Tort Reform: What It Is, Why You Should Care, and Why It Is Anti-Consumer

Tort reform is a buzzphrase that comes and goes, but nearly always gets tied to things like The Great McDonalds Hot Coffee Incident or the rising cost of medical malpractice insurance for doctors. Many blogs, Tort Deform and Overlawyered prominently among them, devote copious space to arguing tort reform.

A tort, by the way, is a wrong for which the law provides a civil remedy. If you punch someone, for example, you have committed the tort of battery. Of course, the tort reform movement is more concerned with consumer issues like products liability, medical malpractice, and personal injury. So why should you care? Because as a consumer, tort reform doesn’t help you, and probably hurts you.

On the one hand, say the tort reformers, ridiculous jury verdicts are driving the cost of doing business sky-high. On the other hand, trial lawyers parade a host of sympathetic plaintiffs past the media circus. Which are right?

Good cases and bad cases settle. This is more or less a given. If a doctor left a sponge in a patient’s chest, chances are good that doctor’s malpractice carrier will settle the related lawsuit rather than risk the bad publicity and financial risk of a trial. The same goes for cases where the plaintiff’s claim is weak. If a driver probably should have avoided the accident he ended up in, she will probably settle for a small amount of money rather than risk a jury verdict of zero.

In the middle are all those cases that cost all that time and money and rack up big jury verdicts. Or not, if the plaintiff loses. Those are the cases the tort reformers are worried about. They want to do things like put roadblocks in front of medical malpractice plaintiffs so that they cannot bring their claim unless it is approved by a “health court” first. Of course, once again, bad cases will be weeded out for a minimal cost, good cases will go forward, and cases where there is a real question will probably fall somewhere in the middle. And in the end, it looks a lot like arbitration, which is advantageous to frequent users, not consumers.

But courts are built to handle close cases. It is what they do best, and what they were created to do. Juries are well-suited to determine how much pain and suffering, emotional distress, or financial loss a person has suffered. Jurors are not experts, but they usually have expert help in arriving at their verdicts. Someone has to decide these cases, and tort reformers want it to be a “panel of experts,” which sounds all well and good until you realize who that panel’s repeat customers will be–the same people repeatedly accused of leaving sponges in patients’ chests. Who will they tend to side with? I’m guessing the ones who pay their bills.

Tort reformers also love to throw around damage caps. In other words, capping the amount of money a plaintiff can receive for his or her injury. The idea is that this will allow insurers to better predict their costs of insurance, and that insurance rates will go down as a result. However, whether or not this actually happens is dubious, and states that have tried it have not experienced the expected drop in insurance rates. Nor have doctors flocked to states with tort reform measures in place.

Plus, there is the emotional response: how can you limit the recovery of a consumer scarred for life by an accident, a Ford Pinto
, or a doctor’s error? Should they have to suffer financially as well as physically for the rest of their life?

When you get right down to it, tort reform is the legal system’s equivalent to an automated customer service system. The choices you have are limited, and the help you can get is chosen for ahead of time–and rarely appropriate.

If you want to read more about tort reform, read the stormy Wikipedia article, the neutrality and accuracy of which is hotly debated at present.

Small print: In the interest of full disclosure, I am a plaintiffs’ consumer lawyer, so I am definitely, admittedly, and unashamedly biased. SAM GLOVER

(Photo: Maulleigh)

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  1. rhambus says:

    There may be some cases in which the unreformed tort system is good for some consumers, but for the vast majority it is a terrible bargain. Imagine you are selling widgets, and one defective widget is produced that results in a jury verdict of $100 million. Where do you think that $100 million is coming from? It’s coming out of the pockets of all other consumers, since raising prices is the only way to make it back. Even if the company has insurance that pays the claim, the insurance company raises rates as a result and then guess who pays for those higher rates? You do, in higher prices!

    The problem with the tort system as it is is that it is a lottery that favors those lucky enough to have juries that will give tremendous rewards (and lawyers know where to bring cases in order to get these enormous rewards – you will find that a huge number of these suits are tried in Mississippi no matter where the plaintiff might be). Since you and I will probably never be in that situation, we pay for those people with our money and get nothing in return.

    Yes, it sucks to be injured by a defective product, but does it suck for millions of dollars worth, over and above medical bills and such? I bet most people reading this would spill hot coffee on themselves in an instant if someone gave them $1 million to do it. So why award someone way more than that because it happened by accident? Medical bills and reasonable pain and suffering are justified, and even some punitive damages. But you are fooling yourself if you think that some fat cat at the company is going to pay the bills. YOU will, through higher prices.

  2. tentimesodds says:

    As a future lawyer, I think I am somewhat qualified to say that the real evil here is gigantic awards to plaintiffs who hire their attorneys on a contingency fee basis. There’s no possible way that an attorney should get $30 million for doing a small amount of work on a class action.

    The other problem is that it’s very difficult to place a price on human suffering. Juries go way too high or way too low all the time.

  3. Squeezer99 says:

    Toyota passed over Mississippi a few years ago for the Tundra truck assembly plant due to Mississippi not having tort reform laws. The plant went to San Antonio Texas. Since then Mississippi past tort reform laws, and Toyota announced they are building a Highlander assembly plant in Mississippi. I think providing jobs are a good reason for tort reform.

    If you really want to fix the problem, change the law so that the plantiff in the court cases has to pay the legal fees of the defendant if the plantiff loses the case. that’ll stop frivolous cases that clog up the court system.

  4. Nick says:

    Tort reform is being pushed primarily by insurance companies. In most “enormous settlement” cases, it is the defendant’s insurance company footing the bill (product liability, medical malpractice). Insurance companies are raising their rates, and blaming it on these “ridiculous jury awards.” Thus, the potential defendants want reform because they think it will lower their insurance bills (and I doubt that insurance companies will all of a sudden lower their rates because of tort reform).

    At the end of the day, tort reform is a ploy to benefit insurance companies, just like the DMCA is a ploy to benefit the recording industry.

  5. Art Vandelay says:

    @rhambus: While agree with most of what you say, I take it with a grain of salt because of the reference to coffee, and no doubt a reference to the famous McDonald’s case. Your tone indicates you think this to be one of the trivial trials, but did you know the woman’s labia was fused to her inner thigh, requiring multiple corrective surgeries?

    I can think of few things I would want a large sum of money over medical costs for, but my genitals being burned and subsequently fused to my leg is right at the top.

    While I think some tort reform needs to take place, creating expert panels will ultimately lead to another layer of bureaucracy waiting to be corrupted in some form or another by corporate interests.

  6. kerry says:

    As someone who has had to buy malpractice insurance to work, and who works with people who’ve had to alter their medical practices to afford malpractice insurance, I can’t say that tort reform is a bad idea. There are simply too many predatory personal injury attorneys out there seeking money from frivolous lawsuits. The system is broken. Hospitals and doctors settle because it’s easier than winning, insurance companies settle for the same reason. Lawyers collect huge fees and the people who were injured, usually by no real fault of the doctor, are left without the huge cash payment the lawyer promised, mostly because the lawyer took it all. Obstetricians have to cut out high-risk pregnancies or nix the OB practice altogether just to stay afloat. It’s insane, it’s bad for patients and doctors.

  7. Sam Glover says:

    What if you cap damages to avoid those “gigantic awards to plaintiffs,” and insurance rates go up anyway?

  8. Sam Glover says:

    @rhambus: The legal system is no lottery. Bad cases are thrown out or settled for peanuts as a rule, and the same goes for the best cases.

    Where there really is an issue of liability or damages, the legal system plays its part, and the jury determines whether the plaintiff should be compensated, how much compensation is fair, and in rare cases, whether punitive damages are appropriate to punish and deter future conduct.

