The Finch Formerly Known As Gold

3 January 2004

Tort deform

Bruce talks about slapping a cap on damage awards in malpractice cases:

If a doctor commits a grievous error in your care you want to have the ability to receive compensation for that error. Do we really want to say that all errors are only worth $250,000 as one federal bill would have it? Think of your life and what its worth. Now think about the burdens your disability would have on your family should you lose your ability to work and care for yourself and you were only able to recoup $250,000 for that injury.

The drive for Tort Reform will not keep the insurance companies from looking for new ways to make a bigger profit. Remember that every business is a growth business. They just see paying out claims as a drag on their profitability and this rush to limit awards is a way to boost profitability at the expense of hurt people. They are punishing doctors as a way of putting pressure to get the legal action they want from politicians.

(Emphasis added.)

What we always hear about are the truly bizarre cases — Cam Edwards talked about one this week on his radio show, some woman who suffered burns after spilling her coffee and sued Starbucks — but using the man-bites-dog theory, I have to assume that these are the exception rather than the rule.

There are, indeed, too many lawsuits, and many of them are indeed frivolous; but the truly useless suits can be handled with a loser-pays system. And thinning out the docket is, I think, the most important "reform" that needs to take place.

The solution to high malpractice awards is simple: eliminate malpractice. The problem arises when you try to pin a workable definition onto the word, since medicine is at least as much art as it is science, and there's still a lot we don't know about everyday bodily functions. Sometimes all you can do is make an educated guess. I'd hate to think I could be sued for guessing wrong.

On the other hand, outside the medical realm, sometimes it's clear that bungling or malfeasance is at fault. Here's a comment from a page linked by Bruce, posted by Angry Bear, that cuts to the chase:

My first thought was, "if frivolous lawsuits are so rare...why is there such a vociferous tort-reform movement?" But then an answer suggested itself: the issue is probably not so much the awards themselves as the actions that prospective awards deter. For example, action X may not be profitable if there's a 1 in 100 chance of getting caught and having to pay $5 million. But if the cap is $250 thousand (with the same 1/100 chance of getting caught) then action X may be profitable. (X represents things like polluting or not testing for safety.)

I hadn't really thought of it this way before — that tort-reform isn't necessarily about avoiding big judgments for existing actions, but rather changing the range and extent of activities that firms can profitably undertake.

Actions, conservatives are fond of saying, have consequences, and indeed they do. There's no reason that corporate entities should be exempt from the consequences of their actions, or to have their liability artificially limited, when individual persons are granted no such exemptions. The argument is made that numerous damage awards can destroy a company; I suggest that if a firm has actually done something to justify numerous damage awards, it may well deserve to be destroyed.

Posted at 10:57 AM to Political Science Fiction


You bring up a few good points on this issue. So what can we do about it? Part of the problem the company just raises their prices to cover the suits and the consumer ends up losing. Food for thought. Going to have to devote some time to this.

Posted by: anstranger at 4:01 PM on 3 January 2004

I don't necessarily think a cap is the best idea, because there are legitimate cases, but malpractice suits are many and very very frivolous. That every doctor has to worry about this and carry a great deal of insurance has caused huge costs to the medical industry, by extension to health care, and by extension to all businesses and therefore the economy at large. In short, a cap may be a flawed solution, but it might be a good starter. And I say this coming from the perspective that a bad solution is worse than none at all, but when so many cases are frivolous, this could really clamp down on that.

Still, there has to be liability for situations like cutting off the wrong leg.

The best solution, I think, would be to establish review boards at the local level to determine whether a case was actionable. If a doctor missed a difficult or questionable diagnosis, that should not be something to fault them for unless it's a strong pattern unique to that doctor. If they screwed up in a rather horrific way, it should go to trial.

I like at least that we're starting to deal with the problem, and the way we've started has some merit.

Posted by: Lummox JR at 11:34 PM on 3 January 2004

An independent review board might be a good compromise. What we should realize is that alot of cases get thrown out. True, many people file frivilous lawsuits but many are dismissed out of hand for being groundless. Those that are seen to have merit and the evidence proves negligence should be given due process, which includes granting a reasonable award for malpractice.

The beauty of the jury system, or its flaw, depending on how you look at it, is that even most normal people, no matter how complicated the subject, can tell right from wrong.

I think the legal system functions fine, but right now its been a pain in the neck for insurance companies that need to reduce expenses -- payouts.

CG, thanks for giving this matter some more attention.

Posted by: bruce at 11:44 PM on 3 January 2004

Oh, and what we should realize is that we get only a fraction of the whole story, the jury gets to hear more than we do, and its their opinion that matters, not ours.

Posted by: bruce at 11:45 PM on 3 January 2004

Speaking as a spouse of an attorney with a couple of med mal cases on her plate, a cap, with its one size fits all approach, can be as unfair as allowing frivolous suits to proliferate. She currently has a pair of maternity suits (one dead baby, one dead mother) where the neglect was purely and simple due to cost considerations on the part of the hospital (insufficient/poorly trained staff). The cost/risk theory would seem to apply here.

Posted by: The Prop at 9:35 AM on 4 January 2004

I don't think that cost considerations can be ignored as important factors in what kind of care people get. People should have a way of fighting back when those cost cutting measures affect the care they get, to the point of putting them in danger. Of course, like the comment CG quoted capping damages limits the liability for undertaking measures that would put people at risk. In other words, taking risks with people's lives has less risk so they will do it more.

Posted by: bruce at 11:15 AM on 4 January 2004