictions amended their rules of evidence to rein in the abuses of the 80’s. It is much harder to be a pain in the ass to the other side through discovery. Again, though, these actions increase a lawyer’ costs. And I don’t think that you really need to believe me to know that a business that has no income and many expenses won’t last very long. (and lawfirms aren’t dotcom businesses.)

This is a different kettle of fish. Patent lawyers don’t often work on a contingency basis. The only example I know of sued on behalf of an inventor named Lemelson. But, this merely points out the hypocrisy of major corporation who wish to keep legitmately injured people out of courts, while the corporations continue to pursue harassing and abusive litigation amongst themselves. Corporations seek a competitive advantage through these lawsuits, but they find that getting sued for the damages that the cause hinders profitability. They’ve come to the rather clever realization that if they can keep from being sued for the damages they cause, they can protect their profits. (Somehow, “tort reform” is never about reducing torts, it’s always about reducing compensation.)

The reason this is happening is that your premises for your concerns are faulty. You haven’t shown us that lawsuits are happening out of proportion to the rates of injuries, and you haven’t shown us that lawsuits are settled or won for amounts that are out of proportion to the injuries causes. Instead, you give us your suppositions that many lawyers make a career out of meritless claims in hopes that one day they will hit the jackpot, and that you once knew a lawyer with abusive practices. From where I sit, the ball never left your court.

44

I did provide some cites and stats…check above. You’re free to debunk at will (as some already have) but I have tried to do as you asked. Also, as I mentioned before, the mere fact that insurance companies are trying to push legislation that (at this point) might have a chance of passing suggests that where there is smoke there is likely fire. If the insurance companies were hugely off base one would suppose that those opposed to the legislation would have a field day running rough-shod over the insurance industry and that isn’t happening. This indicates to me that there is at least some merit in their claims…how much merit is debatable.

I merely take exception to the wide-eyed innocence portrayed by some of the posters here. As if to say that attorneys couldn’t possibly hold some responsibility for the state of affairs we are talking about here.

Are attorneys solely at fault? Are corporations innocent? are insurance companies blameless? No, no and no. Plenty of places to point fingers at. I would expect the best solution would be a combined one that aimed at all of the above.

It is as I said it was. I may have some of the finer details wrong but I am very clear on the upshot of the entire affair. The company wanted to prosecute (criminally) the employee. The employee threatened a discrimination suit if the company did that. The company, with advice from their attorneys, decided that the legal scene was murky enough that they may not successfully defend themselves from a discrimination suit so they came to an arrangement where the employee was fired (or quit…I forget), she promised not to bring any action of any sort against the company (wrongful termination, discrimination…take your pick) and the company agreed to not pursue criminal charges against her.

Perhaps this will happen to some extent. My father is an attorney and I can’t count the number of times this sort of thing came up. In my idealistic youth I’d see some wrong done (or what I perceived to be a grave injustice) and would ask my dad why entity-X didn’t sue. Very often he’d tell me that by all means they could sue if they wished but it would likely cost them more to sue then they’d ever get back from a lawsuit. In fact, just this week, my former landlord squeezed me out of about $100 after I just moved out. I called my father to plead my case. He agreed that I probably got screwed but was it really worth my time to pursue the matter? For me the answer was no (I realize this is small claims stuff but it illustrates my point.

Further, by your own admission, it would seem it is the attorneys who decide what cases get to court and not because of their merit but solely on the basis of whether or not the attorney will make money…

The lady in your office won’t get her day in court because her claim has merit. It will get to court because you calculated you could make money on the deal. Also note that the pleas for your out-of-pocket costs are mitigated by the fact that (as mentioned above) yout not only get your fee if you win but also recover out-of-pocket expenses separately.

I suppose the attorneys here take an occasional pro-bono case but on the whole it would seem that attorneys are the gatekeepers to the legal system and unless you can pay the price of entry to said gatekeepers you aren’t getting in (and don’t seriously suggest that Pro Se cases are a serious option). It matters little how justified your cause for entry is.

As to some who cry against capping anything in a free-market society as being a bad idea I don’t blame you. In general I agree. I think however that my proposed capping mechanism varies in detail enough to not be as egregious a market blunder as other caps have been.