  9. Sam Glover says:

    @kerry: Which frivolous lawsuits are you aware of that have resulted in “huge fees” and “huge cash payments”?

    Frivolous lawsuits are already illegal and punishable by sanctions, payment of defendants’ attorney fees, and, possibly, disbarment. At best, a frivolous lawsuit will net a “nuisance settlement” of a couple thousand dollars. No lawyer can make a living off of that.

  10. Greeper says:

    As I read the post, I thought, this is a plaintiff’s lawyer. Yup. THe notion that “tort reform” is categorically bad is pretty ridiculous. Maybe one can’t agree with everything insurers and manufacturer’s want, but the plaintiff’s bar’s self interest is as bad as, if not worse, as theirs when it comes to defending their turf. Simple, common sense fixes like a “loser pays” rule and requiring people to opt in, instead of out, of class action suits, are slapped down by greedy trial lawyers much in the same way business fights for their interests. And give me a break, juries are NOT equipped to understand complex cases, or understand that their multi-million dollar verdics just get cycled right back to their own premiums and prices. PLaintiffs lawyers like juries because they have on average half the IQ of an average college grad, because they are bored and easily manipulated, and because they are, in essence, a lottery.

  11. Keegan99 says:

    Remember all the great science about the evils of silicone breast implants?

    Oops. Turns out it was speculative bunk. And a jury bought it, making lawyers rich, putting a company out of business, and causing thousands of people – consumers! – to lose their jobs.

  12. pe_tor says:

    It seems to me that some sort of reform might be useful for these tort lawsuits. Any time a ‘ridiculous’ amount of money is awarded to someone it seems to me rather unfair, or at least unproductive from a socio-economic standpoint. And that is the same for huge payouts to compensate people for their suffering as it is for the huge bonuses for corporate executives for their “performance” on the job (a practice that I’m sure garners some measure of contempt from most Consumerist readers). In either situation, what does one really need with all that money? Buying a Bentley to me seems just as wasteful and ostentatious for a jerkface businessman, someone who won the legal lottery of tort lawsuits, or perhaps a hip hop performer (or any other type of musician for that matter).
    Of course, defining ‘ridiculous’ for payoffs and awards and such is darn near impossible, and I certainly don’t envy anyone attempting to design and implement changes designed to make our legal system more sensible. And I also don’t envy those who wish to limit settlements just because they must serve their corporate overlords because I like to be able to sleep at night (hopefully such motives aren’t the majority).

  13. Trai_Dep says:

    Fun fact about the McDonald’s Coffee case that gets everyone in a tizzy. McDonald’s coffee, at the time that the woman’s lap was singed to bits, didn’t make coffee like we make it at home, or even at your local Starbucks, for that matter.

    Rather, because they found that customers generally took their meals 10mins away, the coffee was colder than they liked. So they developed a process to super-heat the coffee so that it could be served at a higher temperature point than boiling (the normal max, since steam allows excess heat to escape).

    Awesome for those customers, not so good for customers that foolishly place cups in lap.

    Had the spill been of normally boiling-hot liquid, the woman wouldn’t have lost sheets of the flesh girding her loins.

    THAT was why they found fault with McDonald’s. Not mitigating or warning that this was waay hotter than your average boiling-hot liquid.

    Okay, you’re a CEO of a multi-billion dollar corporation. You did something wrong. What would get your attention? Filthy lucre. How much? A slice of those multi-billions. Otherwise, there’s no penalty.

    You can argue that that money shouldn’t go to a plaintiff, since it seems disproportionate to the actual damage. Give it to puppies? Unicorns? Perhaps someone actually impacted by the malfeasance makes more sense.

    The only way for a plaintiff to get a day in court is to hire a lawyer. Only way for a lawyer to rationally face off against a legion of corporate attorneys is to adjust the risk/reward ratio so it balances out. Fairest way of doing that is to reward lawyers only if they win – thus penalizing lawyers that file frivilous suits.

    Given we don’t live in a utopia where unicorns frolic with puppies in Candyland lawns of lollipops, the current system is the best way to achieve a result that most agree is needed.

  14. kerry says:

    @Sam Glover: I, my parents, my dog and my sister have all been victims of frivolous lawsuits. I was lucky enough to win. The person who sued me for injuries she claims were sustained during a traffic accident I was also involved in was a liar, and the jury saw that pretty clearly. She just wanted some money. It went to court, it did not get thrown out, we had no interest in giving this woman a dime.
    I’m pretty sure malpractice insurance keeps getting unreasonably high because a lot of people are promised “huge cash settlements” by ads for personal injury attorneys, and file lawsuits for injury resulting from, say, a high risk pregnancy. Because some doctor is not a miracle worker, and did the best job he could with the information at hand, but the kid still was born imperfect, he gets sued. The lawyer walks away with his cut, the plaintiff gets less than they thought they would, and the kid is still imperfect. How is that not predatory? How does that benefit anybody but the attorney? I’m not saying there should be massive tort reform, I’m just saying I’m skeptical of those who unilaterally condemn it. And I’m also skeptical of the insurance companies and hospitals who settle these suits as a matter of policy. What a waste of money, and it all just gets heaped on the backs of the patients, who have to pay more to see their doctors, who have to pay more to their insurance company to stay in business. It’s all broken.

  15. Sam Glover says:

    @kerry: As I said, juries are good at sorting out liars. The system worked for you.

    See my previous comments for examples of states that have installed damage caps. Malpractice insurance keeps going up anyway, so lawsuits can’t be the culprits.

    If there is a problem–which I am not conceding–then the fix lies not in easy measures like damages caps and lawsuit screening, but in a true and honest investigation of doctors’ safety practices, insurance companies’ risk-management practices, and rules designed to deter frivolous lawsuits and excessive attorney fees.

  16. bluegus32 says:

    Sam Glover: I did personal injury defense for a number of years and I must say that I think you’re completely off the mark, or at least as far as California is concerned.

    The issue is not whether a jury will do a good job with a case. Juries are usually quite phenomenal in their verdicts. Runaway verdicts are rare, and typically over-reported in the media. So let’s leave that aside.

    Here’s the reality — every case, no matter its merit, costs money. I have litigated many cases where the injuries were negligeble if not non-existent. So why did the plaintiff get money? Because the automobile policy at issue was $15,000. Faced with the possibility of $20 to $30K in defense costs, many insurance companies will simply settle rather than face the specter of the cost of litigation.

    And if you think that plaintiffs’ attorneys don’t take advantage of this fact, you’re dead wrong. I can name at least 3 “plaintiffs’ mills” within 2 miles of my office. These firms are focused not on merit, but on volume. Bring in tons of cases and settle, settle, settle. Many, many of those cases lack merit or the claims of injuries are grossly exaggerated.

    You next say that courts are currently able to handle non-meritorious cases. You’re wrong about that too. In California, it is next to impossible to be deemed a vexatious litigant. Any attorney, with more than 24 hours total legal experience can draft a complaint that survives demurrer and pushes forward, thus probably compelling a settlement of some kind.

    The real problem, however, is not so much in tort reform but in reform of the profession. Judges are far too leary of sanctioning attorneys for bringing frivolous cases. While there are many statutory and equitable powers available to the court to curb improper litigation, those powers are far too rarely exercised.

    There needs to be something done. The system is broken. I can cite for you many, many cases just from my own personal experience that should never have been brought.

    And at the risk of violating one of my own maxims (that of attacking the argument, not the arguer) I have to say this — anyone who believes that the legal system is fine the way it is and not in need of some kind of reform is either: 1) naive; 2) evil; or 3) profiting mightily from the lack of tort reform in this country.

    Am I missing something?

