Tort Reform: Let's Git It Own!

#1
Professor Nono

Professor Nono

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#1
Let's have a friendly debate about the tort reform movement. I'll start the discussion by amicably noting that tort reform is for pu$$ies and wimps. That fact having been duly set forth, here's my first salvo: Tort reform blatantly says to all of us that juries made up of people from our community, our friends and neighbors, are incapable of determining what is fair in a trial. It's big government at its best.

Go at it.
 
#2
#2
Professor Nono said:
Let's have a friendly debate about the tort reform movement. I'll start the discussion by amicably noting that tort reform is for pu$$ies and wimps. That fact having been duly set forth, here's my first salvo: Tort reform blatantly says to all of us that juries made up of people from our community, our friends and neighbors, are incapable of determining what is fair in a trial. It's big government at its best.

Go at it.
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If you havent seen a jury lately let me clue you in. 95% are not someone I would consider my peer and incapable or unwilling of recusing themselves from jury duty, 5% are people who feel the desire to perform their civic duty.
 
#3
#3
That's not the question my friend. The question is whether they are capable of making a fair decision. Also, let's see the proof. From the juries I've seen, most of them are thoughtful and really try. Of course there are extreme anomalies but day to day juries do what they are supposed to do - decide cases. But that's all subjective, let's stay on objectively measureable facts like how long our jury system has been in place - the modern system started in the mid 12th century during the reign of Henry II. In America,it only started with the original Bill of Rights - back when our country was just beginning and stuff. BUT, all of those founding fathers were bozos and didn't know what they were doing. WE are now MUCH smarter and know better........
 
#4
#4
Professor Nono said:
That's not the question my friend. The question is whether they are capable of making a fair decision. Also, let's see the proof. From the juries I've seen, most of them are thoughtful and really try. Of course there are extreme anomalies but day to day juries do what they are supposed to do - decide cases. But that's all subjective, let's stay on objectively measureable facts like how long our jury system has been in place - the modern system started in the mid 12th century during the reign of Henry II. In America,it only started with the original Bill of Rights - back when our country was just beginning and stuff. BUT, all of those founding fathers were bozos and didn't know what they were doing. WE are now MUCH smarter and know better........
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I have my doubts about whether or not you're smarter or know better than any of the Founding Fathers.
 
#5
#5
The trouble with juries these days especially in small communities is they are always kin to someone, the defendant or the one who was hurt and keep this to themselves. Along with the fact that small communities are Covens for gossip whores with nothing better to do that to plan and execute stupidity. Another factor is today anyone and everyone has an opinion with an agenda. The biggest problem is the kind of people who end up on the jury and the process that defines it. The prosecution and defense both seeking to fill it with like minded people. At lesser levels it is decided by whoever the prosecutors or the people with political power in a given county decided it to be from their jury pool process.

I have know the people in this area for the entirety of my life and it scares the hell out of me to even be judged by them for a traffic ticket much less the important stuff.

On the other hand if you start down the road of monkeying with this process. Well I think Aristotle said it best "Law is mind without reason".
 
#6
#6
What we need more than tort reform is class action reform. That is where the real waste is - and it all goes to attorneys. Plaintiff's class gets a coupon or a check for 2 bucks.
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#7
#7
Well - smaller communities were even more frequent as you go back in history. That is nothing new.

Now, with regard to class actions, they serve a particular purpose - helping people who have claims that are too small to pursue individually. For example, if a corporation engages in illegal billing practices that overcharges each customer $20, the individual customer is not going to spend the money to hire an attorney and file suit to recover the $20. However, when the corporation has hundreds of thousands of customers, it is making large amounts of money through illegal conduct. The class action allows this group of customers to combine their claims in one action. This allows the combined potential recovery to justify the cost of bringing suit.

How else would a large corporation or insurance company keep from screwing all of us $20.00 at a time? Unless you are ok with that.
 
#8
#8
Your fundamental mistake is in assuming that it is a jury's job to be "fair." When you say this, it is clear that by "fair" you mean equitable as between the parties. Sort of a big picture do the right thing kind of a view.

