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Tallgeese wrote:

ShnickyShnack wrote:

As I understand it, the punitive damages are what make the lawsuits so crazy. Plus lawyers can file a lawsuit and not pay a dime (outside their own time) if they lose. The former needs to be capped, the latter stopped. Loser pays court costs.

No.

resedit wrote:

I don't think loser should pay court costs unless it can be demonstrated they were trying to run a scam.
I don't like the idea of someone being afraid to sue a big corp because big corp can afford better fancier lawyers and they are afraid they'll not only lose, but be poorer for their attempt at justice.

Also, something has to be done about punitive damages, but lowering them so they're no longer punitive isn't the answer. They exist partially because having to pay a fine and/or real damages every so often isn't always an incentive to stop doing careless things that hurt someone.

Loser pays is ridiculously awful unless there are controls in place to keep large defendants from annihilating smaller plaintiffs. Otherwise, it would be stupid to sue a corporation. They have better, more expensive lawyers; which would turn the justice system into a reverse lottery. Your odds of "winning" are still bad, only now instead of losing the price of a ticket, you end up in bankruptcy.

Punitive damages, on the other hand, are stupid. They are almost always reduced, because they are almost always far too punitive. Set the statutory limits such that they are "punitive enough", and eliminate punitive damages outright. Don't even allow them. This will indirectly help with malpractice insurance, because now there is an upper limit to damages. You no longer have to plan for stratospheric damages.

I also think we need a grand jury -esque system to filter what gets into civil court. While not perfect, it would at least filter the most egregious lawsuits out.

Ribtorus wrote:

Loser pays is just fine. But it applies to certain classes of suits.

Judge Judy?

Hmmm, I know a couple of people where that statement is absolutely true. And their mothers could probably kick ass pretty good too.

Pariah wrote:

Last time I checked malpractice awards amounted to about 3% of health care costs.

It's not just the awards and resulting cost of insurance, it's the cost of tests that doctors order that they normally wouldn't because they want as much documentation as they can get when their diagnosis is questioned before a jury of regular joe's who haven't been to medical school.

Example - beginning of this year I hurt my shoulder. I think I posted on it in unplugged.
Wasn't getting better so I finally went to Doctor. She told me she suspected tendonitus (sp?) but normally would order an MRI but since I didn't have insurance, she would only order one if I was willing to pay. I wasn't, so I just got the steroid shot - if it wasn't better in 24 hours, then I'd have to call back to possibly schedule an MRI.

If I had insurance, an MRI would have been done. Not because she expected to find anything, but more than likely to cover her ass in the off chance that it was something else.

Nothing you posted demonstrated any reason why doctors shouldn’t try and cover their bases, or why they shouldn’t be legally liable for a misdiagnosis.

resedit wrote:

mo' ron wrote:

Nothing you posted demonstrated any reason why doctors shouldn’t try and cover their bases, or why they shouldn’t be legally liable for a misdiagnosis.

I didn't say they shouldn't cover their bases or be liable for a misdiagnosis.

The problem is the absurdly high awards that are granted result in increased medical costs for tests and procedures that are not necessary.

So...just use Web MD instead?

So... let me get this straight.
You want The Government to restrict a citizens right to a fair redress in a court of law? It's OK to take away the rights of citizens to protect businesses?

Pariah wrote:

So... let me get this straight.
You want The Government to restrict a citizens right to a fair redress in a court of law? It's OK to take away the rights of citizens to protect businesses?

I want limits put on the payout that can be awarded from malpractice lawsuits, if that's what you mean.

Intentional malpractice is criminal, but most mistakes are not intentional, and some of them quite likely couldn't have been avoided. However, they are often decided by juries who do not know and the size of the judgments is emotion driven, it's not justice.

resedit wrote:

Intentional malpractice is criminal, but most mistakes are not intentional, and some of them quite likely couldn't have been avoided. However, they are often decided by juries who do not know and the size of the judgments is emotion driven, it's not justice.

Unsupported generalization.

Farmerkev wrote:

KHannon wrote:

resedit wrote:

It's not just the awards and resulting cost of insurance, it's the cost of tests that doctors order that they normally wouldn't because they want as much documentation as they can get when their diagnosis is questioned before a jury of regular joe's who haven't been to medical school.

Unsupported generalization.

The cost of defensive medicine is not unsupported nor is this a court of law.
If it would make you happy to have a link to get your education started-
http://advance.uconn.edu/2009/090223/09022302.htm
http://www.huffingtonpost.com/johnny-be … 43537.html
http://online.wsj.com/article/SB125193312967181349.html

This may not be a court of law.  My point was, without any form of support, it is equivalent to his innane ramblings of the end of the world.  If you possessed literacy, you would be able to tell that I said HIS statements were unsupported.  I did not say that the concept of "defensive" medicine was unsupported.  My point was that debating Res is like trying to debate a moving target because he makes unsupported generalizations without providing the basis for his "beliefs." 

But I LOVE that you have brought back your Moderator combativeness®.  It's so becoming.

The problem with defensive medicine speculation in our society is that the studies that form the basis of this belief have serious methodological problems and have led non-partisan entities, such as the Congressional Budget Office and the Government Accountability Office, to conclude that evidence about the extent and cost of "defensive medicine" has been inconclusive.  The CBO concluded that "On the basis of existing studies and its own research, CBO believes that savings from reducing defensive medicine would be very small."  The GAO concluded similarly (and suggested that profit rather than fear of lawsuits may drive "defensive medicine".  Even the AMA finds the extent and costs of it to be difficult to quantify.  This study here discussing the GAO/CBO studies on "defensive medicine":  http://www.justice.org/resources/Medica … dicine.pdf


All told, I believe that extensive reform of medical malpractice is necessary.  I wouldn't go so far as Radarman in holding that all pain and suffering is "crap" or useless, but I also agree that the amorphous nature of the extent of liability (because of punitive damages) is inherently unjust.

Last edited by KHannon (2009-10-22 10:54 pm)

user wrote:

Why would intentionality be a factor in a malpractice suit?

Well if you INTENTIONALLY engaged in malpractice, theoretically you have opened yourself up to criminal liability, and to the extent that punitive damages require "extreme and outrageous" conduct, it can elevate the level of damages you would be susceptible to.  Even outside of punitive damages, a jury would likely award more pain and suffering to a victim of intentional malpractice than against doctor who simply made a mistake.