  17. vanilla-fro says:

    There are way too many trivial lawsuits flying around out there. Granted there are a lot of cases where the plaintiffs deserve an award (not usually as high as they get though)
    It does cost us in the long run. Every time someone sues over something and needs thousands more than they have lost it costs someone money and that money has to come from somewhere.

    On a side note, I bought an insulated mug that had a warning on it that the contents may be hot. This is a mug that I would be filling myself with liquid that I have either heated or not heated. This is what it has come to. They have to warn us about something that WE may have done or I may be able to sue the mug company for burning myself and i may win.

    personal responsibilty hurts a little sometimes, but it may be worth it for eveyone.

  18. Sam Glover says:

    @bluegus32: If I am naive, I suppose I wouldn’t know about it. But I am not evil, nor am I rich by any stretch of even the most hyperactive imagination.

    The legal system can always use improvement. Full-scale tort reform as it is advertised by most proponents is not the way to go about it. I believe this as a plaintiffs’ attorney and as a former insurance defense attorney (auto accidents, construction defect, and products liability).

  19. Kanchi says:

    “Tort reform” is just corporatist speak for “removing one of the last lines of defense consumers have against big business”. Basically huge jury payouts are seen by free marketers as market regulation. And if you are a corporatist, or free marketer, regulation equals bad.

    Now you see already the half truth talking points in this comment thread (right at the top even), straight from talk radio. The idea that some jury would hand out a million dollar punishment, to a company that is too small to ever hope to pay it, is moronic, and the thought that such a ridiculous decision wouldn’t get overturned is naive. These huge plaintiff awards may be excessive, but they are also necessary.

    If award caps go through, companies can just factor in the cost of the payouts for their misdeeds. Whether it’s lax health standards, non-existent quality control, or reckless disregard for employee or public safety, if the savings is greater than the expected payouts, they WILL make the cuts, and consumers lose out.

    One of the main problem with this tort reform movement, and the idiots who go along with it, slavishly echoing the talking point that it drives up the cost of business, and therefore the cost to the consumer, is that these same apologists never look at the reality of the situation. The reality is that product cost is dictated by what the market will pay, not how much they need to charge to make up for the ‘cost of business’. You are never going to have to pay $30 for a cup of coffee, because some business needs to augment the cost of a payout. And on the other side, the reality is that when they do get their payout caps, like with medical malpractice caps, only and a total idiot would think that the insurance companies or the hospitals would lower their prices, and pass the savings along. And the reality is they don’t.

    Tort reform, the free market, communism, and the Easter Bunny are all great and wonderful ideas in theory, but it’s in the real world where they fail to perform.

  20. bluegus32 says:

    Sam Glover: How about this — how about modifying tort recovery laws so that no litigant may be permitted to collect punitive damages personally? Maybe require that all punitive damages awards are to be paid out to the charity of the plaintiff’s choice? Also, require that no attorney may collect on a percentage of a punitive damage award, only on the actual damages award.

    I would bet that if we did this, the number of oh-so-noble plaintiffs and plaintiffs’ attorney who fight for huge awards “on principle” would decrease. Might this not be a step in a positive direction?

    Also, what about some kind of modification of tort laws that would allow a defendant to be compensated for their legal fees should they prevail?

  21. Paul D says:

    @kerry:

    The person who sued me for injuries she claims were sustained during a traffic accident I was also involved in was a liar, and the jury saw that pretty clearly.

    So what are you complaining about? The system works!

    I personally don’t believe there is such a thing as a “frivolous lawsuit.” Truly puerile suits usually either get thrown out of court, or are lost by the plaintiff. I would rather let the court system do its job than arbitrarily slam the courthouse door on millions of people based on a few people’s capricious notion of what constitutes a “frivolous” complaint.

    PS: As any first-year law student can tell you, the McDonald’s hot coffee suit is one of the most misunderstood cases in the history of the US legal system. Contrary to popular belief, the woman had a legitimate complaint and deserved every penny she got.

  22. alfonzotan says:

    What’s he complaining about?

    Gee, how about whatever thousands (minimum) of dollars he had to pay to HIS lawyer to get the threat of a bankrupting judgment out of his life? All the time he had to spend defending himself against a greedy crook and her contingency lawyer?

    But nah, he’s got nothing to complain about. Why would he–there was a lawyer involved who made money! That’s all that matters!

  23. Paul D says:

    @Kanchi:

    “Tort reform” is just corporatist speak for “removing one of the last lines of defense consumers have against big business”.

    Boom. Well said. That’s really what it boils down to. To the corporatist, the company’s bottom line is more important than its customers’ rights. A company can make harmful products with impunity and hide behind the spectre of the one-in-a-million exorbitant payout and have its pocketed politicians bellyache about “tort reform.”

    “Tort reform” is indeed just code for “we don’t want to take responsibility for our mistakes.”

  24. Poetjones29 says:

    I find it hard to buy a personal experience as representative of the entire life experience as a whole. I refer exclusively to several arguments that address either points or other arguments by referring to examples from an individual’s own life. My follow-up would be: Does that example represent the exception or the rule, the state of things or a small sliver of how things appear to be?

    When a national restaurant chain gets tagged for unsanitary procedures, does it affect how you look at the individual restaurant or the chain as a whole? Should it affect your opinion of the entire company? I can only state my opinion: just because it happens on a small scale, doesn’t mean that it’s happening on a large scale.

    I had this very discussion with a friend the other day. What we as consumers have to realize is that everyone in the business world is after our money first and foremost. They’re not looking to make friends, they’re looking to make money. The sooner we become cynical (or paranoid depending on your point of view) about the motives of those telling us why we need to think certain things, the sooner we’ll be better off as a society.

    Humans are free-thinking and free-spirited organisms. It’s time we started using our brains to demand more facts from those advancing conclusions without evidence.

  25. Paul D says:

    @Keegan99:

    Sooo…all those women who got sick with the same symptoms and diseases, where the only connection between all of the cases was the presence of silicone breast implants…they were just fakin’ it?

  26. Further on the McDonald’s case, the “huge” number the jury awarded was entirely rational. The jury looked at the memos McDonald’s had circulated about the super-heated coffee, in which McDonald’s stated it knew that a certain number of injuries per year would result b/c of the higher temperature, but that this would be more than offset by the huge profit increase from having the hottest coffee in the fast food market.

    The jury awarded the woman ONE DAY’S COFFEE PROFIT for McDonald’s. 1/365th of what McDonald’s felt those injuries would be worth when it was weighing customer injury vs. profits.

    I see a lot of misconceptions in this thread about tort reform. The statistics that show “huge and growing rewards to plantiffs” are often misleading — a small county near me was reported with horror as having “six medical malpractice tort cases with an average reward of $25 million!” and being where plaintiffs go to find a sympathetic jury, having far more such cases than surrounding counties.

    Well, no. It was the county that HQ’d the hospital that served several surrounding rural counties, so it carried med mal cases for a large portion of the state. And that “average reward of $25 million”? ONE case had a reward of nearly $150 million, gross negligence resulting in death. The other five were under $100,000 (IIRC). That “average reward of $25 million” is one huge case of $150 million divided by ALL SIX CASES BROUGHT THAT YEAR, even though the other five were tiny.

    As for making lawyers rich, yes, some do get rich. But the cost of bringing these tort lawsuits is ENORMOUS. A lot of that “huge” amount of money lawyers are getting is paying for the costs of bringing the case (which come out of the firm’s pocket and if they lose, they get nothing, not even fees from the client) and paying not just the lead attorney but a large support staff (secretaries, paralegals, stenographers, associate attorneys). Because litigation is so all-consuming, only large firms (with consequently large payrolls) can afford to manage several plaintiffs’ cases at a time, so this may be all that’s paying the bills for several months.