I am not saying attorneys only be allowed to make X-dollars a year and that’s it. Under what I am suggesting they’d still find it quite possible to become filthy rich. Rather than 33% (and up if the case is appealed) you lower the maximum take to (say) 25%. Attorneys will have a variety of ways to see their income maintained. They will likely only take cases that seem a surer bet and be more averse to borderline cases. They can work harder to see the length of the trial shortened (so they can squeeze in more clients in a year).

For people with borderline cases they can say I will take my 25% AND the client must also pay some hourly fee if they wish to pursue the case. When people feel they can sue with no downside to themselves they will seek to bring any number of cases with or without merit…why not try? However, if they are forced to pay some expense out of pocket they will need to take a closer look at the particulars of their case and determine if it is really worth pursuing.

Will some cases with merit fall through the cracks? Probably but you will never make the system perfect. You have to balance the overall needs of the society and do your best to encourage justice for ALL sides. You can’t stomp out the excesses that can happen from any side but you can do your best to mitigate them as much as possible.

45

Not coincidentally, the US population rose at almost precisely the same rate. Total US population was just a bit above 200 million in 1970, and by 2000, it was approaching 280 million. More people, more lawsuits. Hardly evidence of a crisis.

Whack-a-Mole, you’re the one who is proposing a radical change in our legal system. If you want to change things, the burden is on you to prove that there is a problem. “Statistics” of the above sort don’t cut it.

Where are the statistics showing total claims paid, on average, per insured doctor? Has this figure trended radically upward (i.e., significantly faster than the inflation rate) over the past 10-15 years? Surely the insurance companies can come up with this statistic, IF it supports their case.

I don’t think you’ll see them trotting this one out, though.

What percentage of those cases are tort cases? The cases clogging our civil court systems these days are not tort cases, but domestic cases (divorce, child custody, etc.). In fact, it has become such a problem that many jurisdictions have considered setting up separate court systems for domestic cases, so that other civil cases (including tort cases) can move through the system more quickly. (Some states may have done this already.)

The point is that without more information on the type of civil cases being filed, your statistic tells us nothing about a supposed “tort crisis.” Has there been a significant increase in tort cases? Greater than the rate of population increase?

(Furthermore, the trending upward of civil cases in state court and the trending downward of civil cases in federal courts is partly the result of the federal courts narrowing their jurisdiction over the past twenty years. Cases which once could have been brought in federal courts now must be brought in state courts.)

What else you got?

46

I don’t really want to get involved here, but there was a long thread on tort reform a few months ago. Here it is. I can’t say that there was much of a conclusion reached, but FWIW you can read it.

47

An ethical attorney (and yes, they do exist) won’t take a case that he/she doesn’t believe will achieve anything for the plaintiff. I was once screwed by an employer, and spoke to a couple of attorneys about pursuing an ADA claim; they both agreed that although I probably had a decent chance of showing that the employer had discriminated against me because of a disability as defined under the ADA, I had gotten a higher-paying and generally better job almost immediately.

So even if I wanted revenge, I wasn’t going to be able to show much in the way of adverse effect against me, and between that and the fact that the case would take years to work its way through the system and create all kinds of stress for me, possibly impacting my subsequent employment, it probably wasn’t going to be worth it for me to pursue. And my former employer had VERY deep pockets and probably would have settled just to get me out of their hair, so the attorney could easily have made some quick cash taking the case on contingency.

48

I’ve read through them. I didn’t see them addressing whether lawsuits were disproportionate to injuries or that awards were disproportionate to injuries.

Since you won’t define the problem you are trying to solve, you’ve missed the causes of the problem. Lawyers are not the biggest cause. I’m not convinced that lawyers as a profession are the problem. I haven’t seen anything that tells me the courts are overburdened or that litigants are winning the lottery. I have heard that insurance companies are losing money. Clearly, lawyers are losing a PR battle if people favor insurance companies over lawyers.

I see it that it is easy to villify trial lawyers. Legislation passed on commonly held prejudices and misperceptions doesn’t mean that those prejudices and misperceptions are true. Clearly, YMMV. Insurance companies are having a pretty good time with politicians these days. We know this because of the unsponsored amendment to the homeland security bill that altered the normal rules for vaccine lawsuits. (mind you, these vaccines are not related to homeland security) Insurance companies want to continue their good fortune by federlizing malpractice and severely limiting punitive damages. This present Congress will likely give it to them.

