[sonny]

Does anyone else think that frivolous lawsuits are going to be an even bigger problem in the future than they already are?
What can be done to put an end to all this nonsense?

[Steve in PA]

The loser pays all costs..........every penny. So unless you are 110% sure of your case, instead of looking to settle to make a few bucks..........you'd better be ready.

[Jeeper]

The only thing that a "loser pays" system does is benefit big business by discouraging valid suits. No one would sue big companies since the chance is too great. This would mean basically complete immunity for large corporations. Thusly they would not have to meet safety standards. They would be free of all responsibility. Not really my idea of a good system.

[Graystar]

The "loser pays" system is already in place. When you sue for damages you also ask for "costs". The validity of the claim is determined by the judge. The entity being sue also makes a claim for costs.

[Jerrywahid]

I know this isn't exactly the topic of conversation but it's a theory of mine that I would like to air out. If you release millions of lawyers and judges into the wild and tell them they have to abide by rules set forth by a specific document (the constitution) there is only a finite amount of time that the document's integrity can exist. Perhaps if the founding fathers had known exactly what they would be up against 200 years from the document's birth they would have been able to slow the degradation of our society's implementation of the constitution. Perhaps I am wrong. Does anyone understand what I am trying to get across and the relevance of this with the original subject matter of this thread? I like reruns of the x-files before mulder left. Accordingly I bid you good evening.

[sonny]

Morality has taken a vacation.......$$$$$$$$$$ rule :(

[CZ-75]

Common Sense Lawyer Control Legislation. :D

No new law schools permited. Each allowed to graduate no more than 50 attorneys per year. Increase the rigor of the Bar Exam.

[Jeeper]

I think that a lot of people only hear about the ridiculous judgments that are awarded and not the fact that most of them are eventually capped or lowered.

[Jerrywahid]

What does that mean Jeeper? I know you aren't trying to say the rediculous judgements are ok but what do you mean?

[Jeeper]

im saying that what people hear about on tv and complain about is not what the reality is. people think that all these lawsuits end up with tons of money being awarded when it is not really that way.

[Jerrywahid]

i think though that the damages caused by the money awarded are not as harmful as the judgements themselves. from a fundamental standpoint of course.

[Jerrywahid]

also, I know that as a student of the law you are vastly more educated on what we are discussing here. My thoughts on this matter are purely of an elementary and fundamental nature. I am on the outside looking in so to speak.

[Jeeper]

I agree that there are frivilous lawsuits. There just arent as many as most people think. The damages also arent as bad as most people think. In addition, since more plaintiff type suits are decided by juries the public does control this.

[Jerrywahid]

I see what you mean. And the public does control this. In fact the public eventually controls (or fails to control) everything through vigilance or compliance.

[SteelyDan]

Yes there are frivilous lawsuits and ridiculous verdicts. (A lot fewer than many people might think, but that's not my point.) However, our right to seek legal redress in the courts is one of our fundamental rights, along the lines of our right to bear arms. (That's not a perfect analogy, but, again, that's not my point.)

So here's the problem. Just because there are occasional outcomes that a majority of the population would disagree with, which, as noted above, are usually corrected by the judge, do we want to start limiting or restricting the public's right to seek legal redress? Again, this isn't my best analogy, but would you support further restrictions on gun ownership because of a few well-publicized school shootings?

I don't like frivilous lawsuits (yeah, I know, I'm really going out on a limb here), but I worry more about the erosion of individual rights. And for what it's worth, there are steps being taken to prevent and to weed-out the stupid cases.

Finally, I'm not wild about the idea of "loser pays" because, in my practice, I represent property owners whose property rights are damaged or destroyed by governmental action. Many of these are tough cases because the legal deck is already stacked in favor of the government. If we switched to a "loser pays" system, people would be even more afraid to challenge governmental abuses, and government entities at all levels would quickly realize that they had "free reign" to interfere with peoples' property rights.

[Hkmp5sd]

If you sue someone and lose, YOU pay the defendant the amount you were seeking and YOUR LAWYER ALSO pays the defendant the amount the lawsuit was seeking (ie the defendant gets 2x the lawsuit amount). That would kill the oft repeated phrase heard on TV commercials that unless there is a recovery, it doesn't cost the complaintant anything.

[Lone_Gunman]

Trial Lawyers have many faults, but in many cases they are the only protection the average man has from abuse by others.

In the long run, tort reform will only strengthen the position of those already in control.

The solution to the problem is not to prohibit, or attempt to legislate, the civil courts. Instead, we need juries that will hear the merits of the case, and decide an appropriate outcome.

[vmi93]

I practice law, but I don't chase ambulances. There are ethical rules and Court rules that forbid frivolous lawsuits. The ethical rules could, theoretically, cause a lawyer tolose his license if they proceed with a lawsuit that is not grounded in a valid legal theory. The court rules usually call for the person who files a frivolous suit to pay the attorney's fees of the other party.

The problem is that these rules are enforced by other lawyers (the state bar for the ethical rules, the Judge for the Court rules).

Surprisingly, lawyers don't want to make others in their profession angry by enforcing these rules.

I think the solution would be for each state to set up something akin to the medical review boards, Boards of Medicine that police licensing in the medical profession. These boards should be required to have a majority of non-lawyers and could be either appointed or elected.

[Bainx]

Just seems to me that the liberal judges that allow these cases are part of the problem.

Dont' even get me started on Lawyers and their "Ethics".

[foghornl]

About like the situation that exists in "medicine"...you can't get one doctor to say another messed it up.

[Lone_Gunman]

vmi93,

The only problem with medical review boards is that they don't do their job.