That is NOT what a jury is supposed to do. It is supposed to make finding of facts and, depending on the type of case, then apply legal principles to those facts.

This last step is often what they don't do all that well.
 
#9
#9
lawgator1 said:
Your fundamental mistake is in assuming that it is a jury's job to be "fair." When you say this, it is clear that by "fair" you mean equitable as between the parties. Sort of a big picture do the right thing kind of a view.

That is NOT what a jury is supposed to do. It is supposed to make finding of facts and, depending on the type of case, then apply legal principles to those facts.

This last step is often what they don't do all that well.
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If they apply the law to the facts, then they are fair. If they do not apply the law to the facts, they are unfair. Period. No mistake.
 
#10
#10
Professor Nono said:
That's not the question my friend. The question is whether they are capable of making a fair decision. Also, let's see the proof. From the juries I've seen, most of them are thoughtful and really try. Of course there are extreme anomalies but day to day juries do what they are supposed to do - decide cases. But that's all subjective, let's stay on objectively measureable facts like how long our jury system has been in place - the modern system started in the mid 12th century during the reign of Henry II. In America,it only started with the original Bill of Rights - back when our country was just beginning and stuff. BUT, all of those founding fathers were bozos and didn't know what they were doing. WE are now MUCH smarter and know better........
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Best answer is... Sometimes.
 
#11
#11
Professor Nono said:
If they apply the law to the facts, then they are fair. If they do not apply the law to the facts, they are unfair. Period. No mistake.
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They often don't. They decide who they like better, or who they think ought to win, and talk themselves into it.
 
#12
#12
Professor Nono said:
Tort reform blatantly says to all of us that juries made up of people from our community, our friends and neighbors, are incapable of determining what is fair in a trial.
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I have no problem believing that. The people that "are able to perform their civic duty" are not always the best and brightest. Then add in the complex legal side and conniving lawyers and it's a system just asking for abuse.

Humans are also emotional and fallible. Not a recipe for success. I'm not saying I disagree with the jury process as a whole but when they start handing out money lots of things can happen
 
#14
#14
Big Papa - the "value" will differ from person to person as any thinking person will understand. As an example, a twisted ankle and the pain resulting would not logically have the same value as a missing leg and the pain and suffering that results. There is no specific value because every case is different with different injuries, different pain, different non-economic damages. To attempt to put a pre-ordained number on the value of non-economic damages is two-fold preposterous. First, every case is different - so WTF? Second, our decision-makers need to have discretion to make a decision as they deem appropriate. Protocol is for the guys that scrape you up and take you to the hospital. Discretion is for the guy at the end of the line that makes the decision about how to handle your symptoms. I certainly would not want to handcuff our juries (or judges if it is a case that is heard by a judge only) when it comes to damages. Besides, who has to pay the judgments anyway? Insurance companies - as they should.
 
#15
#15
Remittitur. /thread

Now for a quick rant...

Tort reform arguments are usually based on reducing liability for hospitals and doctors for medical malpractice, somehow alleging that insurance costs to health care providers are the reason why the health care system in America is out of control. It is notable that many, if not most, attorneys will refuse medical malpractice cases because there is simply no benefit to the client or attorney to pursue such a claim (unless the claimed damages are in the multiple-hundreds of thousands of dollars). The empirical data shows that a vast majority of cases where patients were harmed by medical malpractice are never pursued. It simply doesn't make sense for those harmed to pursue legal action when they won't be able to recover in 70+% of jury trials, and their legal fees make pursuing any action a money-losing proposition. The classic case pushed for the issue of tort reform is the McDonald's coffee spill case. However, the actual facts of the case were not reported by the media, and if I recall correctly the damages were reduced by remittitur.

edit - it seems the damages awarded were $2.86 million, reduced to $640k by judge under remittitur, and the case was subsequently settled after appeal for less than $600k

/rant
 
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#17
#17
Professor Nono said:
The Tennessee Medical Malpractice Claims Report for 2009 has been published by the state.

