Third Party & Independents: Archives

tort reform is another funny area for conservatives and liberals. Liberals generally want the federal government to make everything uniform, but then must make arguments that that the federal government should not be setting state tort standards. Conservatives generally think the states should be able to choose how they govern themselves, but then want uniform tort caps. You can notice both conservatives and liberals turn themselves inside out on the federalism issue when it comes to gay marriage as well. Where you sit is where you stand, i guess…

I think the general problem with torts is PUNATIVE damages. There is absolutely no reason why someone should get a windfall from a jury more than their injury would deserve. Compensatory damages make someone whole from the injury they suffered- they deserve no more and no less. If we are gonna have punitive damages for deterance, they should not result in a giant windfall for plaintiffs and their attorneys, they should go into a general fund, and SHOULD be capped. There is no rational manner in which punitive damages are assigned- its basically how angry a lawyer can make the jury. However, unlike Bush and most liberals, I believe in a small federal government. As a result, I think every state should, on its own, adopt punitive damage caps (As many have).

David,
Well said.

How I wish the Bush administration were using such proposals as negotiating ploys, an opening position which would result in a wise compromise. As Misha notes, there are ways to discourage frivolous lawsuits and absurd punitive rewards, while insuring unscrupulous business practices are held in check. Like most people, I would agree that issues such as tort reform and social security could use some tweaking.

Unfortunately, the Bush administration does not seem to operate as if they taking an opening position, and working towards a fair compromise. They tend to assume an extreme position favorable to a major contributor, and stay put. The result is that nothing happens. For an administration with a legislative majority behind it, the Bush years have been notable for their lack of accomplishment. One exception comes to mind; the medicare bill. But with an exception preventing the government from using its volume purchasing to extract discounts- another example of an enormous payoff to a major contributor- the results are very unsatisfactory.

Misha, the awards may sometimes be large, but, that fact stands side by side with the fact that civil suit attorneys on average have an income about the same as all other attorneys.

So, your apparent impression that civil suit attorneys are getting more than their due, does not stand up to the facts.

Second, how would anyone be able to stand up to the money and power of Ford Motor Co. or Glaxo if the rewards for doing so did not warrant the risk. I think you believe that wages should be appropriate and supported by supply and demand forces. Why should civil suit attorneys be excepted. They lose far more cases than they win, and the ones they win, often require inordinate costs in detective and research fees.

There was a movie about a waitress who sued an energy company in California I think, which fairly accurately depicted the risk reward relationship of taking on large corporations involved in willfull wrong doing.

phx8, good comments. I agree. A number of Republicans in the Congress are resistant to the Administration’s overhaul proposals on Tort reform, Soc Sec., and tax reform.

We will have to see how much political capital the President actually has, despite his rhetoric of landslides and mandates.

David,

Putting aside for the moment whether or not this is the best way to address health care costs, doesn’t it just make sense to put caps on how much someone can sue for? Don’t we have the same situation now in criminal court, with minimum and maximum penalties to prevent juries from being to lenient or harsh? I would think that this would be a good thing to apply to our current tort practices simply because it is the right thing to do.

David,
I think you spelled out pretty clearly that the answer is:
NO!!!

The one thing you left out of your article is the unconstitutional aspects of tort reform. The Fifth Amendment gives us the right to due process of law whenever we are deprived of life, liberty or property - therefore, Dubya has no legal leg to stand on in trying to push this through.
And, as Misha and phx8 alluded to, there are other ways in which frivolous lawsuits might be reduced without resorting to abridging the right the seventh amendment gives us - the right of trial by jury. Putting caps on punitive damage awards is in effect allowing the government to limit a jury’s intention to award money to a plaintiff who has been seriously injured or permanently deprived of normal physical functions by an individual or business. Nor does it allow that jury to demonstrate the extremely serious view they take of that individual’s or business’ culpability and/or negligence over what caused the plaintiff’s injury.

Overall, I look at this subject as just one more example of this administration’s diabolical tendency to attack our Constitution, and as usual, it is coupled with their shameless desire to constantly protect the wealthy rather than We the People.
And as you pointed out at the end of your article, he has also once again decided to couch this subject in terms of False Crisis-speak.

I think its bloody ironic if you consider how they used images of wolves in their ads to discredit John Kerry during the election, when what we actually have is “The Boy Who Cried Wolf” for a president.