A physician has to be unimaginably incompetent before he will be disciplined by the board, let alone have his license pulled.

Medical malpractice lawsuits are the only real way of dealing with these people, because the medical establishment fails to do this on its own.

When a doctor has been sued so much he can no longer find malpractice insurance, then he has to get out of the business of butchering people.

[Ala Dan]

end the "something for nothing" programs; section 8
housing, food stamps, welfare, etc. Make responsible
persons stand on their own two feet. By that, if you
want to eat; then by gosh you're gonna have to work!:uhoh:

By working, the prisons would become less crowded
and that in turn would save tax-payers money. After
all, isn't prisons where approximately 92% of
the frivilous law-suits originate?

Best Wishes,
Ala Dan, N.R.A. Life Member

[buzz_knox]

No new law schools permited. Each allowed to graduate no more than 50 attorneys per year. Increase the rigor of the Bar Exam.

So much for freedom of association, the right to choose one's own career, and basic capitalist principles. As for increasing the difficutly of the Bar exam, it's already tough enough, given that it has absolutely nothing to do with the real world practice of law.

[Sven]

My understanding is that in Europe (at least the UK), if you sue someone and it is determined that the lawsuit was frivilous, then there are automatically charges filled against the guilty party for wasting the time and money of the "defendant".

The US has no such protection.

[Waitone]

I am not a lawyer but I did shake hands with one a few years ago.

I have to draw a distinction (that's what lawyers do, right?) between frivolous lawsuits and lawsuits designed to circumvent the legislative branch such as what the gun industry is experiencing. I have no clue what can be done about frivolous. Seems the law guild itself could implement a little self regulation backed up with closer monitoring by the bench.

The second category is more serious and should be body slammed hard and right now. It is brought about by a class of officers of the court who have found a way to mine the legal system. They've created in industy which is looting the wealth of numerous corporations on highly suspicious terms. The biggest danger is how political types are using their mining skills to circumvent the collective intent of the legislative and executive branch. Dangerous. Highly dangerous and should not be tolerated.

If I was running the PR side of the defense of these lawsuits I'd seek to expand the danger zone to all of maunfacturing. I'd go to GM and Pfizer and IBM and say, "Hey, if you guys think these lawsuits which seek to blame the manufacturer of a product will go away, you are seriously deluded. You guys are next after the gun types go down. If an inanimate object can be ascribed a moral failure, your cars, drugs and electronics can be blamed for moral failure. If you people were smart and forward looking you would get on board with our defense by contributing money and publicity. You better stop it now because your pockets are a heap deeper the gun manufacturers. You have just been warned."

[buzz_knox]

In the American federal court system, Rule 11 of Civil Procedure provides that the court may, on its own motion or the motion of a party, sanction another party for engaging in frivilous or improper conduct, including filing a frivilous lawsuit. The offending party can be forced to pay the other party's costs.

The problem is that determining what is truly frivilous versus a good faith effort to change or expand existing law is hard. Also, there is a strong public policy argument against making all losers pay because it would deter those who can't afford litigation from seeking redress where they have been harmed, but not in a way the law fully recognizes . . . yet. Remember that for years, firing a woman because she wouldn't sleep with you was only redressable via public opinion (i.e. telling his wife) rather than through the courts.

[TallPine]

buzz, I think you are a quart low on humor today - all CZ wants is to get those evil black-suited assault lawyers off the streets. :) (unless they passed the bar before 1994)


What is "frivolous" ? The trouble is that it is subjective. Like suing MacDonalds because the coffee you spilled in your lap was too hot - IMHO that is frivolous but apparently the judge and jury didn't think so. Now all the rest of us get the priviledge of buying lukewarm coffee for the rest of our lives. :rolleyes:

The solution ...? Simple, it doesn't work. That is, you fail to take responsibility for your own failures, case gets dismissed by the judge or nixed by the jury. Pretty soon everybody gets the idea that this bird don't fly.

I just don't know where these judges and juries come from, but then I guess we don't hear much about the other 99% of rational decisions, only the stupid 1%.

As Dave Barry ( I think? ) said, in America you have the right to trial by a jury of your peers who are too dumb to get out of jury duty.

[rock jock]

Medical malpractice suits are the No. 1 reason many communities no longer have any specialists. In some fairly urbanized areas, a woman may need to travel as much as an hour to see an OB/GYN, and neurologists and cardiologists are so rare that entire counties are without one. Now, if your wife needs to have an emergency C-section, or you have a anurism and need a brain surgeon immediately, you may be SOL and die during an hour-long ambulance trip to a hospital two or three counties away. Depending on the state and the specialty, malpractice can run up to $150-200K per doctor per year. And that's for all doctors in that specialty, not just those that are sued on a routine basis. BTW, just about every doctor will be sued at one point or another, often by a disgruntled patient that is mad because they didn't receive the miracle cure they expected. Who pays those malpractice fees? You and I do, through health insurance rates that climb on average 15-20% per year, and a loss of choice of providers when they move or leave the profession.

Although the truly frivolous lawsuits may happen less often than the media reports, the fact is that some of the most aggregious cases are not considered frivolous and end in huge penalties. Look, for instance, at the breast implant class-action lawsuits. A judgement aganist Dow Corning and others for billions that resulted in bankruptcy for many RP's. The claims of the implant makers, that implants do not in fact cause any disease, was totally dismissed by the jury and judge. The plantiff's trial lawyers dragged out woman after woman who had experienced health problems and surmised that, since these women had implants, they must have contracted their diseases as a direct result. The kicker is that only a couple of years ago the largest single study every undertaken to look at this problem found no link whatsoever between disease and implants. By that time, however, thousands of workers had lost their jobs and a few trial lawyers were filthy rich beyond their wildest dreams. I even remember a quote from one of the jackels when the study was released. When asked if he felt guilty for putting thousands of workers on the streets (ya know, the little people that they are so concerned about) and deceiving the jury and America, his answer was essentially "Heck no, I've already made my money and its a moot point anyway".