If you want to see lawyers disappear or make less money, than you should take steps to end the events they sue about. For a five year period, Texas did not revoke the license of any doctor. Recently, they ended that drought when they revoked the licenses of one or two doctorsfor sexual assaults. In that time period, it seems hard to believe that no doctor deserved to lose a license. We allow medical malpractice insurance companies to collude. I can believe that these companies are losing money, but they’ve found that they can blame their losses on lawyers and find a way to limit claims they need to pay. At least one insurance executive has confirmed that capped lawsuits will not lead to large premium reductions for doctors.

In a situation where there is not effective policing, you end up having lawyers take up that role. Right now, doctors are not effectively policed. Right now the pharmaceutical industry is not effectively policed. In both of these situations, lawyers are doing the best they can to compensate for the lack of oversight. Good doctors get screwed by both these situations. Bad doctors take advantage of it. I see two ways out of it. 1. Effective policing. 2. Limiting redress. The insurance and pharmaceutical industries would rather limit their damages by limiting what they pay, not by moderating the actions that lead to damage. They know that they can blame the problem on lawyers, and that if they say that lawyers are hurting doctors that the public will support restriants on lawyers. So, fewer people can get into court and they will receive less when they get there. But, the bad actions that cause damage remain.

Maybe after tort reform there will be fewer lawyers, or there will be lawyers making less. But, after tort reform there won’t be fewer people getting injured. Concentrate on limiting injuries and you won’t have to worry about lawyers - they won’t have anything to do.

49

All smoke and mirrors huh? Unfortunately I am having a helluva time finding stats. More accurately, I’m having a helluva time finding what I consider to be unbiased (or as near as possible) stats. I’ve found scads of stats otherwise but they are from the Insurance Institue Something-or-Other or the American Trial Lawyers Association or the like which predictably show what they want you to see.

So…I have tried my own, admittedly brief and untutored, analysis. My Resource is the National Practitioner Data Bank which is run by the US Department of Health and Human Services. From my reading this source is most acceptable to opponents of Tort Reform (hence on the trial lawyers side of the ledger). Many sources blast Jury Verdict Research (a favorite source for the insurance industry) as unreliable compared to the National Practitioner Data Bank.

I’m sure many will rip me up on this but be nice…I’m trying (note my math is especially bad so someone may want to check it). Note that all the following links are PDF documents and somewhat sizeable (70 pages gove or take). I have provided a link to the document by each year I looked at and provided the PDF page number (not the page number within the document…if you grab the slider bar to scroll down you will see the page number listed) to the data I am citing. The ‘Percent Change’ is my calculation and where you may want to review my math.

Mean Medical Malpractice Payment Amounts:
[ul]
2001
[li] Physician - $270,854 (p. 50)[/li][li] Nurse - 462,251 (p. 53)[/li]Percent change over previous year; Physician 8.1%, Nurse 41.8%

2000
[li] Physician - $248,947 (p. 66)[/li][li] Nurse - $269,090 (p. 69)[/li]Percent change over previous year; Physician 9%, Nurse -7.5%

1999
[li] Physician - $226,739 (p. 64)[/li][li] Nurse - $290,697 (p. 70)[/li]Percent change over previous year; Physician -9.9%, Nurse 1.1%

1998
[li] Physician - $251,624 (p. 71)[/li][li] Nurse - $287,507 (p. 78)[/li]Percent change over previous year; Physician 14.9%, Nurse -7.5%

1997
[li] Physician - $214,332 (p. 46)[/li][li] Nurse - $310,814 (p. 50)[/li]Percent change over previous year; *Physician 14.5%, Nurse N/A

1996
[li] *Physician - $183,126 (p. 39)[/li][li] Nurse - N/A[/li]
[sub]*1996 did not seem top break out malpractice between nurses and doctors and the like. As a result the numbers denoted with an asterisk may be skewed as they might incorporate both professions.[/sub]
[/ul]

Again, I will grant they may be many modifying factors to those numbers and do not claim they tell the whole story. Nevertheless they would seem to indicate a general upward trend in malpractice awards.