Rhinehold, let’s say my local ma and pa equipment rental co. rents me a floor sander with a short in the wiring which, upon turning it on, electrocutes me when I try to use it. Then let’s say my 911 call and ER services cost $3000. Then I have $1000 in lost wages while recovering. My court costs are $400.

Total losses $4,400. What is a fair amount to sue for to compensate my attorney for taking on this case? Who is to review their earnings and determine if they are making too much or too little money from representing folks like me? And if we are going to cap attorney’s fees, why shouldn’t we cap profits for rental companies? All company’s and corporations?

Now, what if that rental company has 12 suits a year brought by renter’s due to lack of due and appropriate maintenance of their equipment?

What if the Rental company has determined that it will cost them $45,000 a year to do maintenance on their bobcats, cherry pickers, and floor sanders, etc. and under tort reform with caps, their cost to pay the lawsuits only comes to $30,000 per year. Should they be allowed under the President’s tort reform to continue to injure their customers in lieu of the more expensive maintenance program?

What about GM or Ford Motor? Should they be allowed to continue sell a known defective and dangerous product making more profit by paying law suits than by recalling and fixing the 100’s of thousands of vehicles with the defect?

The point of punitive damages is to communicate to the company, individual, or corporation that willful negligence which harms others is not affordable and they should discontinue their current negligent behavior. That can only be communicated if their are no caps.

And what of pain and suffering? Should it be limited to 10 or 20% of actual damages and costs? Should it be the same for a lost digit and an 80% bodily burn victim left without a face, married life, and the joy of children because of the nature of their injuries?

It is not easy to prove willful negligence. In fact, with larger companies and corporations, it can be impossible since they have cadre’s of lawyers covering the tracks that would expose them in a suit to being proved willfully negligent. And it is only somewhat easier to prove contributory negligence, regarded as a lesser wrong than willful negligence.

Caps may not be the best answer, but, I have yet to have heard of a better one for insuring that profitability does not become a reward for injuring and killing innocent consumers as a standard practice of conducting business.

As for medical personnel. Relying on the hypocratic oath to do no harm is obviously insufficient to motivate many in the medical industry to exercise due diligence in the treatment and care of their patients who are often entirely helpless in the hands of their caretakers.

It says something when statistics show Friday’s to be the worst day to have surgery done. It may be alright for a dock worker to daydream about the weekend and load one less pallet on the truck that day. But, it is quite another for doctors to remove the wrong limbs or organs on Friday while focusing on their extra-marital affair or golf game in Barbados, to come on Saturday. Our society is becoming tolerant of such behavior writing it off to statistical anomaly, rather than what it really represents, professionals asking for the public’s trust while failing that trust in significant numbers.

As the article points out, doctors are likely far more concerned about having their manner and nature of health care pored over in a public venue than they are about malpractice insurance premiums. And if the premiums are the problem due to increased risks, let the insurance companies cap the amount of risk they will tolerate before refusing to insure a physician or hospital which develops a very bad record negligence.

It amazes me that Kavorkian is jailed and loses his medical license for helping his patients, while others are permitted to injure their patients again and again through negligence with no threat to their license to practice, only higher premiums for insurance.

Tort reform and health care are closely related.

I had the experience of getting hit by a car while riding my bike in Norway. Both the health care and the liability were very different.

Let’s start with liability. In Norway you are limited to actual economic damages and you probably don’t need a lawyer to collect. This means people don’t have the same incentive to lie about an accident. The woman who hit me reported the accident. I was in the hospital unable to think about such things. When the police showed me the report, it was what I thought happened too. The woman just honestly said she didn’t see me and it was her fault. Norwegians, as a group, as the most honest people I have ever seen. That may have had something to do with her veracity. But she also had little incentive to lie. Even if I decided to sue her, the probably payouts would not be high. In the end her insurance company paid for my bike, a new set of cloths and two weeks of sick leave. In the U.S. you have to worry that a little scrape will cost millions, so nobody admits guilt.

One reason liability is low is national health care. My experience with European health care is that it is not as good as good American care, but better than the care an uninsured American would receive. It is, in other words, good enough.

So, I kind of like that situation where you generally can’t benefit from suing anyone and you get decent health care.

I don’t think the Scandinavian system would work in America. I love my country, but even I have to admit that we are a nation of complainers. We would demand so called better health care and we would want high compensation for injuries. But the connection is the same. If you want better access to medicine, you need to limit liability and if you limit liability, you have to get better access to health care.