Unfortunately, the breast implant case is not unique. The power of trial lawyers is at the point where they are starting to become de facto dictators, deciding how our society will be shaped and what rights we will enjoy. What their liberal buddies cannot accomplish through legislation, they will achieve through coersion and extortion. Once they have made their fortunes, they can finance hundreds of additional lawsuits, only expecting a small percentage to pay off with exorbiant sums of money. It is the ultimate roulette table and they are controlling the wheel. They only have to find one or two stupid juries to hit the jackpot and find the right strategy and the floodgates will be opened wide. This is not something I have read, it is something I see every day in the most litigious county in the nation. My area is saturated with trial lawyers, and some of the very biggest verdicts come from the local federal and state courthouses just down the road.

Then answer is the loser pays system. Are there risks to this system? You bet, but we know what the risks are in the present system - a tort system that is putting the best healthcare system in the world at risk and discouraging new industry only to fatten the wallets of a few powerful lawyers. The question is, when will we decide that the costs we bear now are too much and start demanding accountability?

[Jeeper]

Tallpine

The Mcdonalds case is very intersting. The woman originally sued for about 10K which was 1/3 of her medical bills. McDonalds told her to go screw herself. THis was eventhough that mcdonalds was serving cofee about 40 degrees above their own standard. THe cofee was almost at the boiling point. Did they cause the entire issue. NO were they partially responsible. YES. The reason MCdonals ended up getting hit with damages was because they were to stupid to settle in the first place. A lot of times lawyers are the only ones who can get companies to fix a serious problem. Companies dont care about anything unless it hits them in the wallet.

[Lone_Gunman]

Rock Jock,

Could you please cite one example of a "fairly urbanized area" where a woman would have to travel an hour to find an OB/GYN?

The lack of specialists, such as neurosurgeons, in small towns is not related as much to malpractice as just a general lack of people in that specialty willing to work in a small community where their practices will be smaller.

There are very few specialties that would have standard malpractice premiums in excess of $150K per year, if you exclude high risk doctors that have been sued multiple times and are being covered by high risk carriers.

I agree that there are a lot of misguided malpractice lawsuits. But most of the time the system works, and these suits are either dropped or lost in the court room. Sure, this uses up a lot of dollars that could be spent elsewhere. But there really is no other effective system to prevent incompetent physicians from causing harm. They have to be sued so many times that they cannot find malpractice insurance, and therefore can't be granted a license or hospital priveledges.

[MeekandMild]

Best way to end frivolous lawsuits would be to institute a situation where lawyers are paid a set fee by the governement to take cases. The fee could be something reasonable, like $125 per hour and the funds could come out of a big pot. Government would stop payment at the end of the fiscal year when the pot runs dry.

Plaintiffs have to pay the first $500 out of their pocket and then 20-50% of the rest of the cost depending on whether the damages are physical or mental. Plaintiffs would have to pay other costs like private investigators and copying costs though a separate pot could be set up for this if needed. If this pot runs dry at the end of the year so would the first pot.

Lawyers shouldn't allowed to take cases on contingency basis, instead their per hour cost should be all they get. They must collect the out of pocket costs first or be charged with fraud. Also they should have to keep immaculate records which are subject to government search at any time. Also if they lose the case plaintiffs should be encouraged to sue the lawyers.

All this sounds crazy but that is the way Medicare and other socialized payment systems work. I figure whatever is good enough for heart attacks and brain surgery should be good enought for lawsuits.

[SteelyDan]

Gees Meek, where to start:

1. Create a new government bureaucracy to administer legal fees, determine "reasonableness," handle appeals, etc.? No thanks.

2. Um, where do the "big pots" come from? Presumably taxpayers. Again, no thanks, why should the public pay for private disputes (any more than it does already)?

3. Let's single out one profession for wage controls. That's a nice predecent. Also really inspires lawyers to work hard and establish a good reputation so they can be paid based on their abilities.

4. Sure hope you don't get injured at the end of the year, 'cause the big pot may have run dry and no one will work for you at that point.

5. Why should plaintiffs have to pay less than the full cost of their cases--why make the public pay instead? If the point is to discourage frivilous suits, public subsidies would be counter-productive.

6. Outlaw contingent fee cases? That way most people who are injured will never be able to obtain redress in the first place.

7. You want the government to be able to search lawyers' records at any time?? Well, there goes attorney/client privilege. Most of my cases are against the government; how the heck can I do the job I'm supposed to do if my opponent can keep track of everything we're doing (what with "immaculate" records and all)?

8. If you lose, "plainfiffs should be encouraged to sue the lawyers??" Look, plaintiffs lose 50% of the time, why would you "encourage" more lawsuits when the point, supposedly, is to eliminate frivilous suits.

To be honest, most of what you've described seems designed to promote frivilous suits, not to eliminate them, along with a number of other problems.

[Lone_Gunman]

A flat fee for lawyers paid by the government would promote frivolous lawsuits, not eliminate them

If a lawyer is paid on contingency, then he either has to believe he has a potentially win-able case, or at least one he thinks he can settle for some money.