I have tried several times now, with mixed success, to support my claims. Anyone care to try the same with counter data to my attempts? I have tried to be fair in my data collection as much as possible. I mention that only to say that if anyone provides data from clearly biased sources to refute my data then I can easily provide similarly biased sources right back. I truly seek to learn on this one and not merely advance an agenda regardless of evidence to the contrary. Hopefully others will do the same.

50

Whack, you seem to be making an honest effort to find an unbiased source here. I appreciate it, because it’s more of an investment of time than I’m able to provide.

I have no reason to question your latest numbers, which seem to show a modest upward trend. I will make one observation, though. Many if not most states have enacted some form of medical malpractice limits. While I believe that outright caps are rare, other restrictions tend to discourage the smaller cases, whether valid or not. If I’m right, then the mean award would rise for that reason alone, even if everything else remains unchanged.

51

You’re changing horses on me here. The issue is whether or not verdicts/settlements have been increasing out of proportion to inflation. To hear the insurance companies tell it the awards are growing far beyond what should be accounted for under normal inflationary pressures.

If you want to argue whether a wrongful amputation (for example) is worth a million dollars more than has been usually awarded in the past then that is a different discussion. Or are you suggesting the growth in awards is really a market correction upwards to reflect the true values of pain and suffering? Unfortunately these are decidedly subjective things to apply monetary values to but perhaps there is a formula for this stuff I am not aware of.

I for one am trying here and now to shed prejudices and misperceptions. So far I have laid out data and a premise under which I think things might be improved. I have not seen a coherent argument back but rather rhetoric on how attorneys are blameless. Maybe they are but so far its all been one big dodge (e.g. spoke- asked for evidence then shouted down the evidence of the statistics provided as lies…they may have been but no refuting evidence showing the alternative was provided).
You will note I have never suggested limiting awards to plaintiffs. When someone is negligent and causes grievous harm they should be taken to the cleaners…whoever they are. I seriously wish HMOs and such could be sued and it galls me that they are protected from answering to their actions unlike the rest of corporate America. (As a complete aside I wish baseball was subject to anti-trust laws but that’s getting too far off topic.)

As I said before I think the best solution might be multi-faceted.

  • Make insurance companies answerable (read can be sued) for their decisions regarding an individual’s health care.

  • Limit maximum attorney fees for contingency work and/or require plaintiffs to pay something up front to sue someone (ala a co-pay such as when you go to the doctor’s office or buy a prescription). Something to make people think a little harder than they need to now before filing a lawsuit without pushing too hard that you discourage those with legitimate cases.

  • If anything INCREASE punitive damages on corporations…have some teeth that forces them to pay attention and attempt to be good corporate citizens before they get sued. The punitive damages should go 100% to a state fund for education or something else useful…attorneys and their clients shouldn’t touch that piece…they get theirs via actual damages (are ‘pain and suffering’ under actual damages?).

  • Actually now that I think on it I suppose the attorney should get a piece of the punitive damages as you want him/her to actually to go to the trouble to argue for such a thing. As it is punitive damages seem relatively rare anyway. I’m sure some percentage of the take up to a maximum amount (adjusted by length of the case) could be arranged to be satisfactory to all concerned.

How’s that? Some give, some take. Attorney’s max contingency fees are capped at something below today’s level but you open the door on suing insurance companies and maybe have a shot at bigger awards.

Attorney’s can still charge whatever they feel like if the client pays out-of-pocket and may even pad their contingency fee with some minimal payments from the client to make up the difference lost in their contingency being lowered. Somehow I suspect attorneys as a group would survive and prosper under this scheme after a little shakeout period.

52

Look, did you have direct contact with this employee’s attorney? Were you negotiating on behalf of the company? How do you know that she didn’t have a tape-recording of somebody telling her she was gonna be prosecuted because she’s black?

Anyway, there’s no need to really debate this point. To the extent that your anecdote is relevant (and it’s not really, since this person did not extract a large cash settlement from the employer), it is inconsistent with my experience and that of other attorneys.
**

Ok, well, here’s another proposal for you: Why not reduce the statute of limitations to four weeks for all claims? Yeah, a few deserving people will get screwed, but it will cut down on the number of frivolous lawsuits, right?

