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tort reform. discuss.(12 posts)

tort reform. discuss.bill
Jan 31, 2003 2:49 PM
This is a letter that I wrote to our delegate to the Virginia General Assembly. It's not about Bush's favorite bugaboo, medical malpractice "reform", but it could be. Not a month ago, a study came out about the appalling number of deaths and injuries caused by medical mistakes, the huge costs of the mistakes, and the relatively small number of these mistakes that are ever aired in the tort system. It wasn't done by no trial lawyers, either; I believe it was a group of state medical boards, discussing the impact of substandard medical care. It made the news, but because it doesn't jibe with what people think is going on, it didn't make much of an impact.
Don't tell me about the doctors leaving practices, either, because that is the product of a crunch between lowered fees for services because of health insurance pressures and increased insurance premiums -- it's a doctor profit crunch, it's a malpractice premium crunch, it's an insurance profit crunch, but it AIN'T ABOUT NO MEDICAL MALPRACTICE CRUNCH, BECAUSE NO SUCH THING EXISTS, and I defy anyone to come up with evidence that it does.
As a resident of your district and an Arlington attorney, I write to voice my opposition to HB 2754 and to explain my views on so-called tort reform.
Much of the public across the country has developed opinions fueled by well-financed, well-directed public relations and legislative efforts of insurance companies about the tort system. The words "frivolous lawsuits," "punitive damages," and "runaway verdicts" are on everyone's lips. The perception is that, but for a few exceptions, so-called trial lawyers are shaking millions of dollars from the pockets of good, decent folks right into the pockets of their good-for-nothing, let's-play-the-lottery clients and, of course, their own.
Expressions of these opinions, of course, are rarely accompanied by facts, because there aren't any, or, more correctly there aren't any that support the reformers. Where are the facts about an explosion in civil personal injury tort filings? Where are the facts about exponential growth of punitive damages in these cases in absolute, premium-busting dollars? Where are the facts about the amounts being paid out in personal injury cases having increased over time, adjusting for inflation, let alone significantly or harmfully increased? Where are the facts that, but for the odd aberration that makes the news (remembering that aberrantly low jury verdicts or aberrant defendant's verdicts rarely make the news), jury verdicts are out of control or that aberrations occur more frequently than they ever did in either direction?
The facts not only fail to support the arguments for so-called tort reform, but, when the data are available or when they aren't simply ambiguous, they tend to give the lie to the reformer's arguments. Growth areas are in business litigation, not personal injury. Punitive damages are rarely awarded, and, when they have been awarded, they usually go to punish commercial activity. Filings and verdicts in the run of the mill cases are down.
These reform campaigns follow two types of events -- they follow massive insurance expenditures having nothing to do with personal injury torts (natural disasters, cataclysmic disasters such as 9/11), and they follow heavy insurance investment losses having nothing to do with personal injury torts. Insurance companies don't want tort reform, they want profit reform.
Not only do the so-called reforms address problems that don't exist, they fail to address even the strawmen raised by the industry. Damage caps have nothing to do with curbing frivolous lawsuits. The courts control frivolous lawsuits, as they always have, albeit with varying degrees of success whose chances remain unimproved by the contemplated measures. Damage caps rob only the most grievously injured of just compensation.
In a trial, two sides step into a courtroom with equal opportunity to demonstrate the power of their posi
oops. cut off.bill
Jan 31, 2003 3:01 PM
In a trial, two sides step into a courtroom with equal opportunity to demonstrate the power of their positions, and a jury decides. No side has a monopoly over the process. Injured plaintiffs don't decide. Trial lawyers don't decide. We trust the people to decide; they don't always get it right, but they don't always get it wrong in the plaintiff's favor by a long shot, and that's the price of a free society.
Insurance companies want to stack the deck. Don't let them.
a minor issueDougSloan
Jan 31, 2003 3:29 PM
I'll add some more later, but don't insurance companies pass their costs (litigation and liability payments) on to the insureds through premiums? If so, what do they care whether a judgment is a thousand dollars or a million? It's all pass through, right? Then, of course, the premium costs are passed on to the ultimate consumers, patients, etc. Plus, insurers cannot pay punitive damage awards, except in very rare circumstances, so those aren't a concern to them, right?