If he is paid a guaranteed salary, then he does not have to worry about whether his case has any merit at all, he is still going to get his money.

[HankB]

...suing MacDonalds because the coffee you spilled in your lap was too hot - IMHO that is frivolous but apparently the judge and jury didn't think so. Judge - another lawyer. :barf:
Jury - 12 people too dumb to get out of jury duty.

This last isn't really a joke - I've sat through jury impaneling a number of times, and it's been obvious to me more than once during questioning by the attorneys that they were systematically eliminating people with technical or graduate degrees, people with computer skills, people who run their own business, people who regularly read the newspaper, even people who subscribe to The Wall Street Journal or Scientific American. They want, dumb, malleable, sheeple on the jury. In the case of the McDonald's verdict, they clearly succeeded in this.

I tend to agree with the people who suggest a "Loser Pays" system - but I'd actually say that if represented by a contingency-fee attorney, it should be a "Loser's LAWYER pays" situation.

And as far as "loser pays" immunizing big business from lawsuits . . . nonsense. You can still sue. And with a good lawyer, win. If, on the other hand, you can't find an attorney (and there are a LOT of them out there!!) willing to take your side, then that should say something about the merits of your case.

Of course, true tort reform is a long shot. Why? Think about it - most legislators are laywers themselves. Many - especially at the state level - continue to practice law.

Can we say "Conflict of Interest? :barf:

[XLMiguel]

Tall Pine-
I know one of those neurosurgeons who pays the big $$$ for malpractice insurance. He's the one that did my wife's brain tumor a couple years ago. He's among the top 10 neurodurgeon in the country, if not the world. He is a very aggressive, technically advanced, gifted surgeon who litterally creates new procedures that eventually end up in med school curricula (and let me tell you how much fun it is trying to explain that to your insurance company-).

OTOH, he has a less than stellar batting avereage, partly because he takes cases that no one else will touch - those with no other hope. And often, he pulls it off, but on those that had no hope to begin with and didn't make it, well, some sue him because they can't sue God.

A LARGE part of the problem is a litegeous society - those with a warped sense of entitlement and less-than-ethical lawyers who will serve them.

The only answer I can think of is a better educated population with higher moral and ethical standards. But I just don't know how to get there from here.:banghead: :fire: :banghead: :fire:

[buzz_knox]

buzz, I think you are a quart low on humor today - all CZ wants is to get those evil black-suited assault lawyers off the streets. (unless they passed the bar before 1994)

Great, since I passed in 1996, that makes me a post-ban? Low capacity; no telescoping stock; no flashlider or lug . . . yup, sounds like my sex life. ;)

[H Romberg]

The issue of tort reform is a major SOB. On one hand, frivolous lawsuits strain the limits of common sense and tolerance. On the other hand, We don' t want to make it so expensive to sue that only the very rich can afford to seek justice. The Solution to this is supposed to lie in the wisdom and integrity of the judiciary. Unfortunately, the judiciary is all too often co-opted by the legal profession from which it springs. In addition, an over-reliance on the rules of precedence have a chilling effect on the willingness of judges to really stomp on stupid filings.

The McDonalds suit needed to be dismissed with prejudice, and she needed to pay the full court costs. So did the Briggs&Stratton case where the drunks decided to trim a hedge with a mower by holding it up sideways. If you look at the rising cost of medical care, a substantial part of it can be traced directly to the insanely huge awards people sometimes recieve, and the insurance premiums necessary to cover them. OTOH, ordinary folks NEED to be able to take on insurance companies, and even the government itself in the courts. The only way they'll be able to leverage sufficient talent to do that is with the prospect of a big pay-off and a contingency fee for their lawyer(s).

So here's the question: How do you induce judges to rule (and rule objectively) on a case by case basis without swamping the system with cases where the law is already clearly established? I wish I had the answer. I have a sinking feeling that it lies in supporting politicians who will attempt to appoint judges who are more concerned with dispensing justice than with establishing the law. Perhaps if judges weren't allowed to be lawyers, one could prevent the conflict of interests, though that procuces its own set of problems. A knotty problem indeed.

[CZ-75]

Ambulance chasing should be made a felony, as should TV commericals for personal injury attorneys.


Another good suggestion - execute the attorneys for the losing side - Truth or Consequences. ;)

[anchored]

Well, as a lawyer and a judge, I just have to say, lawyers don't sue people, people sue people! Judges don't award billions in damages, juries (more people) do! If you want to reform the system, you have to reform the goals of the people using the system, so they acheive their goals (redress of grievances) in a "better" way. Sure, there are bad lawyers out there just like there are bad gun owners, but don't let them define the issue.

[CZ-75]

lawyers don't sue people, people sue people!

While, fundamentally, you're right, I disagree in fact.

Personal injury attorneys advertise on TV encouraging people to sue. While it is ultimately up to the plaintiff, I can't help but wonder how many suits were undertaken that might not otherwise have been.

Additionally, there are the ambulance chasers who actively pursue those who may have suffered some harm. These lawyers take advantage of people under duress, playing up fears that they may not be able to work again, that they may lose their property, etc.

Of course, there are those folks just looking for a chance to sue, for whom any lawyer will do.

[H Romberg]

<<And as far as "loser pays" immunizing big business from lawsuits . . . nonsense. You can still sue. And with a good lawyer, win. If, on the other hand, you can't find an attorney (and there are a LOT of them out there!!) willing to take your side, then that should say something about the merits of your case.>>

If I have a case that is anything less than Iron clad ( and how do I know?) I'm going to be mighty reluctant to sue anybody with the $$ to hire the best. It's an asymetric threat.