    As for the personal injury mills, it’s interesting to talk to attorneys who work there. (Not the guy who owns the place — one of the younger associates.) Friends of mine at local PI mills tell me they reject from 25 to 300 cases (depending on the firm) for every 1 they take. (However, I’m sure there are shady PI mills that just bring nuisance suits rather than engaging in legitimate ambulance-chasing.)

    I say all this when my bread-and-butter (i.e., my husband’s salary & benefits) comes from tort DEFENSE work. I’m not a plaintiffs’ attorney rah-rah.

    I do agree with Bluegus, though — Judges need to be way more liberal with the Rule 11 sanctions.

    ———
    Why I’m not in favor of “capping” damages as “tort reform”:

    One of the worst cases I ever saw was in North Carolina — I reported on the attorney who brought the case for a magazine profile. A woman came to her office saying her ob/gyn had molested and raped her during a routine exam, and that her complaints to the insurer, hospital ombudsman, and all other channels had been ignored or rebuffed. (Cops had insufficient evidence.) The attorney couldn’t bring the case because of costs involved and NC’s caps (at the time) on med mal recovery.

    A few months later another woman walked into her office — with the SAME COMPLAINT about the SAME DOCTOR. The attorney took out an ad, and more than THIRTY women responded with variations on the same story. At that point (I think with 6 plaintiffs) she could finally afford to bring the case.

    During the course of the case, it came out that the hospital had had nearly 100 complaints. His last hospital had had over 100 complaints (and had shuffled him off to his new hospital WITH A GOOD RECCOMENDATION to avoid his continuing liability!). His insurer had several hundred complaints. THEY HAD ALL BURIED THEM, AGAINST STATE LAW AND THEIR OWN POLICIES, TO AVOID HAVING TO DEAL WITH THE INSURANCE ISSUES OR ANY ADMITTANCE OF WRONGDOING. The ob/gyn had molested or raped literally hundreds of women and NOBODY responsible for overseeing or disciplining this man was willing to do their jobs.

    The lawyer worked on the case for about 2 years straight, to the exclusion of almost everything else, for a total “payday” for her of $150,000.

    North Carolina has since enacted tort reform for med mal cases, which cap damages so low that this case could not today be brought.

  27. Sam Glover says:

    @bluegus32: Perhaps punitive damages should be redirected, but to whom? I’m fairly neutral on this. As to the attorney’s share of the fees, if the fees are appropriate and awarded, why shouldn’t the attorney be compensated for going to the trouble of securing the punitive damages? After all, the point of allowing contingent fees and attorney fees is to allow and even encourage plaintiffs’ attorneys to bring lawsuits it would not be financially feasible to bring without them.

    As I said above, numerous consumer protection laws already provide for attorney fees to defendants if they prevail and a plaintiff’s case is shown to be frivolous. Maybe this doesn’t happen a lot, but it happens often enough to make plaintiffs’ attorneys second-guess their clients and cases.

    For example, I do know of a recent FDCPA reverse-fee award, which I believe was in California. The award was large enough ($70,000+, if I remember correctly) to drive the plaintiff’s attorneys’ law firm out of business. Last I heard, neither of the two partners plans to practice law again.

  28. Sam Glover says:

    @alfonzotan: Unfortunately, yes, the legal system is expensive. Unfortunately, there aren’t many–if any–cheaper ways of doing what the legal system does.

    Ask any criminal defendant who is acquitted after a long and expensive trial, innocent or not. On the one hand, the system worked, vindicating the defendant’s innocence or his or her constitutional rights. On the other hand, that will be little consolation to a now-destitute criminal defendant.

    Yes, it is expensive. That is precisely the justification for contingent fee agreements and attorney fee provisions.

  29. alfonzotan says:

    @Sam Glover: Um, that doesn’t help the guy who had to pay the thousands to defend himself against a frivolous suit, which contrary to all the lawyer-kissing in this thread, was not immediately thrown out; according to his account, it went all the way to a jury. That happens all the time–the guy across the way from me just spent (wasted) a week on jury duty in a similar case, again decided for the defendant but at a ruinous cost, thanks to a greedy plaintiff and a greedy contingency shyster.

    But again, why complain–the lawyers are apparently the only people allowed to make money. At least if you ask a lawyer…

  30. A_B says:

    I applaud Sam’s efforts against “tort reform” as it is currently offered. However, I also agree with bluegus32 to the extent that the current tort system could be improved.

    While Sam and bluegus32 appear to be on opposite ends of the debate, I think they share in common the belief that the current efforts to reform the tort system are not so much about making it better. Rather, the alleged “reformers” are simply trying to make it impossible for plaintiffs to effectively bring meritorious claims and to insulate companies from paying deserved awards.

    I highlight that because it seems, based upon comments made here and elsewhere, that numerous non-practioners have absorbed the conventional wisdom of “oh it’s out of control! The coffee lady made millions for a slight burn! Lawyers are ruining everything!!11!!” Indeed, there are problems and the so-called “mills” described by bluegus32 are just part of them.

    “Also, what about some kind of modification of tort laws that would allow a defendant to be compensated for their legal fees should they prevail?”

    Isn’t this the case in some European countries? The U.K? I may be misremembering. Regardless, this would be a first good step that would have only a slight harm plaintiffs with legitimate causes of action.

    Squeezer99 makes a widely used argument for just about everything:

    “Toyota passed over Mississippi a few years ago for the Tundra truck assembly plant due to Mississippi not having tort reform laws. The plant went to San Antonio Texas.”

    The problem with this line of thinking is that it never ends. What happens when Toyota tells Texas that Mexican workers don’t have health care and get paid $1 an hour? Should Texas do the same? This line of thinking leads to states competing to turn themselves into third-world countries.

    Thankfully, a lot of states and municipalities are learning (after making numerous concessions in the past) that the attempts to compete with overseas manufacturers are ultimately not good for local residents.

  31. Sam Glover says:

    @alfonzotan: As I have pointed out numerous times, if the lawsuit truly was frivolous, then the defendant could recover his attorney fees. This happens, and it scares the hell out of plaintiffs’ attorneys.

    The rewards for taking frivolous cases are meager at best, and the risks are great. I am sure there are attorneys who do this, although I have not yet come across one. But the law provides a remedy.

  32. alfonzotan says:

    @Sam Glover: Convenient. File another lawsuit to recover the money you had to spend on the lawsuit you never should have had to put up with in the first place.

    While all those lovely billable hours roll on and on and on…

  33. bluegus32 says:

    Eyebrows McGee: Must say that I always value your perspective on things. Glad you’re here.

    As to your arguments, I am not going to argue the McDonald’s case because there is no winning that argument. It’s been beaten to death and nobody will ever change their opinion on it. I do think the jury award was excessive in that case. However, excessive or not, it can hardly be said that one case is representative of an entire system.

    And I also agree that tort caps is not the solution. The problem with the system is not in huge jury awards. Juries usually do a good job in properly determining damages and the right to them. No, my problem is in the minutia. The small, numerous, and non-meritorious cases that infect the system. The system is not harmed by one large jury verdict. 99% of cases settle before trial. It’s those 99% that we should be focusing on, not on those that actually make it to trial.

    Bottom line — I think you and I are in agreement that sanction awards for attorney misconduct need to be much more forthcoming. That means if you file a lawsuit where the car accident was at 1 mph and you claim $2 million dollars in damages that have no basis in reason (I have seen countless of such claims), then you as the attorney get hit for the other side’s defense costs. Attrneys need to be reigned in.