Jack, you raise a very important congnitive distinction that SHOULD be in our tort legal system. Namely the difference between accidental liability and willfull negligence. It is not a clear hard line between the two, but at the away from the center, the difference is huge.

The lady was inattentive and struck you. Therefore her negligence was accidental, without intent to harm. On the other hand, you have Ford and the Pinto, or PE&G, or the tobacco industry who planned and willfully intended to profit through the injuring of others.

In the case of accidental negligence, I see little to no need for punitive damages, unless, there is a history of repeated accidental negligence. In the case of willful negligence, however, corporations can’t be sent to jail.

Therefore, the only punishment that can effectively deter them from their errant willfullness is punitive damages which make the willfull negligence unprofitable and force the management to be accountable to shareholders for loss of profitability resulting from punitive damages. IMO tort reform should acknowledge this distinction and leave unchanged punitive damages in the latter case.

But the punitive damages should be fine that goes to the general welfare, not a windfall to the lawyer who found the client to sue the company.

The problem is not so much with the valid cases, but with the fishing expeditions many law firms engage in. They sue lots of companies and play the numbers. Entrepreneur activities are useful in most areas of life, since it increases the general welfare by increasing the size of the proverbial pie. In the law, it is a zero sum or losing game. Currently the cost of fishing for lawsuits is low cost. It should be higher.

Sometimes firms just pay off clients who don’t really have a case, but could cause trouble or bad publicity. As often, they play defense. That is why you have all those humorous warnings on products. You have to be warned that your hot coffee is hot because of the famous case against McDonalds, where a woman who evidently didn’t know that burned herself, for example.

If we make the loser pay the reasonable court costs of the winner, we will get rid of a lot of these problems. Lawyers like to call this the English rule to imply that it is only in England. Actually, it is the general rule and only the U.S. is behind the curve on this one.

Great article!
I see the insurance companies as a huge part of the problem. The ability to buy liability insurance eliminates the deterrence or career-ending effect of lawsuits, instead making everyone pay instead of those at fault. It is not the actual cost of paying malpractice lawsuits that is forcing doctors out of high-risk fields, it is the cost of malpractice insurance.

Whatever internal policies insurance companies have to not insure offenders (I assume, like raising rates if found at fault,like with car insurance) must not be working, considering the small percentage of doctors who make up the major percentage of defendants.

I also feel that the mere presence of insurance provides an incentive to sue. Insurance companies can settle rather than taking their cause to court, becuase the cost is born by many. Likewise, their ability to pay multimillion dollar damages allows such awards to be given, raising the cost of health care significantly, as individual doctors could never pay that much, but each doctor with insurance pays a portion of the huge payouts, and then passes on the cost.

I know that insurance is valuable and protects doctors against frivolous lawsuits and honest mistakes. How about a system where insurance is able to pay for compensatory, but not punitive, damages? That way the punitive part would affect the person it was supposed to affect, have a deterrent effect or prevent further practice without huge payouts, could be individualized to reflect accident or negligence, and would decrease overall costs significantly.

I also like Jack’s idea about making the loser pay the court costs.

Jack said: “But the punitive damages should be fine that goes to the general welfare, not a windfall to the lawyer who found the client to sue the company. “

NO! Jack. Your comment reflects ignoring the fact that civil trial attorneys do not make significantly more than other attorneys on average. This fact points directly to the punitive damages they currently receive are crucial to their being able and available to assist the injured and harmed in civil courts.

Remove the percentage of punitive damages which go into the attorney’s pockets and you will effectively create a shortage of attorneys to represent the injured and harmed. Remember, because their incomes are roughly equal to other attorney’s, those awards afford them the ability to provide representation to plaintiffs who for whatever reasons, lose their case. The attorney bears the cost of the losses. Remove that income from attorneys, and plaintiff’s deserving and needful of representation will not be able to find it.

Brian, great thinking on this issue. I especially applaud your idea “where insurance is able to pay for compensatory, but not punitive, damages”.

That is an idea with tremendous merit. Recoveries from the defendants can still compensate plaintiff’s attorneys but, reduce the risk and actuarial demands on insurance companies and hence, the premium payers, and hence again, their customer’s costs.

David,

Good topic for debate, however, it hard to debate the merits of a bill or law that hasn’t been put on paper yet, proposed but no ink.