Picture a mom with a hurt kid and the desire to have her doctor's insurance cover injuries she honestly believes to have been the result of the doctor's negligence or incompetence.

Now picture that if her contingency based lawyer loses her case against the best in the business (what the insurance company will hire), she'll have to cover BOTH sets of legal fees, to include a mill or so in fees to the insurance company's law firm.

She won't be very likely to sue for fear of being so broke after losing that she won't be able to take care of little Johnny. The short version is that you'll have to be rich, really rich before it would make sense to sue anybody. The long term version is that insurance companies will be tougher to make pay, and that doctors won't have quite the incentive they have now to be carefull. I'm not advocating the current system, just emphasizing that there are always unintended consequences when we change the system. Tort reform is a tough nut to crack, and it needs to be done on a case by case basis.

[rock jock]

Good points about the downside of the loser-pays system. There has got to be a good compromise, though. What about capping the amounts that the loser has to pay to, say, $10,000, $25,000, or $50,000? This would prove to be somewhat of a disincentive for lawsuits without much merit and still won't bankrupt a lawyer/client if they lose.

[HankB]

If I have a case that is anything less than Iron clad ( and how do I know?) I'm going to be mighty reluctant to sue anybody with the $$ to hire the best. It's an asymetric threat. As I said, there are a LOT of attorneys out there. If NOT ONE of them is willing to take the case, that says a lot for the merits - or LACK of merits - for the case. Now picture that if her contingency based lawyer loses her case against the best in the business (what the insurance company will hire), she'll have to cover BOTH sets of legal fees, Well, if her attorney is working on contingency, there would only be 1 set of legal fees to cover. And not if we go to a "loser's lawyer" pays system. Seems only fair. since the lawyer in particular stands to gain 40%, 50%, maybe even more of the award if if wins. And the woman would be depending on his legal advice and legal judgement in filing the suit. With today's system, there's every incentive to "go fishing" without much regard for the case. Some companies will just pay you off to avoid the nuisance.

Today's system has no real downside, it doesn't matter if your case is ridiculous - go ahead and file, you have nothing to lose.

Literally.

But by the mere act of FILING the suit, you damage the person you sue. There should be consequences if you're wrong.

[XLMiguel]

So whuttaya think about this guy?
STELLA SHORT
Rolf Rohwer of Scotland is a professional big game hunter, and went on a safari in Africa to shoot game. When a lion charged him, he shot it -- but the lion managed to keep going, crossing 30 yards to maul him. The problem, Rohwer says, is he was trying out a new type of ammunition in his hunting rifle. "This bullet is not suitable for killing a charging lion," says his American attorney, Louis Franecke of San Rafael, Calif.

"It's suitable for killing a lion over a period of time. The lion died
basically while chewing on my client." Franecke has filed a U.S. federal lawsuit against Federal Cartridge Co. of Anoka, Minn. The bullet Rohwer used is designed for thick-skinned big game, such as rhinos and hippos; the lion has thinner skin, which allowed the bullet to pass through its body without causing it to expand, making it less lethal, Franecke says. Thus, the shot lion remained a "harmful beast capable of causing severe personal injuries to human for a substantial period of time," the lawsuit says. How much compensation Rohwer is demanding was not reported. Who is responsible when a "professional" hunter uses the wrong ammunition for the job? Rohwer seems to feel that in the safari world, turnabout *isn't* fair play.

SOURCE: "Injured Big-game Hunter Takes Aim at Bullet Manufacturers",
Minneapolis Star Tribune, 16 April 2003
http://StellaAwards.com/cgi-bin/redirect3.pl?26b

[Matt1911]

This may be overly simplistic,but what if there were automatic charges of slander or libable if proved wrong?

[MeekandMild]

SteelyDan :D

I don't know where to start in reply. My suggestions were what the governemnt is already doing with Medicare and Medicaid. What exactly is wrong with lawyers and litigants living with the same rules as doctors and patients? If such behaviors are reasonable under one set of circumstances why not the other?

Of course all the governemnt pots going bust is not all bad. This just means that the lawyers would still have to do the work, they just couldn't get paid.

Oh, and one other rule. The lawyers would not be able to turn down any Legalcare plaintiffs under any circumstances. ;)

[Derek Zeanah]

Medical malpractice lawsuits are the only real way of dealing with these people, because the medical establishment fails to do this on its own.

That's one way of looking at it.

The other way of looking at it is that legal costs are the largest line item that doctors spend money on, and it's gotten to the point where good doctors can't get insurance any more.

Case in point: until recently my town (Jacksonville, FL) had a pediatric neurosurgeon. He's done his job for decades without ever losing a malpractice case (never been sued, if I remember correctly). He can't get insurance anymore anyway, so he's no longer practicing. That translates statistically into one child dying per month who wouldn't otherwise due to the time required for transport to the next-nearest peds neurosurgeon.

If you ask me, I think the problem is a combination of

"Pain and surrering" claims.
Litigants looking to get rich.
Juries who walk in with the opinion of "we can really change this person's life, and it's not going to hurt the doctor anyway because it'll come out of insurance."

It's a bad scene, and it needs to be fixed. If I remember the numbers correctly, limiting the "pain and suffering" claims to $250,000 or so takes most of the motivation for otherwise frivolous suits away from lawyers working for a percentage, and leaves the door open for claims that are actually grounded in mistakes doctors make.

"My baby doesn't have use of his arm because the OB who delivered him yanked on it" will still be recoverable, which I think is what everyone is concerned with.