    Sam Glover: As I said, redirect the punitive damage awards to the charity of the plaintiff’s choosing. A punitive damage award is by its nature designed to punish, not to compensate a plaintiff. So let’s keep it at that. Let the plaintiff obtain recovery on damages but give the punitives to someone else. I think this would gaurantee that a plaintiff’s motivation in seeking punitives would be a little bit more genuine.

    As for the attorneys, you may be right. There must be some compensation for their efforts. Maybe make attorneys’ fees subject to court approval, though, as we do for attorneys of minors. So, if an attorney worked a sum total of 2 months on a case, don’t let him or her get $50 million as a contingency.

    I don’t know. I’m still cogitating on that one.

  34. Sam Glover says:

    @alfonzotan: Now we are getting into legal procedure, but no, it does not require a further lawsuit. And those “lovely billable hours rolling on and on” are also recoverable.

  35. Trai_Dep says:

    And, for what it’s worth, about 90% of the caseload of suits clogging the civil court system are companies suing companies. Not individuals suing each other or companies.

    One of tort “reform’s” talking points is that our legal system is being clogged by irresponsible individuals (and their shysters).

    Patently, provably false. Makes you think their other talking points are off the mark as well.

  36. bluegus32 says:

    @Sam Glover: “As I have pointed out numerous times, if the lawsuit truly was frivolous, then the defendant could recover his attorney fees. This happens, and it scares the hell out of plaintiffs’ attorneys.”

    Sam, that’s a fool’s game in California. In California, attorneys’ fees for a frivolous suit can only be brought only if 1) you take the original suit to trial (at your own cost) and win and 2) you then file a separate suit for malicious prosecution.

    This avenue is only available for people who have $100,000 to spend on two trials and are willing to eat up 2 to 5 years of their lives on the endeavor. This is not a viable option nor is it a remedy with any teeth. I do not know of a single attorney here in California who is actually fearful of this. Maybe it’s different in your jurisdiction.

  37. SuperJdynamite says:

    @tentimesodds: “As a future lawyer, I think I am somewhat qualified to say”.

    I hope your future lawyer self learns to avoid self-sabotaging your arguments. Where you said “future lawyer,”and “somewhat qualified” you should have said ” ,” and ” “.

  38. Sam Glover says:

    @bluegus32: No Rule 11 in California? Or just a procedural mess to take advantage of it? That isn’t really a tort reform issue so much as a problem with procedure, it seems to me.

    And I’ll certainly agree there needs to be change if that is the case. Defense attorneys file just as many improper pleadings, motions, etc., as plaintiffs’ attorneys. All should be nipped in the bud.

  39. kerry says:

    @Paul D: It worked because I and my insurance company fought this liar tooth and nail, she wasn’t expecting a fight, she and her attorney expected us to settle. The hospital I work for, as an example, would have settled to shut her up. She would have been rewarded for lying about an injury, her lawyer would have been rewarded for supporting that lie, and the folks who pay malpractice insurance would get to watch their rates go up. I’m not saying I support tort reform as presented here, I’m just saying that the system *is* broken and something needs to be done. Bluegus’s comment that fixing the legal system is what’s really needed, but I’m too cynical to believe it could ever work. As long as there is a way to get rich doing shady things, there will be unscrupulous people doing shady things to get rich.

  40. bluegus32 says:

    @Sam Glover: Nope, nothing equivalent to the Federal Rule 11, or at least nothing that is used on any regular basis. Courts have inherent authority to issue those types of sanctions but none ever do. I have practiced in federal court and I know the very real fear of Rule 11 sanctions. This is a tangible fear that any attorney in federal court is very cognizant of. However, in California state court, there simply is no such fear. Those sanctions are never doled out and no California attorney is in fear of what might happen if s/he files a non-meritorious claim.

  41. facted says:

    If people want their children to be delivered by OBGYN doctors in this country, we should start focusing on providing some sort of relief to malpractice insurance premiums, perhaps via Tort Reform. It has become nearly impossible to become an OBGYN in some sections of the country (N. NJ, for one), to the point where a hospital I rotated at had to close their entire OBGYN program due to the overwhelming liability. (say what you want about whether malpractice insurance companies would fleece doctors anyway, and whether prices are really based on cyclical stock market cycles, etc…)

    There are certainly cases that have merit and should receive just compensation. However, I have heard of PLENTY of stories from the medical side where the cases were pure baloney and still were settled simply because it’s cheaper for insurance companies than fighting the case.

    I do not agree that people should not be able to bring claims in courts or that their pain and suffering should be limited by a court in terms of a financial settlement. But how about we limit how much of that “pain and suffering” can go to their lawyer? I also think that it’s about time that a panel of experts is put into place to decide whether cases are legitimate or not.

  42. LawyerontheDL says:

    I actually do medical malpractice defense – so I guess that I am biased right off the bat. The idea of a cap on recovery for pain and suffering doesn’t sit really well with me, although some sort of cap for people whose injuries aren’t permanent might work. What many people don’t realize is how much it costs to defend even frivolous cases. I currently am working on one where the man is insance – literally, was for a long time up to the alleged non-permanent “injury.” (As I recall he became itchy from a medicine) I would estimate that defense of this frivolous claim will cost at least $30,000.00 – and most of that is expenses – experts, testing, etc., not attorneys fees. If people filing truly frivolous claims were made to pay something towards an innocent defendant’s fees and costs, it may discourage wholly baseless claims.

  43. mac-phisto says:

    this is america. it is our god-given right to sue. taking away even the smallest vestige of that right erodes the very foundation of our rights. i don’t like lawyers. but i like greedy, crooked, self-serving corporations even less. & history shows that breaking the law, malpractice, & negligence are rampant within many corporations. doesn’t everyone know what an actuary does? these are people that calculate risk (including the cost of fines & lawsuits) into real dollars. companies make business decisions that cost the lives & happiness of people every day. if they are not suspecting the losses they encounter, they just need to get better at calculating the risk (or hire better actuaries).

    just to be fair, i’ll offer them a bone. hey corporations, you want some legal relief from the big, bad consumers? i’ll give it to you, but i want something in return. any corporation that doesn’t want to be sued simply needs to hand in their court-given right to juristic person status. without this status, they cannot be sued. of course, they cannot sue either, they cannot enforce a contract, they wouldn’t be able to “own” property or assets, & there may be one or two other implications. that’s a fair trade-off. if i have to give up my legal rights, then so do you.

  44. Don’t also forget that “Tort Reform” is a twofer.

    It’s a frequently-flogged GOP bulletpoint to crack down on trial lawyers, who have, in large parts, replaced Unions as a significant source of donations to the DNC.

    Additionally, it protects the corporate interests–particularly producers of products known to cause damages to their users, society at large, or the environment (e.g. guns, cigarettes, oil)–who frequently give more heavily to Republicans.

  45. facted says:

    @mac-phisto: I agree that companies often act in their own financial best interest, often at the cost of harming others. But what about doctors? (or anyone else sued for ridiculous reasons) Certainly there are corrupt doctors who aren’t always looking out for the patient’s best interests. Unfortunately, lawsuits don’t seem to separate them from doctors who toe the line and do nothing but help people day and day out for 30 years before getting hit by ridiculous lawsuits by people who want to blame someone else for their pain and suffering, or that of a loved one. And if you don’t believe ridiculous lawsuits in the medical realm happen, read up about it. It’s very common place, to the point where it influences what specialties people choose to go into (including the OBGYN example in my previous post).

  46. Sudonum says:

    Just finished reading the next post about the RIAA suing someone and trying to depose her 10 year old daughter. Now how many of you would support tort reform if someone were to sue the RIAA over their actions?

  47. sodium says:

    The medical malpractice problem has more to do with insurance companies losing money in the stock market, and then having to jack up premiums to pay their executives the high bonuses they’ve become used to. Then they get the doctors to go on protest marches to get the state legislatures to game the legal system in their favor.