I think there should be some reforms to the tort system.
Class action suits and judge shopping are the biggest problem. I’m not an attorney, but the game works something like this;

Find someone that was harmed by a large corp. whose business crosses state lines(now its federal),You already know where the most liberal judge is so you advertize for cliants in that state, find one and BINGO!! you’re in, you know that judge will say the case has merit and will grant a jury trial, now advertize everywhere and get people to sign into the class action suit.
You get a few hundred or thousand to sign up and then file your suit in the liberal judges district. Now the big corp. with deep pockets will settle out of court rather than go to trial, all the harmed “joe Bumpkins” wind up with a couple thousand or less, “slimeball bottom feeder” gets millions (33% of everything).

Everytime you buy a ladder,lawnmower,chainsaw,car, hell anything, you pay for it.
The reason medical comes into it is because ins.companys/ hospitals/drug companys most always have business that crosses state lines and have deep pockets.

I have friends that are lawyers and judges, off the record even they admit its a game.

As far as “Ma and Pa rental co.” goes, you could never get more than they have ins. to cover, any attorney knows that. If you have really been harmed, contact Ma and Pa, their attorney will contact you to settle it and pay you just compensation, hire a good attorney and pay them the $250 an hour to make sure you’re not getting cheated and any settlement covers future medical exp.

Again, great article David.

Beagle, ambulance chasers arose with the law banning attorneys and physician’s from advertising being lifted. I don’t know why that law was changed, perhaps, their were very good reasons. But, the idea of lawyers advertising injuries sueable, and asking for plaintiffs to call them, seems to me to be begging for the kind of criticisms now flailed at the tort system.

Excellent article and ensuing discussion. It seems that a lot of people on both sides of the debate could agree that if we were building a system from the ground up, we’d probably choose something different than what we’ve got. The pro-tort reform argument that I was surprised didn’t get brought up was the one about the hidden cost of doctors practicing defensive medicine. I’m inclined to be suspicious of it, but haven’t the first hand knowledge to debunk the claim.

I would reject any plan that called for any part of a settlement going into a “fund’!

Look at the countless billions from the tobacco settlement. Did that money go to help pay for someone who got cancer? If they get sick and cant work do they get any medical treatment?
NOOOOOOOOoooooooooooo the people harmed get nothing! The states got a cash cow to pitch into their general fund. The states were never harmed, they make money off every pack sold.

The state of Michigan gets $2 in taxes from every pack sold, that doesn’t count the sales tax or the millions they get from the tobacco settlement every year!
Which state has the highest percentage of smokers per-capita?, you guessed it, Michigan at something like 25-30% of adult population.

Sorry David, I’m off topic and venting, but this crappy deal was set-up under the current tort system that I think needs reforms.

Beagle, great points. And actually on topic. The tort reforms could affect suits filed by the government against corporations as well. The single greatest blunder ever, was for the governments NOT to channel the funds from tobacco suits directly into smoking cessation clinics, assistance, counseling, etc. The dollar rewards on that investment would have been huge. Instead, with the money has been frittered away and smoker’s will continue to cost the states 100’s of millions of dollars through medicare and medicaid due to their lack of opportunities to get assistance in breaking their addiction.

Huge blunder. HUGE!

Walker, defensive medicine should flow directly from the Hypocratic Oath to do no harm. It should not take law suits by the maimed, injured, and survivors of malpractice to force defensive medicine.

Below is a link to the full article that the following quote was taken from. This is an excellent idea that needs further discussion to help reduce overall medical malpractice insurance costs and reduce excessive jury awards.

http://cgood.org/learn-reading-cgpubs-opeds-34.html

Courts should provide reasonable recourse to patients who have suffered due to malpractice. But they also should defend doctors who have acted professionally against the root of their problem: lawyers. To do this, we need a new system of medical justice. One solution is to let medical experts decide malpractice cases. We already have specialized courts, such as patent courts and family courts, which deal with custody issues. A few states have courts that focus on mental-health and treatment issues. Their goals are to divert mentally ill misdemeanor offenders to treatment programs rather than jail when appropriate. Similarly, in states with drug courts, judgments are based on medical considerations, not just legal ones.

In a health-court system, judges with medical expertise could objectively determine whether legitimate malpractice has occurred. Trial lawyers would not be able to manipulate the emotions of qualified and knowledgeable judges, as they now do with jurors. Doctors who have not acted improperly could be confident that judges who understand complex health issues would decide their cases. Patients who are dissatisfied with the outcomes in a health court could take their cases to a civil court, but they would have to present the findings of the health court to a civil jury.