Kind of like with disability -- my wife was working in an FP's office while in med school when a guy came in looking for disability. Nothing was wrong with him, but all his friends were telling him that he'd been working long enough, and that he was a sucker to not be on disability for something by now, and he honestly thought it was something you just had to apply for...

Of course, I have issues with class action lawsuits as well. When you get a situation where teams of lawyers file multiple suits in multiple states so the defendent knows they're bankrupt if they try to defend themselves (see Dow Corning), then that's nothing more than (legalized) extortion. "Give us when we ask for or you're out of business."

Could you please cite one example of a "fairly urbanized area" where a woman would have to travel an hour to find an OB/GYN?
Nevada? Arizona? Somewhere around that part of the country (yes, an entire state). They're at the point where OB/GYNs are no longer taking new patients, because their insurance won't allow them to take over a given amount. You can do the delivery in the emergency room (they can't turn you away) but I don't know where you stand re: prenatal care.

Here (http://www.jacksonville.com/tu-online/stories/042003/met_12332377.shtml) is something where I live.

[SteelyDan]

Meek:

Well shucks, now that I better understand your proposal, it all makes sense. Especially if CZ-75's second suggestion is the alternative...:)

[ravinraven]

Hey, wAITONE! Did you count your fingers after that handshake?

I've wondered why all lawsuits can't be subjected to a "grand jury" like proceding. A group of people sit in judgement not on the defendent, but on the evidence to be used against a defendent. If there is a "no bill" situation, there is no trial.

In the lawsuit case, a lawsuit could continue after a "no bill" from a "grand jury" but if the complainer loses in the face of a no-bill he pays all costs, etc.

rr

[Sean Smith]

I was fipping through the channels, and a week or two ago happened up a "Justice Leauge" cartoon where Green Lantern was on trial by a bunch of aliens or something. The aliens had a great solution to their "lawyer problem." They killed the lawyer on the losing side. "We don't have a lawyer problem."

:evil:

[Lone_Gunman]

Derek,

In a trauma situation where a pediatric patient is dying from a head injury, there is really not much a pediatric neurosurgeon can do for the patient, that an adult neurosurgeon can't do. So there is not necessarily a death as a result. To suggest that a pediatric neurosurgeon is necessary to prevent death is not really a very accurate statement.

I find it odd that the neurosurgeon can no longer get insurance if he has never been sued. Are you sure that is the case? Maybe his premium just got increased, so things are not as profitable as they were before.

Also, malpractice insurance rate hikes have not been completely, or perhaps even mostly, related to malpractice awards. The insurance companies have lost a lot of money in the stock market in the last few years, and premiums have been raised to offset this.

I guess my real point in all this is that unless stricter licensure rules are in place to get incompetent physicians out of the picture, I cannot support tort reform. Right now, if a physician is incompetent, it is extremely difficult to get him out of practice. At best, a hospital or community might be able to convince him to move to another town, but that really doesnt do anything to solve the big problem. Hospitals and other physicians are afraid to report incompetent physicians for fear that they will be sued by him as well.

[Derek Zeanah]

In a trauma situation where a pediatric patient is dying from a head injury,This isn't something that peds neorosurgeons generally do.

To suggest that a pediatric neurosurgeon is necessary to prevent death is not really a very accurate statement.

I had to ask my wife on this as she's much more competent with these issues than I am.

[begin wife mode]

Babies with injuries to the brain (most often secondary to prematurity) often have a blockage of the flow of the fluid that normaly bathes the brain. This is surgically corrected in very early infancy with a mechanical device that shunts fluid from the spaces in the brain to the space around the intestines. In my general pediatrics experience, these shunts malfunction once every few years. This is a neurosurgical emeregency that must be very quickly corrected to prevent death.

[/end wife mode]

I find it odd that the neurosurgeon can no longer get insurance if he has never been sued. Are you sure that is the case? Maybe his premium just got increased, so things are not as profitable as they were before.Dude has never been sued, and yet he can no longer get any insurance. A lot of doctors in this state are "going bare" and risking their assets wihtout any insurance, but others find that unacceptable. Others believe it's not good medicine.

You can find it as odd as you want, but the situation in some parts of the country are critical. At least, it is if you're in need of a doctor's services and they can't justify the risk to treat you. I don't have that problem as most of you do (the advantages of being married to a doctor, even if she's just a resident), but it's there.

Oh yeah -- it was West Virginia where the OB/GYNs were no longer taking on new patients. The insurance policies there said something silly like no more than 100 deliveries per doctor per year, so that's what they're sticking to.

Also, malpractice insurance rate hikes have not been completely, or perhaps even mostly, related to malpractice awards.Can't provide a cite here, as I'm working from my wife's memory. The problem in many cases is escalating jury awards -- in one state recently, a single jury award in a single malpractice case exceeded all the premiums collected from doctors in that specialty in that state that year. Insurance companies are going out of business. Also note: awards where the death of a baby is involved tend to be very high, due to the emotion involved.

if a physician is incompetent, it is extremely difficult to get him out of practiceAnother point from my wife: malpractice awards are a very inefeective way to deal with bad doctors. The state licensing boards are where you should be focusing your energy if this is your concern.

[MeekandMild]

I guess my real point in all this is that unless stricter licensure rules are in place to get incompetent physicians out of the picture, I cannot support tort reform. Right now, if a physician is incompetent, it is extremely difficult to get him out of practice. At best, a hospital or community might be able to convince him to move to another town, but that really doesnt do anything to solve the big problem. Hospitals and other physicians are afraid to report incompetent physicians for fear that they will be sued by him as well.

