The Sad Case of the Patient Protection and Affordable Care Act

[joecct]

Re: The Sad Case of the Patient Protection and Affordable Care Act

Le System de France: http://en.wikipedia.org/wiki/Health_care_in_France

There are other references, just google. This may work IF everyone agrees to bite the depressor.

[duper]

Re: The Sad Case of the Patient Protection and Affordable Care Act

Or we could enact tort reform legislation that caps the damages that the bloodsucking ambulance chasers can collect. That'd put an end to the litgious nature of unsatisfied patients, resulting in lower insurance costs.

How do you determine which lawyers are bloodsucking ambulance chasers and which ones are trying to help people. Furthermore, how should caps be determined? Tort reform is a popular concept, but a lot of it depends on people buying into the hype that all lawsuits are the McDonald's hot coffee suit. The outrage over which, of course, depends on everyone accepting what the "liberal media" tells us about that case. And of course, that information was extremely incomplete, and largely incorrect.

[leswp1]

Re: The Sad Case of the Patient Protection and Affordable Care Act

How do you determine which lawyers are bloodsucking ambulance chasers and which ones are trying to help people. Furthermore, how should caps be determined? Tort reform is a popular concept, but a lot of it depends on people buying into the hype that all lawsuits are the McDonald's hot coffee suit. The outrage over which, of course, depends on everyone accepting what the "liberal media" tells us about that case. And of course, that information was extremely incomplete, and largely incorrect.

This is a good point. It is so convoluted. There is true malpractice and negligence and there is the stuff that happens that is unfortunate but not caused. The person who sues the Dr after a vasectomy fails (doh- get checked, and read the consent stupid- it says failure happens) is not the same as the person who they operate on the wrong limb. I like the thought of having the person who sues frivilously having to pay the other sides legal fees before their lawyer gets their $.

I don't know the exact number and am not sure how you would find the source but a little known fact is many of the malpractice companies will settle with the patient even if the Med provider does not want to because of cost. THis is one of the things they teach when you go to conferences and do a seminar on liability and risk. At times it is cheaper to settle for them than to fight it. When a suit occurs you have all sorts of stuff- depositions, more depositions, how the jury will respond to the case scenario even if the facts are in the defender's favor etc. Lottsa money in that before anyone makes a determination and a climate that favors the person suing in some places.

It can take a few yrs to work through. I have a friend who was involved as a peripheral person- had referred the pt to the ER and the outcome was bad. The outcome was unavoidable but the family sued the ER and my friend (who had done exactly the right thing). The case went on for over 3 yrs before they dropped it. THis meant missed work for her but more importantly the trauma of having her integrity questioned. She needs to put that she was sued on any form for her license, malpractice, etc- even tho she was not at fault and they dropped it. She almost left practice over it.

The onus is definitely on the provider. One cannot assume even a basic level of intelligence when practicing. An example- I tell someone their pap smear is abnormal, they need a further test, explain in detail the risks and why the test is needed. They book an appointment. They cancel because they want to get their hair cut. In order for me not to be liable I (or my agent) need to attempt 3 phone calls, sent a regular letter and a certified letter (need proof of a rec't.) The assumption is that even if I have explained in detail the patient cannot be expected to fully comprehend the risk so is not responsible for a bad outcome. If I don't do that and the patient has a bad outcome it is all on me. Think of the cost of time/labor,doing that a bunch of times for all the tests ordered.

[dxmnkd316]

Re: The Sad Case of the Patient Protection and Affordable Care Act

Subscribed because I am healthy enough to do so

[FreshFish]

Re: The Sad Case of the Patient Protection and Affordable Care Act

Furthermore, how should caps be determined? Tort reform is a popular concept, but a lot of it depends on people buying into the hype that all lawsuits are the McDonald's hot coffee suit.

this is understandably a widespread misperception. The concept of "tort reform" does not apply to "economic damages" which is a measure of the cost incurred by the plaintiff due to the negligence of the defendant. I worked in a trial lawyer's office and this is the area in which he made the bulk of his money. "Tort reform" would not have affected his practice at all. If a drunk driver runs someone off the road, the family of the deceased is still entitled to loss of income, loss of services, loss of companionship, etc. as different forms of "economic damage."

Similarly with medical malpractice: "economic damages" include setting aside a trust fund to pay lifelong medical expenses related to a botched operation, say, or to rebuild the home to be wheelchair accessible, etc.

It is only the "punitive" damages that would be capped in "tort reform" proposals. The "economic" damage of "pain and suffering" (e.g., payment for psychological counselling) would not be affected, only the excess money above merely the "economic" damage would be capped.

Another element in certain proposals for "tort reform" is limiting the ability to certify a "class" for so-called "class action" suits, like the asbestos or myothelioma cases which upon investigation involved fraudulent doctors' reports, and other shady dealings. "Anyone who ever took this drug at any time for any reason" is often proferred as a potential "class" even if the side effects only are linked to certain limited uses in certain limited situations. I've seen some of those late-night commercials of personal injury lawyers trolling for clients; some of them seem suspiciously like invitations to make up symptoms.