    As a general rule, corporations (including health care providers) do what the bottom line dictates. In fact, if they don’t do what the bottom line dictates, they are subject to shareholder lawsuits. That means lowering quality control a little bit to save money, and then betting that the liability costs will be less than the manufacturing cost savings.

    Putting a cap on tort damages means lowering the corporations’ incentive to spend money on safety. Plain and simple. Part of what keeps us safe from dangerous products, industry practices, pharmaceuticals, medical practitioners, etc., is the threat of liability in the event that the unsafe practice causes someone to get injured. If we remove that threat from the equation, then starting tomorrow we are less safe from these safety risks.

  48. Trai_Dep says:

    At the risk of flogging a dead horse, the McDonald’s Coffee Case is the best case study for Tort “Reform”.

    At first blush, it’s the PERFECT argument for tort reform: careless old biddy spills hot coffee on self, sues BigCorp for 174.8 gaJILLION dollars, broken US legal system filled with no-nothing juries agrees. SAVE AMERICA FROM THIS MADNESS!

    …That’s what I recall hearing from the 24/7 commentary. And I totally believed it. It sounds SO crazy, SO perfect. Damn Lawyers!!

    Then you dig and realize: whoa. Point by point, the people decrying the case exaggerated or misstated the case. In fact, the jury was reasonable in its application of justice. I think the final amount was negotiated downward, but who won, who lost, on which merits, and by a large dollar amount, stands.

    Now, it’s the best case study for how Tort “Reformers” will say anything to get consumers to deprive themselves of their own rights.

    BlueGus: if you think that the case has been “argued to death”, perhaps that’s a synonym for, “hmm – perhaps they have a point there.” Sleep on it, and perhaps it can change your mind?

    PS: shout-out to everyone for keeping the conversation civil and on-topic. This has been one of the best comment threads I’ve seen on Consumerist!

  49. rhambus says:

    I think that a lot of the comments here are very well thought-out, but I am disturbed that once again, like with the Worst Company in America poll that for two years in a row now has become a political platform instead of choosing what company actually provides the worst products and services to customers (for all you guys know, Halliburton is great to customers), this has become a political fight. Since my original comment, I have seen few or none that addressed whether tort reform is bad for consumers. It might be bad for those injured by truly defective products, assuming that you feel that NOT getting a crapload of money for an injury is “bad.”

    The costs for companies to 1. make huge payouts and 2. avoid costly litigation in this country is immense. People on this website need to realize that these companies are not charities and are not going to take a hit on their profits because of lawsuits – they are going to pass that hit onto the consumer. After all, since tort verdicts and increased insurance raise costs for all companies, all companies can pass along the costs to you and remain competitive. In that way, it’s functionally like a sales or VAT tax – nobody can avoid it so they all pass it on to you. The vast majority of consumers never file a lawsuit in their lives, and they are the ones who pay. So leaving aside whether or not tort reform is holistically “good,” anything that lowers costs is likely to be good for consumers of that product.

    As for the coffee example, I probably shouldn’t have used it because I know the case has more merit than it appears to (although the fact is that the person still screwed up by spilling the coffee on herself – McDonalds didn’t sneak up and pour it on her crotch). If I drop a Craftsman chainsaw on my foot, I don’t sue Sears, and I would blame only myself if I was dumb enough to spill hot coffee on myself. Not everyone is that way, I know, but guess what – McDonalds made that coffee hot for a reason. And guess what that reason was – because consumers (that’s us!) preferred it! They didn’t do it to try to scald their customers – that would just be stupid. Now, because of that woman, your coffee is colder and less pleasing when you drink it. Is that better for those of you who use common sense with their coffee? I doubt it.

    But if this seems excessively cold consider this: If the speed limit was 5 MPH, we’d probably have nearly no fatal accidents. So how come we don’t enact that, even with a provision that, say, ambulances could go faster than that? It’s because sometimes, convenience outweighs even safety, taken in the aggregate. It sounds cold, but it’s just a fact of life.

    Oh, and for those of you who have fooled yourselves into thinking that there’s no such thing as a frivolous lawsuit, or that they always get thrown out, take a look at this article, for example (it was the first one on Google when I searched for “asbestos litigation fraud”).

    http://www.opinionjournal.com/columnists/kstrassel/?id=110

    Wake up, folks. These lawyers (of which I am one, although I don’t practice tort law) can indeed be as unscrupulous as you think.

  50. Trai_Dep says:

    heh. *blush*

    “no-nothing” should be “know-nothing”

    heh. *blush*

  51. bluegus32 says:

    @trai_dep: “BlueGus: if you think that the case has been “argued to death”, perhaps that’s a synonym for, “hmm – perhaps they have a point there.” Sleep on it, and perhaps it can change your mind?”

    Nope. my saying that the matter has been argued to death is an admission that I have made up my own mind and I doubt that it can be changed. I am usually a very open-minded person. But the McDonald’s hot coffee case has always sickened me. She placed a hot cup of coffee between her frail old legs. Her own negligence was the proximate cuase of her injuries. Which means that the jury should have attributed far more contributory negligence to her. In my opinion, her contributory negligence was TOTAL. The accident would not have happened but for her negligence.

    The extent of her burns, which is what people fixate on with the whole “it was hotter than it should have been” argument, is a red herring. She spilled the coffee in her own lap. In my book, that falls under the category of personal responsibility.

    And now, because of this lady, my coffee from Starbuck’s is always luke-warm. I have to order it “extra hot” just to get “regular hot” all because some old lady failed to recognize that hot coffee is hot.

    One last point — the McDonald’s coffee was not significantly higher than industry standard. In fact, the temperature of the coffee was dictated by industry practice and customer preference. It would be different if the coffee had been 300 degrees. But it wasn’t. It was within the acceptable consumer expectation range.

    The McDonald’s hot coffee case should have lost.

  52. mac-phisto says:

    @facted: i completely understand where you are coming from, but remember, the doctor is not being sued – his insurance company is. & while i feel for doctors (even though i have never met one that doesn’t drive a $50,000+ automobile), i could give a rat’s ass about insurance companies. we are force-fed this idea that lawsuits make insurance expensive. that’s complete bullshit. insurance companies are often netting billions of dollars in revenue at the same time they’re crying poverty. how do they do it? see, they take a healthy chunk from every risk pool, invest it OUTSIDE the insurance market (in stocks, bonds, etc.) & make money. somehow, this money is theirs. all the claims should have been paid out of the reserved chunk that wasn’t removed & reinvested elsewhere. if claims go above this reserve & cut into the executives’ bonuses, rates go up.

    WARNING! PIPE DREAM AHEAD:
    require reimbursement to the insured – doctors, drivers, whatever – dollar for dollar on earnings from outside investments & watch how cheap insurance becomes. max earnings on investment pools. i don’t know, do something.

    just don’t give up your rights. all they need is an inch…

  53. bluegus32 says:

    @mac-phisto: “but remember, the doctor is not being sued – his insurance company is”

    You are 100% wrong. The lawsuit is against the doctor. The insurance company merely provides the defense. But make no mistake about it, the insurance company is not the one being sued.

  54. ech says:

    Thus, the potential defendants want reform because they think it will lower their insurance bills (and I doubt that insurance companies will all of a sudden lower their rates because of tort reform).

    It happened in Texas. My wife’s malpractice insurance went down 10% the year tort reform went into effect.

    while i feel for doctors (even though i have never met one that doesn’t drive a $50,000+ automobile), i could give a rat’s ass about insurance companies.