Do you recall where you heard that? I recall the first time I read such it was in a carefuly worded letter to the editor by a trial lawyer who was interested in protecting his firm's $40,000,000+/- gross income. This is the same technique that lawyers use when they give out plausible but untrue information to witnesses during depositions. Then by the end of the deposition the witness is spouting the same things as fact

You would never believe an online rebuttal so I suggest you write your state medical examiners board and get the exact numbers for your state. Then you will probably change your mind.

[Lone_Gunman]

I am not sure what the requirements are for a physician in Florida to have hospital priveledges, but in Georgia, one must have malpractice insurance, so "going bare" is not an option.

I agree the licensure boards need to be tightened up. Nobody knows how to do that though. Until someone figures that out, I do not support tort reform.

Just so you know, I myself am a board certified surgeon. My malpractice insurance premium increased by about $10,000 (its now about $40,000 per annum) in the last year.

I have been named in 2 lawsuits, but the plaintiff's attorney could never find an expert in either of these cases who was willing to say anything about the care I provided, so I was ultimately released from both suits, and the insurance company paid nothing.

Both of these suits were frivolous, but I have no problem with either of them really. I did what was right medically, and had no fear of the outcome.

On the other hand, I have seen quite a few physicians who were not competent to practice medicine on dead animals who move every few years to a new location after their reputation becomes sullied enough in one spot. Nothing is ever done to these people. Hospitals don't revoke priveledges and medical boards take no action. The only ones I know who have been stopped from practicing have had to stop because they could no longer get malpractice insurance.

[Lone_Gunman]

Meek and Mild,

check out my previous post; I am a physician, I know this to be true first hand.

[MeekandMild]

Lone,

That's nice. It should be relatively easy for you to call and get the actual names and numbers sent to you as opposed to having to write for them like regular folk have to do. You will probably be surprised.

Better yet, why don't you join the board or become a reviewer? I'd wonder what the perspective of a couple of years of that would teach?

[Lone_Gunman]

Meek,

what numbers exactly are u talking about?

[MeekandMild]

Lone,

The numbers are the numbers of docs in your state who have various licensure actions taken against them. Specific cases of incompetence and specific actions taken. In my state there is a list published every few months. I have seen the list.

You made an assertion which you are now saying is based on your experiance so I am challenging you to come up with some statistics which will either support this or not support it. You will see that there are quite a lot of disciplinary actions taken and will probably be amazed at that.

You say you will not support tort reform unless there is licensure reform and I say there has already been licensure reform. It is my conjecture that you've not been paying much attention and have missed the fact that your opinion which I quoted probably arose from trial lawyer P.R. and a partial observation, conjecture or supposition on your part.

I've seen that happen before. A trial lawyer says "were you aware of A and B" during the opening of a deposition and by the end of his two hour grilling the poor idjit is saying "based on my observation of A and B then C happened". Well A and B never happened nor did C but a skillful lawyer can make you think it did.

Of course if I am wrong, then does this mean that you are culpable for malpractice which exists but which you did not report?

[Lone_Gunman]

Meek,

I have no doubt the license board takes "action", but unless the actions taken result in the incompetent physician not being able to practice, then it doesn't really matter. Frequently physicians will get reported, investigated, but nothing much happens.

I freely admit my opinion is based on my observation, supposition, and conjecture!

I don't think we are going to reach an agreement here, other than that we both agree the current system is broken.

In Utopia, all doctors are competent, all patients get better, and no one gets sued.

[MeekandMild]

Yup. I wonder who is going to get sued when SARS gets into this country and we have 20-30 million dead based on conservative estimates of Chinese death rates? Should prove to be interesting times. Estimates for age 65 and over are 50% deaths and for all ages 15%. Trial lawyers gonna get rich.

Say what are you doing off on a Saturday anyway. Shouldn't you be out sewing up knife holes and extracting pool cues from eye sockets? :D Regards.

[Lone_Gunman]

The knife wounds don't come in til Midnite at the earliest.

As for pool cues in eye sockets, I let the opthalmologists deal with those (assuming there is one around here still able to afford malpractice insurance)...:D

[rock jock]

Both of these suits were frivolous, but I have no problem with either of them really.
I don't see how you can be so nonchalant about this. We both know there is no shortage of professional "expert witnesses" who will say whatever the plantiff's attorney wants them to say. Your fate as a doctor could easily have been been quite different. Wouldn't you rather see this type of case go before a medical review board?

[Lone_Gunman]

Rock Jock,

That is a good point, but the plaintiff couldn't even find paid experts to testify against me.

Tells you something about the merits of the case, doesn't it!

[Dash Riprock]

We should try a modified loser-pays system. Currently, juries can find for either the plaintiff or the defendant. They should be given a third option “complete waste of time”. If the jury unanimously rules that the case that they heard was a waste of their time, then the lawyer who filed the case should be responsible for the other side’s court costs. This decision should not be left to the judge, as they are loathe to sanction attorneys.

Personal injury lawyers often speak of their faith in juries. It is time that we put this faith to the test.

[TallPine]

Another take by someone probably smarter than me ...


The Virtues of an Aggressive Plaintiff’s Bar, or
Shakespeare Misquoted
by John Ross

Copyright 2003 by John Ross. Reproduction of this article freely permitted provided it is reproduced in its entirety with attribution given.

Q: What do you call fifty lawyers trapped in a bus at the bottom of a lake?
A: A good start.

Q: Why are lab researchers starting to use lawyers instead of rats for research?
A: Three reasons: They’re more plentiful, the researchers are less likely to become emotionally attached to them, and there are some things that rats just won’t do.