I realize that some of you will attack this plan simply because it comes from Newt Gingrich, but if you can get past that there is great merit in his ideas.

As for the tobacco issue, with the Surgeon General’s warnings on each pack and the flood of information reported in the media of the dangers of smoking, I would dare say that no sane competent smoker could deny knowing the harmful effects each time they light up. People who knowingly continue to partake of harmful practices in total disregard for the known dangers do not deserve the enormous settlements given by juries.

I know the arguments that the cigarette companies manipulated the nicotine content to keep smokers “hooked” but, that is a crutch for someone who does not have the will or desire to quit. If these smokers who end up with cancer or emphysema truly wanted to quit smoking, there are numerous doctors, clinics or over the counter products to help kick the habit. The $3 to $6 a day they spend on cigarettes would go a long way toward paying for the needed help to quit smoking.

Personal responsibility must play into equation and in these massive jury awards I cannot see where an individual’s responsibility for protecting their own health is being considered. By giving multi-million dollar awards to individuals who knowingly put themselves at risk for these deadly diseases, we tell them to go ahead do what ever makes you feel good, someone else will be made to clean up your mess later.

This is no different than if a skydiver hooked on the adrenalin of jumping out of an airplane was to sue the pilot or his instructor for his injuries when he lands in a tree. Both the pilot and instructor would have contributed to his addiction by introducing him to the adrenalin high. And yes, I realize this is a rather far reaching analogy, but a fairly accurate one nonetheless.

Kirk, we have a lot to talk about. First off, I have always maintained an immense respect for Gingrich’s intelligence. He is one of the brightest politicians I have ever heard of. I have mostly opposed his politics and values, but, he is an immensely successful problem solver with a proven track record.

That said, his proposal has a great deal of merit. There are some safeguards that will need to be put in place, but, those are details. The thrust of his proposal great.

Now, on smoking and smokers. Look, I was born poor, excelled in the military, put myself through school working full time and going to college full time. I have built my own house from the ground up with no hired contractors and with only the help of books and the hands of my wife and young daughter. I say this to portray to you, that I am not an undisciplined or weak of will person. I have smoked cigarettes or a pipe since I was 13 years old, I am about to be 55. I have CPD and the early stages of emphysema. I have earnestly attempted to quit more times than I can recount. I have spent many, many hundreds of dollars on the smoking cessation aids. Yet, to this day, I am still a smoker.

What non-smokers don’t realize in its entirety is the extremely complex physical and psychological addiction smoking is. And like other addictive drugs, the level of addiction and the facility with which different people can quit, is very highly variable. The body-mind chemistry of some makes smoking far, far more addictive than to others, and hence, quitting, far, far more difficult.

Yet, all this evidence was lost on lawmakers who utterly failed to divert that money where it would have done the most good. Smoking Cessation programs and clinics. I have looked for clinics that I could check into for 4 or 5 days, my hump period, where I could not check out, and where smoking behavior would be substituted by other more healthy behaviors. You know what, there are very few, and the ones that do exist, are by far out of my financial reach at this time.

So, I have to take issue with your assessment that smokers who have tried and failed to quit, somehow are weak or otherwise lacking in character, intelligence, or desire. It simply is not true. At 13 I could go into any store in Detroit and support my habit. Everyone I knew around me smoked. Only my gymnastics coach advised me not to for health reasons. Everyone else I knew, smoked. For a 13 year old, it appeared to me there was no harm in it. It wasn’t until I first tried to quit for a girl friend when I was 25, that I realized I had a problem. She left, and I kept smoking despite my wishes that it had been the other way around.

I have quit many times since, only to find myself acting like a reformed alcoholic under tremendous stress, rationalizing, denying, sneaking, hiding and otherwise making myself more depressed by my own behavior which increased the desire to find relief from the cycle by just plain grabbing a cigarette and dealing with it all another day, so that the rest of my daily life could be normal, productive, and worthy of some self-respect for getting stuff done and acting like a reasonable person again.

It really is just too easy for the non-addicted to ascribe character flaws to those who are addicted whether it be alcohol, heroin, sex, or nicotine. Some will be able to kick relatively easy, others, not so easy, and for still others, it will be the struggle of their life, and they will never be quit, they can only hope to abstain with constant effort.

David,

I can sympathize with your plight, as I am a reformed smoker myself. It was indeed a very difficult habit to kick.