    Meet my wife and my dad. Our most expensive car was $30k new and it has 136k miles on it now. My dad’s was $20k. In the malpractice insurance area, many of the bigger insurers are mutual insurance companies that are owned by the insureds, so profits are used to cut premiums.

    Some have proposed a system similar to one used in Europe, where malpractice cases are handled similarly to how worker’s comp claims are. This would be combined with an aggressive program to detect root causes of medical errors and prevent them – a program which the American Society of Anesthesiologists has been doing for years with great success in their speciality.

    It should also be combined with some protections for physicians. For example, if one physician makes a complaint against another, they can and have been sued for restraint of trade, so doctors won’t act to weed out the subpar performers. Even if the suit is dismissed, you are out the time, expense, and stress of defending a lawsuit.

    One study of closed malpractice claims with awards showed that 90% of cases had a real injury casued by the procedure. However, of that 90% there was negligence only 60% of the time. So, 46% of malpractice awards are for problems the doctors/hospitals/nurses didn’t cause. That is a broken system.

  55. Dr Scott says:

    @mac-phisto: I’m a pediatrician, and I drive a Honda CR-V. I’ve never driven a $50,000+ automobile, let alone owned one.
    I have never been sued, and hope to never be. I think I practice good medicine and have good rapport with my patients. That doesn’t stop me from paying $10,000 per year for malpractice insurance (a bargain compared to the OB-GYNs!). That also won’t stop someone from suing me. Perhaps from SUCCESSFULLY suing me, but not from trying.
    One in three pediatricians will eventually be sued for malpractice. There are a few bad apples out there, but one in three?
    Doctors who’ve been sued will tell you the worst part is not the legal fees. It’s the stress, the personal attacks from the plaintiff’s attorney, the questioning your entire career, and the reconsidering every clinical decision you’ve ever made and ever will.
    Also, I’m not a Big Corporation. I’m a solo practitioner, which also translates to sole proprieter.
    So where do I stand on tort reform?
    I don’t know. The data is conflicting. There are too many frivolous suits brought against doctors because someone wants to blame someone. At the same time, we can’t exclude the legitimate cases where justice must be served. Why not medical courts, or arbitration? You would still reserve the right to sue afterwards, but you’d better have a real good reason why you turned down the arbitration judgement.
    I do know this: before my state passed “tort reform,” I could only get my malpractice from one of two insurers. Afterwards, another company started writing policies here, and I switched and saved almost $4,000 on my premium.

  56. chickymama says:

    Another viewpoint on this (in regards to medical) is where is the responsibility of state boards to pull the medical license of bad doctors? If the claim can be made that a few bad doctors are causing medical malpractice premiums to rise then why does it take so long for states to pull their license if there are multiple complaints (in regards to Eyebrow McGee’s comment).
    A similiar situation happened at a local ob/gyn group practice. A doctor was accused by several patients of inappropriate touching/groping etc. It took a lawsuit by several of the patients before the state finally pulled his license and now he is no longer allowed to practice. A personal side note… I went to this particular practice for prenatal care of my first child and it sickens me that at around that time this doctor was doing this (he wasn’t mine). In my opinion I did not understand why my doctor there (and others) did more to kick him out. I refused to go there for prenatal care for second child.

  57. LawyerontheDL says:

    Just some interesting ballpark statistics on medical malpractice insurance:

    Average cost of insurance for an OB.GYN in NY is $100,000.00 per year

    There have been several cases involving infants suffering from birth related injuries exceeding $100,000,000.00.

    The average cost of defending a “baby case” is $150,000.00 and up.

    How does this affect consumers? In many areas, the number of OB/GYNs is dwindling. Also, the costs of obstetrical care is through the roof.

    I don’t know what the solution is – people whose children suffer injuries because of the negligence of anyone should be compensated, but there has to be some limit.

  58. @Sam Glover: “Unfortunately, there aren’t many–if any–cheaper ways of doing what the legal system does.”

    New Zealand manages (some) torts similarly to a workers comp system. It’s cheaper and faster — but there’s not nearly as much punitive punishment for really egregious behavior.

  59. facted says:

    @: one of the issues, esp. with OBGYN cases, is that sometimes it is the doctor’s fault, and sometimes it’s not and it’s not always easy to tell. Unfortunately, often these cases turn into pleas to juries who see a mentally disabled child and want to give the child money as if their condition is someone’s fault although it may very well not be (other than Nature’s, I guess).

    It’s a fine line sometimes.

  60. @bluegus32: “Maybe make attorneys’ fees subject to court approval, though, as we do for attorneys of minors.”

    Digging way back in brain — in, like, the 70s, lawyers fees (at least in some states) were set by state bar associations. You could charge no more nor no less than the state bar’s allowable range. It was struck down as … I forget, either an unreasonable restraint on trade or a monopoly. Can’t recall. So there could be constitutional hurdles to that kind of thing.

    Although I can’t imagine those hurdles would be nearly as large as the hurdles of attorneys screaming bloody murder. :D

  61. @facted: “But what about doctors? … Unfortunately, lawsuits don’t seem to separate them from doctors who toe the line and do nothing but help people day and day out”

    Part of the problem with med mal cases — and why most states are resistant to going to a “review board” before med mal cases can be brought — is that internal procedures in the profession, insurance companies, and hospitals have proven very weak at rooting out bad doctors. Doctors have been remiss in policing their own profession, so a lot of cases end up in court where the doctor should have been sanctioned by his own colleagues or disciplined by his hospital long ago.

    If internal controls were enforced and had teeth, far fewer med mal cases would have to get to the courts.

    One reform in med mal that is ridiculously successful and FREE is to allow doctors to apologize to patients for bad outcomes without that being taken as an admission of liability in case of a lawsuit. Doctors are generally counseled not to apologize in case of bad outcome (from negligence, accident, or just “humans aren’t robots, the therapy didn’t work as expected”) in case a court takes that as admission of error/negligence. When doctors ARE allowed to apologize, many fewer people sue. Patients feel they’ve been listened to, heard, respected, and “compensated.” Some hospitals DO encourage their doctors to do this despite lack of protection from liability and as a rule see an enormous drop in suits brought.

    Another one is “evidence-based medicine.” Med mal (and patient) insurers don’t actually insure based on facts — they insure based on past lawsuits. So despite the fact that fetal heart monitors in normal labors actually make outcomes WORSE, many malpractice insurers require them, so they don’t get sued for negligence for NOT using one in case of a bad outcome. Best practices in medicine should be decided by DOCTORS, not actuaries or lawyers.

  62. @chickymama: “If the claim can be made that a few bad doctors are causing medical malpractice premiums to rise then why does it take so long for states to pull their license if there are multiple complaints”

    There’s a professional reluctance to question another doctor’s clinical judgment when you’re not directly involved. There’s a “thin blue line” kind of thing where doctors are willing to believe other doctors’ denials of bad behavior because most doctors have themselves been accused by angry/upset patients of doing something wrong.

    And there’s a very human “not my problem” refusal to take responsibility.

    I also think the profession is still catching up with itself after health care reform (managed care) and the rise of hyper-profitable areas of practice (elective plastic surgery, say) that can lure doctors into practicing bad medicine. I’m not sure the state medical boards and other governing agencies have quite sorted out how to exercise their authority in this new world of medicine.

  63. @LawyerontheDL: “I don’t know what the solution is – people whose children suffer injuries because of the negligence of anyone should be compensated, but there has to be some limit.”

    One solution — if the doctor was not negligent — would be to have a better societal safety net for such people who will face lifetime disabilities. Many parents who recognize it was just one of those freak accidents feel compelled to sue anyway because they’re facing a lifetime of medical expenses and they’ve got to provide for that child’s long-term high-quality institutional care after the parents die. Without those economic pressures on the parents of disabled children, some lawsuits would be averted and others would be smaller.