"The first thing we do, let's kill all the lawyers," said Dick the Butcher in William Shakespeare’s Henry VI, delivering one of the Bard’s most-quoted lines. Lawyers and lawsuits are the bane of our society, and it was obvious even in Shakespeare’s time.

That’s the conventional wisdom, and it’s simple, plausible, and dead wrong. Let’s look at a favorite example, the million-dollar legal judgment against McDonalds for the lady who spilled hot coffee in her lap. Lawyers defending this judgment will list some facts of the case that you may not have heard in a ten-second news sound bite:

1. The scalding was so severe that the elderly woman was hospitalized with second-degree burns.
2. There were dozens of these coffee scalding incidents serious enough to require hospitalization.
3. McDonalds had run tests which determined that serving scalding hot coffee made quality differences more difficult to detect (cheap coffee was indistinguishable from the good stuff.)

These points are valid, but lawyers never mention the most relevant fact about the entire case: For a measly million bucks, global giant McDonalds got advertising they couldn’t have bought at any price. The message, delivered by a judge, no less, was When McDonalds says their coffee is piping hot, by God they mean it! Buy coffee from them and it damn well won’t be lukewarm when they hand it to you. If you’re clumsy, eat elsewhere.

Remember that this wasn’t someone getting a million dollars by suing his next-door-neighbor for serving him free scalding coffee. McDonalds makes literally billions of dollars selling this product. The million dollars was a tiny cost of doing business, and look at the advertising message they got for it!

The same is true of the big judgment (later reduced by a judge) against Domino’s Pizza when one of their drivers, rushing to deliver a customer’s order within the promised 30 minute delivery guarantee, hit a pedestrian and broke his leg. Another message that couldn’t be ignored: Dominos’ drivers will do whatever it takes to get there quickly. (The judgment ordered Domino’s to modify its guarantee and stop docking the drivers’ pay if they exceeded 30 minutes.)

Again, this wasn’t some guy hitting a pedestrian while driving home with his own pizza, it was a national chain exercising the speedy-delivery policy on which it had made its reputation and built huge sales (with commensurate profits.) Does Domino’s still deliver pizza? Yes. Has the price jumped because of losing the suit? No. Has delivery slowed? Not by my stopwatch.

Another thing that the lawyer-bashers never mention is that cases like the two described above are highly unusual and represent a tiny fraction of the lawsuits which flow through the courts every day. They are quite simply "Man Bites Dog" stories. They capture our imagination precisely because they’re so unusual.

The vast majority of lawsuit dollars involve suits where one corporation is suing another. The champions of "tort reform" never mention this. Imagine a company making cheap pajamas out of flammable, synthetic materials. The "reformers" would put a cap (i.e. $100,000) on the amount of money the company would have to pay if a child burned to death wearing their product, but would not limit the amount of money the company could seek in a trademark-infringement suit.

And that brings me to the most important point about lawyers, one that I have never seen voiced: Because we have so many lawyers, and because they’re all motivated by self-interest to get clients and make money, and because they read the relevant laws so carefully in the pursuit of this goal, WE DON’T NEED NEARLY SO MANY LAWS AND GOVERNMENT AGENCIES designed to protect us. Take any industry into which the government sticks its nose, and you could largely eliminate that regulatory agency overnight with a corresponding cost savings and increase in service. Let civil suits keep things honest. Let’s get some real use out of all these lawyers we have!

Why do we have an FDA? To protect you from some guy brewing up cholesterol-lowering medicine with a home chemistry set and selling it to you out of his garage? No, because you’d never buy his stuff, you want drugs made by Pfizer or Eli Lilly. Do Pfizer’s drugs need to be FDA-approved? Of course not. If they have fatal side effects, Pfizer will be driven out of business by the massive judgments against it in the inevitable lawsuits, and Pfizer knows it. Do we need the FAA to make sure American Airlines adequately maintains its fleet of planes? Of course not, because when they crash, American gets sued, and American knows it. Remember Valujet? The FAA didn’t close them down, the free market (consumers suing for damages) did. The specter of lawsuits with their attendant judgments keeps companies honest much more effectively than a bunch of government slugs with clipboards.

Do our food and beverage producers make clean, high quality food products because of the government? Absent any regulatory agencies, would Anheuser-Busch produce contaminated beer, or beer with a lower alcohol content than the label promised? Of course not; it would be bad for business. Lawyers would be scouring the pages of Beer Gut magazine, reading the results of independent tests, rubbing their hands together, looking for lawsuit targets.

In fact, the only areas where lawyers cannot keep businesses honest are those industries to which the government has bestowed tax-free monopoly status by making them illegal, and thus immune from legal remedies, such as illicit drugs. Bought something from some guy on the street corner, and it put you in the emergency room? Sorry, but a personal injury lawyer can’t touch him. The cops might arrest him and he might go to jail, but that won’t help you with your hospital bills.

It goes further. The very existence of the EPA makes a tremendously arrogant statement: It says, "You people that live in [fill in your state here] are so stupid, you will allow others to foul your nest without complaint. You need strangers who have never stepped foot in your state to dictate what is or isn’t an acceptable level of contamination for you." Close the EPA down and let potential lawsuits brought by local people keep any would-be polluters honest.

And that brings me back to the line from Henry VI. Many English words had different meanings when Shakespeare was writing plays than they do today, and the word "lawyer" is one of them. In Shakespeare’s time, lawyer meant lawmaker. (Barrister was the word used then to denote an attorney.)

That’s right. What Shakespeare’s character Dick the Butcher really said was "The first thing we do, let's kill all the legislators."

That’s a bit different suggestion, isn’t it?