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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@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.
@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…
@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.
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.
@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.
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.
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.
@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.
@: 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.
@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.
@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.
@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.
@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.
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.
@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.
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…
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.
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.)
@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.
@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!
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?
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.
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.