No one forced me to light up that first cigarette or any of the subsequent cigarettes that I smoked. I was a choice I made of my own free will. Regardless of the nicotine levels in the cigarettes I smoked, it was me who decided to buy the pack, open it, put the cigarette in my mouth and light it. Why on earth should I expect someone else to compensate me or my family for my poor decisions?

I would be willing to bet that if someone held a gun to your head telling you that if you smoked they would blow your brains out, you would not light up as long as that gun was there. The problem is that smoking will not cause instant death. The consequences are not felt for years to come making it much easier for us to ignore or justify to ourselves continuing the habit.

Kirk,

My point with the tobacco settlement wasn’t the right/wrong or if the suit had merit, rather the fact that the money didn’t go to the persons harmed. It went to states and the lawyers that became rich from it.

If the current tort system allows that, yes..it does need reform.
The problem with the legal system and laws is they are written by lawyers!
If I were king….every law would have to be written in “layman’s terms”, not for stupid people, just so that the majority of people understood what it said.

Poll your local highschool seniors and ask about tort reform.

Some will say cherry, some blueberry, ALL will likely think its a pastry!

As far as smoking goes, biting your fingernails is a habit, smokeing and tobacco are an addiction and for some more powerfull than heroin.

Many great studys are in text about that and you can find them online.

Beagle,

I understand your point and I agree that lawyers getting 35% to 40% of the amount awarded by a jury is ludicrous. Payouts like that are what drive lawyers to take less than meritorious cases to court in the first place.

My point is that with the tobacco law suits, the smokers harmed themselves. No one forced them to start smoking. Since their habit / addiction was started of their own free will, they should not be awarded a dime in litigation. In fact judges should have thrown the cases out of court and told the smokers to take responsibility for their own actions.

We now have people suing fast food restaurants for making them fat. Again no one forced them to eat the cheese burger and super sized fries. They stuffed their faces on their own and need to take responsibility for those actions.

When it comes to medical malpractice or product liability law suits, there is absolutely nothing wrong with an injured party being compensated for their injuries. However, many jury awards have gotten totally out of hand. If the injury is caused by a doctor’s / corporation’s intentional actions or purposefull disregard for the well being of the patient / consumer then as far as I am concerned they should be sued into the poor house.

My problem is with doctors who make mistakes, not something intentional. You see, regardless of how well trained ar educated a doctor is, he is still a human being. That means that at some point he will make a mistake. So, do we punish him by suing him for millions? What happens when you make a mistake on your job? Does your employer come after you for several years worth of your salary? Insurance companies often pay off bad claims. However, they do not do it in order to get rid of a nuisance, they do it because it is much cheaper. Insurance companies can settle 20 bad claims at $1 mill each for the cost of loosing a court battle wherein a crafty trial lawyer plays on the sympathy of jurors clouding the facts of the case.

Below is a portion of an MSNBC story
http://msnbc.msn.com/id/3660696/site/newsweek/

While doctors win most malpractice cases that go to trial, their insurers lose often enough to want to settle many claims. (In California recently, a couple won a $70 million judgment against Stanford University Hospital and two other health-care centers for failing to prevent their child from becoming disabled by a rare birth condition.) Sometimes, the malpractice is egregious. But then there are cases that, in an earlier era, would have been dismissed as the patient’s own fault. Take the pending lawsuit by a 29-year-old drug addict who sued a Pennsylvania mental hospital for failing to prevent her from overdosing on drugs and cutting herself. The hospital should have warned visitors against bringing drugs into the hospital, the lawsuit claimed. The staff should have noticed that —a visitor had sneaked some heroin and cocaine to her. The hospital’s job, her lawyers claim, was to protect her from herself.

No wonder, according to one estimate, doctors waste $50 billion to $100 billion on “defensive medicine” to prove that they left no stone unturned, no test untried, no medication unprescribed, no specialist unconsulted. That kind of money could buy health insurance for the 40 million Americans who have none.

Medical-malpractice claims don’t even do what they’re supposed to do—compensate victims and deter future mistakes. Various studies have found that the vast majority of medical errors go undetected by patients and that nine out of 10 are never compensated. (And when patients do sue, their malpractice allegations are unfounded in as many as 80 percent of the cases, other studies suggest; insurance companies pay to settle the vast majority of claims anyway, rather than risk a big hit.)

Limiting punitive damages, (not compensatory damages) would discourage lawyers from taking questionable cases for the chance of winning the litigation lottery. Limits would also encourage doctors / corporations and insurance companies to challenge questionable cases rather than simply settling them to avoid a possible huge jury award.