[full disclosure: I was parking my car in an icy lot and it skidded into another one. When I was served papers for my "reckless and irresponsible driving at high speed under dangerous conditions" I was beyond startled! There was a person sitting in the other car who claimed my 2.5 mph slide caused substantial injury and harm. They were asking for tens of thousands of dollars! Upon investigation, the plaintiff had a history of chronic problems that were well-established way before this skid -- there was no damage to either car! -- how he expected to claim an injury to himself while his car went unscathed, who knows; anyway, the insurance company settled for a few thousand. So I've been on both sides, worked for a personal injury lawyer, and I was shaken down by a fraudulent claim for non-existing damages too]

[Kepler]

Re: The Sad Case of the Patient Protection and Affordable Care Act

I've seen some of those late-night commercials of personal injury lawyers trolling for clients; some of them seem suspiciously like invitations to make up symptoms.

While true, calls for "tort reform" from lobbying groups sometimes seem suspiciously like invitations to moral hazard.

If I get caught stealing your wallet I don't just have to return your wallet -- they also give me some jail time to deter me from doing it again. Why should it be any different if I knowingly sell you bad brakes?

[FreshFish]

Re: The Sad Case of the Patient Protection and Affordable Care Act

While true, calls for "tort reform" from lobbying groups sometimes seem suspiciously like invitations to moral hazard.

If I get caught stealing your wallet I don't just have to return your wallet -- they also give me some jail time to deter me from doing it again. Why should it be any different if I knowingly sell you bad brakes?

As noted previously, "tort reform" does not apply to "economic damages." If you knowingly sold me bad brakes, you still would be liable for all the economic damages you would have been liable for anyway. If someone died, then you still would be on the hook for several million dollars. It is only the "punitive" damages above this amount that would be capped at some arbitrary number set by the legislature. I've seen $250,000 bandied about by some, different figures bandied about by others.

If you "knowingly" sold not only me but many other people as well, then you also might be exposed to a class-action suit filed on behalf of all those who bought bad brakes from you. I'm not clear on the details, but the cap on "punitive" damages might well be per incident not in the aggregate, that would depend upon the actual law passed by the actual legislature.

Finally, if you "knowingly" sold faulty brakes, you probably would not only be liable for civil damages but also for criminal penalties as well. It seems like you chose as an example a hypothetical case that does not represent the typical situation in which "tort reform" is called for, in which either simple bad luck ("reversion to the mean", no procedure is always 100% effective) or simple non-criminal human error ("a drop of perspiration fell in my eye at an extremely inopportune moment").

The most important element in "tort reform" for many people is not related to "punitive" damages anyway. For many, it would be the introduction of a requirement that the plaintiff pay for the defendant's legal costs if the plaintiff loses at trial.

Right now, on a case-by-case basis, it is "cheaper" to settle a "frivolous" suit than it is to contest it (See leswp1 post earlier for real-life examples of the hardship this brings to innocent people!); however, on a system-wide basis, this "cheapness" comes at a very high cost. If the plaintiff were required to pay the defendants' legal costs if the case went to trial and the plaintiff lost, then either there would be more pre-trial settlement (after all, isn't that what the discovery process is supposed to promote in the first place??) or cases would not even be filed to start with. Today, plenty of nuisance suits with little to no merit are filed merely to get those few thousand dollars paid out to make them go away. Those "death by a thousand cuts" cases would dry up, or at least that is what "tort reform" proponents argue.

[ScoobyDoo]

Re: The Sad Case of the Patient Protection and Affordable Care Act

I have no problem with Tort reform. I don't have any problem with insurance companies getting out of the doctor business either. What I do have a problem with is every time someone suggests a reform on either side of the scale the other side says we have to do the other one first.

Bankruptcy is certain.

[Kepler]

Re: The Sad Case of the Patient Protection and Affordable Care Act

The most important element in "tort reform" for many people is not related to "punitive" damages anyway. For many, it would be the introduction of a requirement that the plaintiff pay for the defendant's legal costs if the plaintiff loses at trial.

And you don't think that's there to be a Chilling Effect on legitimate suits? How many people are going to risk "go big or go home" against the phalanx of imperial storm trooper attorneys a large company can afford? What this is designed to do is intimidate the legitimate along with the illegitimate.

There should be a way to discourage frivolous suits without removing punitive measures from the law. Every time I hear about lobbying efforts for "tort reform" I can't help viewing them with a healthy cynicism and a big helping of "cui bono?"

[FreshFish]

Re: The Sad Case of the Patient Protection and Affordable Care Act

And you don't think that's there to be a Chilling Effect on legitimate suits? How many people are going to risk "go big or go home" against the phalanx of imperial storm trooper attorneys a large company can afford? What this is designed to do is intimidate the legitimate along with the illegitimate.