Four (yea thats 4) jury verdicts in favor of patients were reported for the entire year across this great state.

Here's the link

http://www.keithwilliamslawgroup.com/library/2009MedicalMalpracticeClaimsReport.pdf

tort reform equates to insurance company profit elevation reform.
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Ummm, maybe I'm missing something but that link took me to some truly staggering numbers paid out by the medical community.

Total damages paid out in 2008-142+ million.

Total defense costs in 2008-87+ million.

So, in just TN in just 2008 the medical community (along with their insurance companies) forked over 229+ million dollars.

That's a GREAT link but I'm not at all sure it serves the purpose you intended.
 
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#19
#19
Ok - let me dig for a second but here's something to chew on first:

1)—Very few cases are actually decided by juries, moreover—only 5 cases went to verdict in 2005—so it is difficult to sustain the contention that jury verdicts are out of control. On the other hand, 444 cases were settled in 2005, the medical malpractice insurance carrier presumably settling because it saw probable proof of liability. Of the payouts in 2005, $120 million was in settlements, $6 million from jury awards—a ratio of 95 to 5 percent.

(2) In a 2006 report by the Department of Commerce and Insurance of Tennessee, the number of physicians practicing in Tennessee actually increased from 218 per 100,000 population to 260 per 100,000 between 1991 and 2001. While doctors experience some financial pressures, their difficulties stem in large part from radically lowered reimbursement rates under managed care, Medicaid and Medicare.

(3) Good doctors are paying for the sins of bad doctors—insurance companies do not “experience rate” their premiums, meaning that the premium is not calculated on the quality of care the doctor provides. Instead, all doctors wind up paying for the negligence of the few doctors who actually commit malpractice. Just as across the nation, more than half of malpractice claims come from only five percent of the doctors.

(4) The claim of “defensive medicine,” is not realistic. The Congressional Office for Technology Assessment found that less than eight percent of the total cost of healthcare in the U.S. is affected by the practice of defensive medicine. Actual malpractice payouts, for both meritorious and “frivolous” lawsuits, amounts to about one-half of one percent of the total cost of health care, according to the Consumer Federation of America and the Congressional Budget office.

(5) Large verdicts are always widely covered by the media, but when a trial judge or appellate court reduces the award, (e.g. the multimillion dollar verdict in the McDonald’s “hot coffee” case, which was ultimately settled for about $300,000), no one ever learns about it.
 
#20
#20
Tort reform isn't about juries vs no juries. It also encompasses junk lawsuits that create tremendous transaction costs and even when exposed as junk have little negative impact on the plaintiff. In short, the system rewards bringing suit. Result, we have litigation overdrive.
 
#21
#21
Professor Nono said:
Ok - let me dig for a second but here's something to chew on first:

1)—Very few cases are actually decided by juries, moreover—only 5 cases went to verdict in 2005—so it is difficult to sustain the contention that jury verdicts are out of control. On the other hand, 444 cases were settled in 2005, the medical malpractice insurance carrier presumably settling because it saw probable proof of liability. Of the payouts in 2005, $120 million was in settlements, $6 million from jury awards—a ratio of 95 to 5 percent.

(2) In a 2006 report by the Department of Commerce and Insurance of Tennessee, the number of physicians practicing in Tennessee actually increased from 218 per 100,000 population to 260 per 100,000 between 1991 and 2001. While doctors experience some financial pressures, their difficulties stem in large part from radically lowered reimbursement rates under managed care, Medicaid and Medicare.

(3) Good doctors are paying for the sins of bad doctors—insurance companies do not “experience rate” their premiums, meaning that the premium is not calculated on the quality of care the doctor provides. Instead, all doctors wind up paying for the negligence of the few doctors who actually commit malpractice. Just as across the nation, more than half of malpractice claims come from only five percent of the doctors.

(4) The claim of “defensive medicine,” is not realistic. The Congressional Office for Technology Assessment found that less than eight percent of the total cost of healthcare in the U.S. is affected by the practice of defensive medicine. Actual malpractice payouts, for both meritorious and “frivolous” lawsuits, amounts to about one-half of one percent of the total cost of health care, according to the Consumer Federation of America and the Congressional Budget office.