Kirk, limits would also deny victims representation against deep pocketed wrong doer’s. Any reform which denies individual’s rights to justice in the courts is act to foster insurrection, crime, revolution, acts of desperation.

David,

Compensatory damages are actual measurable damages incurred by a litigant. Punative damages are in effect perceived damages that can not be measured. Therefore, crafty trial lawyers who know how to play to the sympathies of a jury can write their own paycheck.

There should be no limits to compensatory damages and I do not recall hearing the President call for limiting them. In fact, if his plans are anything like those enacted here in Texas, there will not be limits on compensatory damages.

Where the problem occurs is in Punative damages. No one can measure punative damages. Jury Members, you, me, lawyers or judges can never measure punative damages.

So, a Trial Lawyer versed in the psychology of a case and jury can play to the sympathies of those jurors to win vast sums of money. Corporations and Insurance companies have grown so weary of these massive jury awards that they most often settle out of court regardless of the merits of a case to avoid the possibility of loosing a debilitating judgement.

Everything you buy carries the costs of these jury awards. Any company who has been sued passes those costs along to the consumers in the form of higher prices. Even if the company has never suffered a major jury award they pass along the costs of increasing insurance coverage due to litigation.

Every time someone wins a massive jury award for punative damages the rest of us loose in higher prices for everything we buy.

Kirk, you could not be more wrong about punitive damages. The measure of punitive damages is that sum sufficient to punish sufficiently to warrant that company or individual not willfully neglecting potential victims rights to safety and fair treatment.

For a Dr. in private practice it should be sufficient to warrant his loss of profits that year or two, for Form Motor, it should be sufficient to outweight what the company pays for its defense attorneys, and faulty engineering designs etc. to the point that will be cheaper for Ford to make safe cars than it will be to settle out of court with the victims.

See there is a measure for punitive damages, and it is a very common sense one which any jury member who has sat on a case awarding punitive damages will testify. It is to punish wrong behavior making the offender to consider right behavior the cheapest option.

David,

See my comments from above. I agree if the is willful disregard for a patient’s or consumer’s well being sue their pants off.

When it comes to medical malpractice or product liability law suits, there is absolutely nothing wrong with an injured party being compensated for their injuries. However, many jury awards have gotten totally out of hand. If the injury is caused by a doctor’s / corporation’s intentional actions or purposeful disregard for the well being of the patient / consumer then as far as I am concerned they should be sued into the poor house.

My problem is with doctors who make mistakes, not something intentional. You see, regardless of how well trained or educated a doctor is, he is still a human being. That means that at some point he will make a mistake. So, do we punish him by suing him for millions? What happens when you make a mistake on your job? Does your employer come after you for several years worth of your salary?

Take this case for instance.

jurors farther north, in Modesto, whacked Ford with a $295 million award, $290 million of which were punitive. In the latter case 19-year-old Juan Romo crashed in 1993 while driving his family. Romo was speeding slightly and was probably tired; his five passengers had all fallen asleep. After nearly 200,000 miles and several owners, his 1978 Ford Bronco was well-used. Romo lost control when he swerved to avoid hitting the van that he had been passing on the right, before it changed lanes in front of him. The Bronco flipped over. His parents and brother died; he and his two sisters survived with minor injuries. Romo and his sisters blamed Ford, claiming that the Bronco was prone to roll over and had a weak roof. The Bronco was manufactured like other sports utility vehicles and had the same accident rate. It exceeded federal roof guidelines in 1999, as well as those from two decades before. The Bronco also met government roll-over standards. Nevertheless, the jury held Ford responsible.

The plaintiffs’ emotional pitch overwhelmed serious reflection. For instance, in his closing argument, the plantiffs’ attorney encouraged jurors “to say a number that gets on the front page of every newspaper in the country.”

Kirk, how about the surgeon’s who overpack their schedules to increase their profitability to the extent they are not capable of getting 6 hours of sleep per night during their work week. A number of these cases have been reported.

These facts can only be uncovered and ascertained by the judicial process. If determined, the profit motive must be deincentivized where it puts patients at risk.

David,

I would say that this would be willful disregard for a patient’s well being.

Again, I refer back to the Newt Gingrich proposal to allow a panel of medical/judicial experts decide medical malpractice cases, not a judge and jury who know nothing about prcticing medicine.