Seems to me that it should be consumer/patients who should be screaming about high judgments, not insurers, as they ultimately pay for them.

Also, we should disclose that plaintiffs' lawyers have a huge interest in this (I'm one myself about 10% of the time). A third contingent fee of a million dollars is a lot more than a third of a thousand dollars. Plaintiffs' lawyers have more of a self-interest in this than anyone else. (But we aren't in it for the money, are we? :-)

insurance companies, of course, are not in the underwritingbill
Jan 31, 2003 3:45 PM
business. They are in the investment business. They underwrite risks as a means of amassing hige amounts of capital to invest. When investments tank, that tends to be when the loudest squawks are heard from the insurers about tort reform. So, to respond, they are not really passing on their underwriting losses, except for the catastrophic stuff that is much less sexy to talk about, they are passing on their investment losses. Plaintiffs and trial lawyers happen to be convenient whipping boys.
The other side of this is that consumers actually don't pay for underwriting losses to the same extent that they pay for investment losses. Of course, this is largely conjecture, because insurance companies don't reveal their operational financials the way other companies do, and they are exempted from aspects of anti-trust laws, as well, but it's based on pretty solid evidence of what kinds of claims are being paid in what amounts.
Doug, the average plaintiff's lawyer has rarely seen a case where there is more than $250,000 in general damages, let alone punitive damages, or maybe a small handful (the cases I've handled of that size are in single digits). It's about the injustice, it's not really about the money for most of us.
Jan 31, 2003 3:55 PM
Is the injustice that injured persons won't be fairly compensated, or that the wrongdoers will be less careful with less exposure? Could be both, I suppose. Insurance sort of cancels out the latter, though.

Is a cap alone wrong, or is it just the size that is a concern?

I realize that insurance companies actually make their money investing our premiums, rather than keeping the difference between premiums and benefits. I think they actually lose money, if you don't account for the time value of the money and investments. Nonetheless, I'm not sure you can separate investment and underwriting losses; they all come out of the same pot. If they lose too much on investments, then they have to hike premiums or reduce benefits to stay solvent. When there is a lot of resistance to hiking premiums, then what has to give? Rather than an evil motive, this seems fairly straightforward to me. The alternative is the companies become insolvent, and that's usually not good for anyone.

I'm not suggesting it's unfair for lawywers to make money or gripe about reduced potential for judgments. But, we must admit that we have a vital, direct economic interest in this.

I like chocolate tort (nm)ColnagoFE
Jan 31, 2003 3:22 PM
bill, maybe help to define "tort (not torte) reform"DougSloan
Jan 31, 2003 3:46 PM
What exactly is the tort reform we are talking about? It does vary from place to place -- non-economic damage (pain and suffering) caps; higher burdens of proof; med-mal screening panels; punitive damage caps; modified comparative fault (like Kansas -- if plaintiff more than 50% fault, gets nothing)...?

You're forgetting the fact that there are no facts anymore.czardonic
Jan 31, 2003 3:46 PM
Just emotion.

Anyway, you're fighting a losing battle by simply refuting the industries claims, no matter how soundly. The industry is tempting the public with a chance to (try to) line their own pockets and use their sense of "fairness" to do so. The industry is basically saying that they are going to be "forced" to raise premiums to pay for unreasonalbe torts. No one wants to pay more for insurance, and relatively few are vitims of mistreatment. Most people will benefit from (pipe-dream) smaller increases in insurance costs to them, the industry will benefit from higher profits (which are great for the economy and great for investors and therefore great for everyone!), and a few freeloaders might not get a bazillion dollars because the doctor left a C section scar above their bikini line. The insurance companies claim: it's your money, don't let them make us give it away to a few greedy individuals who are milking their misfortune for stupendous profit. That's a persuasive emotional argument.