There should be a way to discourage frivolous suits without removing punitive measures from the law.

Again, you seem to overlook that "tort reform" does not "remove" punitive measures it merely caps them at a "reasonable" amount, as determined by state legislatures.

Do you have any first-hand experience with the plaintiffs' bar? Why do you think they are set up to collect on a contingency basis in the first place?

There is virtually no risk whatsoever to the plaintiffs here; even as things stand now, the plaintiffs' bar only accepts two sets of cases: (1) those they feel likely to win, or (2) those in which they can get a quick settlement without discovery or trial even being necessary.

I'm not going to argue hypotheticals with you. You are more adept than I at that, you can construct a hypothetical to prove whatever you want it to and I don't see much value for me to engage in such a game with you.

You seem to continue to disregard the distinction between "legitimate economic damages" which remain untouched, and a substantial additional "punitive" measure on top of that, which is not eliminated, merely capped, at a level set by compromise between the lobbyists for the ABA and the lobbyists for the AMA, ADA, and NAM. Even the 8th Amendment makes a distinction between "punishment" and cruel and unusual punishment. These are attempts at the state level to invoke an analogous distinction.

While you say "there should be a way to discourage frivolous suits" you have not [yet] suggested anything regarding what such a way would look like.

[Rover]

Re: The Sad Case of the Patient Protection and Affordable Care Act

IIRC didn't Florida pass some sort of tort reform when Bush was governor complete with caps on awards? Any research on if its actually worked? I know Florida isn't exactly knocking it out of the park on any list of well run states, but don't know how this proposal turned out.

[ScoobyDoo]

Re: The Sad Case of the Patient Protection and Affordable Care Act

And you don't think that's there to be a Chilling Effect on legitimate suits? How many people are going to risk "go big or go home" against the phalanx of imperial storm trooper attorneys a large company can afford? What this is designed to do is intimidate the legitimate along with the illegitimate.

There should be a way to discourage frivolous suits without removing punitive measures from the law. Every time I hear about lobbying efforts for "tort reform" I can't help viewing them with a healthy cynicism and a big helping of "cui bono?"

I have the same issues with it but I'm so tired of hearing about I wish we'd just do it and get it over with. Seems the Right won't shut up about anything until they get their way and it doesn't work. Even when it doesn't work (Bush Tax Cuts) they still won't shut up about it.

[leswp1]

Re: The Sad Case of the Patient Protection and Affordable Care Act

And you don't think that's there to be a Chilling Effect on legitimate suits? How many people are going to risk "go big or go home" against the phalanx of imperial storm trooper attorneys a large company can afford? What this is designed to do is intimidate the legitimate along with the illegitimate.

There should be a way to discourage frivolous suits without removing punitive measures from the law. Every time I hear about lobbying efforts for "tort reform" I can't help viewing them with a healthy cynicism and a big helping of "cui bono?"

This is a valid point. Curious to hear what you think would be a good fix. (asked seriously). If people were honest then no reform would be needed. Does anyone know why was there an explosion of ambulance chasers? I don't remember this kind of stuff when I was a kid.

[duper]

Re: The Sad Case of the Patient Protection and Affordable Care Act

I live in a state that allows civil court judges to require unsuccessful plaintiffs to pay the defendant's legal costs. I think that seems fair. It doesn't mean that every plaintiff who loses has to, just the ones where the judge believes that the suit was frivolous. And it acts as some reason not to bring a frivolous suit.

When you say that tort reform does not eliminate punitive (or non-economic) damages, but merely caps them, that is not necessarily true. Several states, I understand, have at least tried to eliminate non-economic damages.

As far as contingency fees are concerned, they are not an attempt by lawyers to milk the system. They are THE way (not a way, the way) that people who are struggling to get by can afford to file suit when they are injured by someone else's negligence. Without contingency fees, the civil justice system becomes HEAVILY tilted toward the wealthy.


My last comment absolutely did NOT express a misperception. Sorry FF. Colorado uses the phrase non-economic damages for a reason: they serve not only to "punish" people who mess with other people, they also serve as recognition that someone's quality of life has been forever impaired. If an accident makes it so that I can never again go to hockey games, and that is the only thing in life that gives me joy, there is no economic damage award to cover that loss of quality of life. Of course, money won't actually fix it, but it is a recognition that a cherished aspect of my life has been lost to me. My problem with tort reform is that, I don't see how you can say that no lawsuit could ever possibly be worth more than X dollars in non-economic damages. I just don't.

[leswp1]

Re: The Sad Case of the Patient Protection and Affordable Care Act

All of what you posted is true. I don't want to stop the suits that are legit for the people that have suffered. I would like a way to get rid of the vulture lawyers who encourage and seek people to file for the stupid things like the chick who sued re the vasectomy. That was a lot of cash with a forgone conclusion. The lawyer should be ashamed that he filed. The woman was already planning on how to spend the money before they got shot down