**

Absolutely. So what?
**

I’m not sure why you bring up out of pocket costs with me. They aren’t such a big deal in labor cases, at least compared to med-mal and stuff.

**

A lot of my clients could never afford any kind of hourly fee. Most of my clients are unemployed and struggling to make ends meet.

**

As has been pointed out to you several times, contingency fee lawyers already screen out the weakest cases. Do you think I’m making this up?

**

Well, I agree that it’s important to strike a balance. And perhaps changes can and should be made. However, anyone who believes that a minority member who’s been fired can easily extract a juicy settlement from his or her former employer is not assessing things rationally enough to offer much in the way of constructive ideas. (IMHO of course)

If I could file suit on behalf of any minority who walked into my office after having been fired from a job and collect a nice juicy fee, I’d be living in a $2,000,000 house when I’m not spending time in my Fifth Avenue pied-a-terre.

53

All this talk about malpractice reminds me of an Ole and Lena joke:

Doctor: Your leg is swollen, but I wouldn’t worry about it.
Ole: If your leg vas svollen, I vouldn’t vorry about it eeder.

:: rimshot ::
Thanks! I’m here all week.

Tripler
I guess ya just have to have been there.

54

Whack-a-Mole:

I said it before, and I’ll say it again. You’re the one calling for a radical change in the system. The burden is on you to prove that the system needs to be changed. The burden is on you to prove that the system is broken. (Otherwise, why “fix” it?)

My position is that there is no crisis. You are asking me to prove a negative. Nope. Won’t do it. If insurance industry representatives contend that there has been a radical increase in malpractice awards, then it is within their power, and certainly in their interest, to prove it. Instead, all we’re seeing is hand-waving and smoke-and-mirrors. This leads me to believe that there has been no real increase, that there is no “crisis,” and that the insurance industry is gouging doctors.

Incidentally, I was not taking a personal jab at you with the “lies, damn lies and statistics” crack. It was a reference to an old quote from Mark Twain (or Benjamin Disraeli, depending on whom you ask): “There are lies, damned lies, and statistics!” I was taking a jab at the insurance industry, and the misleading statistics they are using to “prove” the existence of a “crisis.”

Again, the most telling statistic would be the mean malpractice award or settlement, per doctor (i.e. averaged out among all practicing physicians), over the past 15 years or so. In other words, take the total of all malpractice awards or settlements for each year, and divide by the number of practicing physicians for each year.

The insurance industry could easily produce this statistic from their records if the statistic supported their claims. The fact that they have not produced this statistic tells me that it doesn’t support their position, and that the so-called “crisis” is bogus.

(Note: The insurance industry alone has the ability to produce this statistic, since pre-trial settlement amounts are not a matter of public record.)

(See the obstacle to proving the negative?)

55

I have provided stats for you. I have tried to provide reasonably un-biased stats at that. I have gone through and tracked the mean awards given to doctors over the time I could get data for (back to 1996…unfortunately no earlier was provided).

I am not asking you to prove a negative. Far from it. There is no philosophical reason why you couldn’t provided data to counter my assertions if you wished. Your refusal merely leaves the insurance industry as the only ones talking. They are throwing numbers out to prove their point. You can call those numbers bullshit all you like but that is not nearly as compelling as providing your own data to support your asserion of bullshit.

When logic fails…hyperbole.

Maybe not such a good idea then. However I will say I have an innate dislike of the notion that there is no downside for the plaintiff to attempt a suit. Even healthcare generally requires a co-payment from the patient in all but extreme hardship cases. Maybe it is not possible to resolve that in the legal system as you don’t want to shut the door on people who have legitimate complaints but no money. It sits poorly with me just the same.

More appropriately contingency fee lawyers screen out all the cases they feel they cannot make money on. It also doesn’t mean that attorneys don’t exist whose threshold for a decent case might be lower than yours.

I’ve been talking mostly about medical malpractice here…not discrimination.

I would assume the gold pot for a discrimination attorney would be finding an employer with a history of discrimination and not just discrimination against one employee. Once (if) you’ve proven the pattern the attorney can then multiply their fee times X-number of employees and former employess affected for relatively little extra cost to the attorney at that point.

56

I couldn’t open your links, and I don’t understand what you mean by “mean awards given to doctors.”