I think you make a good case in your letter based on the facts, but it lacks a "green lining" and certain every-man emotional punch. I think you should point out that these lawsuits occur because doctors and HMOs are screwing up and people are getting hurt, a lot. It is hard for a legislator to rationalize voting against reform that most voters can be convinced to support out of financial self interest, unless he/she can give them a countervailing personal stake in resisting that reform. Remind them that these lawsuits occur because people are recieving inferior care, and that settlements are so large (don't bother proving they aren't large, everyone knows they are) because the results of that care can be horrific. Torts aren't just a recourse for a few that get hurt, they are reason for doctors to make damn sure that they are giving us the best care possible! Who doesn't want that?

Then again, what do I know? I'd keep everything that you have so far, but don't assume that your argument can rest on the "facts". Your asking the legislature to turn down what could be a lucrative cause. Give them something else they can cash in for votes.
Torts have nothing to do with docs making "damn sureeyebob
Jan 31, 2003 5:31 PM
that they are giving us the best care possible." Other things like care, compassion, professionalism, and, more basically, good 'ol respect for our fellow human's plight do. When I'm charting, do I think "Hmmmmm I might get audited or sued, better make sure that I document that last conversation that I had with Mrs. Jones." Yes I do. Did I have that conversation with Mrs. Jones because I was afraid I'd get sued or did I do it because that's what I'm supposed to do? Gee whiz, czar.

You missed my point.czardonic
Jan 31, 2003 6:03 PM
I was trying to offer a counter argument to the "fairness" red-herring. People tend to believe that reprecussions inspire people to avoid transgressions. I don't rob banks because I think it is wrong to steal. I wouldn't do it even if it wasn't technically illegal, but I am not going to get all bent out of shape because the law is there anyway. Unfortunately, some people do rob banks, and the sad fact of the matter is there are at least a few lousy doctors out there who practice anyway. We need recourse for when people don't do what they are supposed to do because there are always a few who won't.

No offense intended, but your point is well taken. I hadn't considered that the argument would be offensive to doctors.
I'll tell you what, as a lawyer, I can't say that the fear ofbill
Feb 1, 2003 8:30 AM
being sued, or, more correctly, what I will have to show for my efforts if a situtation goes south, hasn't made me, at times, a better lawyer. Sometimes if you know that the stakes are high you try just a little bit harder to find a way out. May not work, but you try.
I don't think that the fear of malpractice is some kind of prime motivator for good medical care. I do think, however, that it leads to better risk management systems, efforts to remain better educated, and maybe a little less bad risk-taking (if I try this procedure myself instead of calling in a real expert, how will I explain this?).
I've represented doctors and sued them. I was personally ambivalent about both ends -- in virtually all my cases, I felt sorry for the doc's that largely were just trying to do their jobs but were not perfect and achieved a bad result, and I felt bad for the hurt individuals who didn't understand why they had to suffer from a doctor who may have exercised acceptable but not exemplary judgment or that they had to be on the wrong end of statistical outcomes for an acceptable procedure when maybe there was technology and medicine that was not tried that may have given them a better result. Doctors don't have to be perfect, they have to be acceptable, and that's what the jury instructions say, and doctors win on that basis. None of these cases were clearly frivolous or chrystal clear malpractice, which is how most cases are.
An aside.eyebob
Jan 31, 2003 5:35 PM
Why are the Republicans beating this drum? Are there stats that tell us that if we cap claims that, indeed ins. companies will be better able to control their costs? Seems to me that the "state's rights" Party wants it both ways with this issue. Let's de-regulate most industries, but lets regulate the rights of plaintiffs. Huh? At least be consistant. This smacks of big money donations warping Republican thought.