    BUT — we’d be talking government social safety net. So you’d have to decide whether you want huge medical malpractice torts or bigger government.

  64. Trackback says:

    Well, it was my last day, and I thought the Consumerist could use a good argument. So I gave them one. Tort reform is a tough one, and that thread on Consumerist made me realize that non-medical malpractice doctors are in danger of getting caught up in a maelstrom of ill will towards med-mal cases.

  65. mac-phisto says:

    @sneedlemd: the $50,000+ comment was a little tongue-in-cheek. i understand that doctors work hard & deserve to be compensated. i find the status thing a bit funny…

    @bluegus32: no, i stand by my comment that insurance cos. are being sued. most doctors cannot afford $100 million lawsuits. lawyers know this. they sue insurance cos…the doctor is merely the vessel that allows them to hit the jackpot. obviously you can’t hang doctors out to dry, but i’m not for giving insurance cos. a free ride when they consistently reign in some of the highest profits of any industry.

    perhaps a middle ground – if doctors, hospitals, whatever could produce a low-cost, NON-PROFIT method of insuring their doctors AND providing for just verdicts for victims, i’m in. but as long as insurance remains a for-lots-o-profit industry, let them pay for it.

  66. informer says:

    This has become quite a debate in Hawaii as well, as doctors seem to be fleeing the state due to high insurance costs. This was in today’s paper:
    http://www.honoluluadvertiser.com/apps/pbcs.dll/article?AI

  67. Trai_Dep says:

    It strikes me that torts have become the last gasp for consumers since so many other planks of support/guardianship in our society have been neutered or allowed to wither away.

    * no baseline financial support if you’re disabled
    * a health care system that’s obscenely expensive, delivers less that the rest of the industrialized world and increasing at breath-taking levels above inflation
    * professional boards that are – to be kind – overly lax when policing their errant members
    * insurance companies that adapt rejecting/blocking good-faith claims as a profit center
    * a flat-lining of middle/upper middle class incomes to benefit the ultra-wealthy (top 1% or 0.01%). The Poor? Forget about it!
    * a coarsening of our society where everyone has to assume we’re on our own and can’t rely on each other; “free markets solve EVERYthing, ALways”

    Ironically, the Conservative/Corporatist world-view has contributed the most to these. Most of the incursions have been gradual but constant.

    The result is that – for many – suing the bast*rds is the only viable, rational option to take when some undeserved bad thing happens. And the same jerks that have hollowed out our safety net are the same people trying to strike out the last leg that, hopefully, none of us will ever need.

    > Tort Reform is a much larger issue than merely who gets to sue for what.

  68. mrwilson says:

    Although Sam certainly doesn’t need any help in articulating the anti-tort reform position (with which I generally agree), I wanted to make one additional point implicit in his and some others’ comments about caps on damages: Of all the ways one can do tort reform, caps have to be among the very worst, because instead of limiting the frivolous suits – which is a goal everyone of good will should want – caps limit the very most meritorious of cases. Caps do nothing to curb or prevent the small frivolous case, but instead limit the recovery of someone whom a jury has decided was harmed a great deal.

    (Full disclosure, I’m a plaintiffs’ consumer class action lawyer, but I spent six years representing large corporate defendants in class actions and other complex litigation.)

  69. ech says:

    @Eyebrows McGee: There’s a professional reluctance to question another doctor’s clinical judgment when you’re not directly involved. There’s a “thin blue line” kind of thing where doctors are willing to believe other doctors’ denials of bad behavior because most doctors have themselves been accused by angry/upset patients of doing something wrong.

    If a physician makes a complaint, they can end up sued for restratint of trade and defamation. My father was on a state disciplinary board for a medical speciality. A case came up where a prominent doctor was accused of false billing to Medicare and some other abuses. My father was followed by a private investigator (nothing found), was accused of being anti-Semitic (a close friend who was on the board of an Orthodox synagogue wrote the JDL to defend him), and was generally harassed.

  70. Greasy Thumb Guzik says:

    @bluegus32:
    No, the McDonald’s case is not the reason for tort reform. If you had read an earlier post & had read the articles on the suit, you would know that McDonald’s own consultants had repeatedly told McDonald’s that their coffee was too hot!
    McDonald’s reply to that was that they wanted the coffee to stay hot all the way to where it was taken to.
    Almost all home drip coffeemakers turn out coffee at LESS than 165 degrees. I just measured my Mr. Coffee & it is 160 degrees.
    McDonald’s coffee was always OVER 185 degrees, often over 190 degrees!
    150 is considered scalding!

  71. bluegus32 says:

    Greasy Thumb Guzik said: “No, the McDonald’s case is not the reason for tort reform. If you had read an earlier post & had read the articles on the suit, you would know that McDonald’s own consultants had repeatedly told McDonald’s that their coffee was too hot!”

    I will give you the same admonitiion I have given others — attack the argument, not the arguer. I am a highly experienced litigator. I read more material in a day than you do in a month. Don’t question my reading comprehension skills.

    As for your point — you seem to have missed mine. The question of whether the coffee was too hot is irrelevant. By focusing on the temperature of the coffee, one focuses on the damages portion of the liability equation. This is a common parlor trick that plaintiffs’ lawyers use to get your eye off the ball. It’s basically, “hey, hey, hey everybody, forget about the cause of the accident itself, let’s just look at the extent of the damages.”

    However, in order to prove liability for tort damages, one has to prove 1) duty; 2) breach; 3) causation; 4) damages. So, if you can’t prove that someone actually caused the accident, then it doesn’t matter what kind of injuries were sustained and there is no liability.

    Question for you: did McDonald’s do anything to cause the McDonald’s woman to spill coffee on her lap? The answer is undeniably, “no.”

    Think about it from this perspective, but for this lady’s negligence, would she have gotten injured? The answer is no. She is 100% at fault for spilling the liquid on herself. Thus, in my opinion, her contributory negligence to the accident is total thus absolving McDonald’s of any potential negligence on their part.

    As for your arguments regarding coffee temperature — you’re rather dead wrong. I haven’t verified the veracity of your statement that the McDonald’s coffee was 190 degrees, but I’ll give you the benefit of the doubt. According to the National Coffee Association of America, coffee should be brewed at 195-205 degrees and served at no less than 180-185 degrees. http://www.ncausa.org/i4a/pages/index.cfm?pageid=71

    This article is current as to today’s standards. So, as you can see, McDonald’s coffee was pretty damn close to industry standards.

    Your thoughts?

  72. Tonguetied says:

    We need to go to Loser Pays.

    It costs money to defend yourself against a bad lawsuit.
    It costs time to defend youselfe against a bad lawsuit.
    Gettting reimbursment in today’s court system is nearly impossible with even more expediture of time and money.

  73. Trai_Dep says:

    According to people familiar with the case (check wiki: http://en.wikipedia.org/wiki/McDonald%27s_coffee_case for sourcing), the jury did examine plaintiff’s culpability. She was found partially responsible, 20% to be precise.

    Bluegus, you seem to be advocating more on how you WISH the case was handled, in your world. Not in the real one.

    McDonalds wrote cost/benefit memos indicating that they weren’t concerned about adaquately warning their customers that their coffee was super-heated. They calculated that customer injuries were the price they (cough) had to pay to have the hottest fast food coffee. They refused to pay the woman’s bills and reasonable settlement offers. They forced her to sue and once the facts saw the light of day, a jury found the woman somewhat capable (contrary to your analysis), but McDonalds was more at fault.

    Refer to the wiki article for more – it does a good job of airing both sides.

    To the broader point – this case shows the “Tort Reformers” are all wet.