(5) Large verdicts are always widely covered by the media, but when a trial judge or appellate court reduces the award, (e.g. the multimillion dollar verdict in the McDonald’s “hot coffee” case, which was ultimately settled for about $300,000), no one ever learns about it.
Click to expand...


That comment alone demonstrates that you have no clue what you are talking about.
 
#23
#23
Professor Nono said:
Ok - let me dig for a second but here's something to chew on first:

1)—Very few cases are actually decided by juries, moreover—only 5 cases went to verdict in 2005—so it is difficult to sustain the contention that jury verdicts are out of control. On the other hand, 444 cases were settled in 2005, the medical malpractice insurance carrier presumably settling because it saw probable proof of liability. Of the payouts in 2005, $120 million was in settlements, $6 million from jury awards—a ratio of 95 to 5 percent.

This is tantamount to arguing over whether you got bit in the arse by a german shepard or doberman. By your link over 229 million dollars was paid out in just 2008 in just TN. The only reason that number isn't higher is precisely why there are so many out of court settlements.

(2) In a 2006 report by the Department of Commerce and Insurance of Tennessee, the number of physicians practicing in Tennessee actually increased from 218 per 100,000 population to 260 per 100,000 between 1991 and 2001. While doctors experience some financial pressures, their difficulties stem in large part from radically lowered reimbursement rates under managed care, Medicaid and Medicare.

Interesting numbers I suppose...a bit dated and I'm not making much of a connection to tort reform though.

(3) Good doctors are paying for the sins of bad doctors—insurance companies do not “experience rate” their premiums, meaning that the premium is not calculated on the quality of care the doctor provides. Instead, all doctors wind up paying for the negligence of the few doctors who actually commit malpractice. Just as across the nation, more than half of malpractice claims come from only five percent of the doctors.

You are undoubtedly onto something here but it's just how insurance works. Bad drivers push all our car insurance costs up...it's just how it works. Still, we all have to keep paying those premiums, right?

(4) The claim of “defensive medicine,” is not realistic. The Congressional Office for Technology Assessment found that less than eight percent of the total cost of healthcare in the U.S. is affected by the practice of defensive medicine. Actual malpractice payouts, for both meritorious and “frivolous” lawsuits, amounts to about one-half of one percent of the total cost of health care, according to the Consumer Federation of America and the Congressional Budget office.

Costs of defensive medicine spur heated debate - Health - Health care - msnbc.com

OUTED: Doctors Order Unneeded Tests For Fear Of Lawsuites

LOTS of debate still going on with this topic.

(5) Large verdicts are always widely covered by the media, but when a trial judge or appellate court reduces the award, (e.g. the multimillion dollar verdict in the McDonald’s “hot coffee” case, which was ultimately settled for about $300,000), no one ever learns about it.
Click to expand...

As far as this goes it's probably a decent observation but ye gods man you're still actually falling over yourself in trying to separate out judgements as though the rest doesn't matter. If you lose $100 or have it stolen you're out $100 and that's the bottom line. In '08 the bill for pending and closed cases (defense costs included) was over 229 million dollars.

Another # that kinda shocked me when I saw it was Claims Pending. As of 12/31/08 there 5,780(!) still unresolved claims pending...just in TN. (this includes unresolved cases that were filed prior to '08)
 
#24
#24
hndog609 said:
As far as this goes it's probably a decent observation but ye gods man you're still actually falling over yourself in trying to separate out judgements as though the rest doesn't matter. If you lose $100 or have it stolen you're out $100 and that's the bottom line. In '08 the bill for pending and closed cases (defense costs included) was over 229 million dollars.

Another # that kinda shocked me when I saw it was Claims Pending. As of 12/31/08 there 5,780(!) still unresolved claims pending...just in TN. (this includes unresolved cases that were filed prior to '08)
Click to expand...

Child's play. I am in trial a week from now on a n incident that occurred in June, 2003.
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