Do you mean that the stats you posted are the average amount of all plaintiffs’ malpractice verdicts? Were defense verdicts included? What about cases which were thrown out on motions? Settlements?

Please explain.

The stats you posted do NOT look like total malpractice awards averaged per capita for all practicing physicians. (Unless you believe total malpractice awards averaged out to $280K per practicing physician? Ridiculous. If that were true, then physicians would each have to pay something in excess of $280K per year, on average, in insurance premiums.)

Please explain how the statistics you posted were derived, and what you mean by “awards given to doctors.”

57

Oh, and as to providing counter-statistics:

As I pointed out, the insurance companies control the data. It is not public information. (At least with respect to settlements.)

The insurance companies can tell us (if they wish) what their total payouts were for each year. If the data support their arguments, why don’t they produce it?

58

The links are to PDF files so you need Adobe Acrobat Reader to view them (the download is free). I clicked on the links and they work fine for me.

‘Mean’ awards is the average awards.

I am not sure about your questions. I take the information in my links to mean awards to the plaintiff without regard for how every case went (dismissed, settled, etc.). The numbers merely show an upwards trend in damage amounts (don’t know if that includes punitive damages) where the defendant has lost.

The National Practitioner Data Bank from which I got my stats is a governmental agency run under the US Department of Health and Human Services. By law physicians are to report payments made in malpractice suits thus neatly sidestepping pre-trial settlement amounts being locked away by the insurance industry.

I’m not certain why this needs to be defined on a per capita basis. We are talking about trends and judgements/settlements are trending up…that much is clear. The causes of those trends is debatable.

As for $280K/year premiums you must have missed the following bit in an earlier post I made. Maybe not quite as much as $280K/year but getting there (and I have seen as high as $240K/year cited somewhere in my reading but I can’t find it now).

Here is some more data from the NPDB (2001):

That would make the jump in one year for Obstetric doctors 28.6% (if I did my math right).

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Nice selective bolding there, Whack-a-Mole (in re the NPDB data). Did you miss this part:

I.e., the information is emphatically NOT available to the public. The insurance companies DO have the information, and if they want to make radical changes in the law, they need to produce it in support of their arguments.

I’ll try to explain, using an illustrative hypothetical:

Assume we have a sample of 1000 doctors. In year one, 20 of those doctors get sued. The plaintiff prevails in every single case, and the average verdict is $200,000.

In year two, 10 doctors get sued. However, 2 of those cases are thrown out on summary judgment. 2 more cases are settled for $50K each. 2 more cases result in jury verdicts for the defendant. 4 cases result in verdicts for the plaintiff, in an average amount of $400,000 each.

Now the insurance companies scream: “Mean jury verdicts against doctors have doubled in the past year!!! Last year, the mean jury verdict against doctors was $200,000. This year it’s $400,000!!!”

That statement would be absolutely true.

And grossly misleading.

Because in year one, the total payout by insurers was $4 million. ($200K X 20 verdicts).

In year two, the total payout by insurers was $1.7 million ($400K X 4 verdicts, plus $50K X 2 settlements).

That is why the statistics you dug up are (or may be) misleading. A better measure of the trend would be to take the total payout, and divide by the total number of doctors. In year one of our hypotherical, this yields an average verdict, per doctor, of $4,000. In year two of our hypothetical, the average verdict per doctor has dropped to $1,700.

If the insurance company radically raises its premiums under these circumstances, it is gouging doctors.

There is no reason medical malpractice insurance companies could not produce a stat which shows us the average verdict, per doctor, on a national basis. If this figure is trending rapidly upward, it would support the call for tort reform. Therefore, the insurance carriers have every economic incentive to produce this statistic, IF IT SUPPORTS THEIR ARGUMENTS.

The fact that they have not produced this information should tell you something.

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Gah. The logic is simple. If you try to reduce the number of frivolous lawsuits by limiting attorneys fees, you also reduce the number of meritorious lawsuits. Why won’t you concede this obvious point?

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My threshold is pretty low. Anyway, the reality is that if you have a really crappy case, you’re very unlikely to find a lawyer to take it on contingency, even if there’s no “downside” to you. Why won’t you concede this obvious point?

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I’m not sure what your point is - are you saying that attorneys fees should be limited only in the area of medical malpractice?