Friday, February 11, 2005

Tort reform

So, what's the consensus here, boys?

There's no denying that trial lawyers manipulate the system and the rules to maximize their takehome pay. There's also no denying that corporate pushers of the effort to limit class action suits (and reform broadly) are exclusively concerned w/ their takehome pay. My sense of the issue is that there are two distinct debates that are being effectively merged into one. There should be a discussion about current medical malpractice litigation and a separate discussion about defective products/class action litigation. The proponents of efforts to limit the second have piggy-backed on the arguments to limit the first. They have effectively made the public debate about about med mal lawsuits, but want the alterations proposed to remedy the problems to affect class actions. I think this is bad.

There is a fundamental difference b/t the way litigation affects corporate and individual defendants. Yes, insurance companies defend doctors, but doctors as individuals must take a lot of time and effort, and have their reputations tarnished when they are named. Corporations have to respond similarly, but the effects are spread over dozens or hundreds of people. Responding to a lawsuit is a qualitatively different burden for an individual and affects the way they can provide their service.

Now, recognizing this, I think that doctors who are named AND THEN ARE EITHER DISMISSED AS DEFENDANTS OR WIN A JURY VERDICT, may very well be in need of some additional protections. How can such doctors be protected while still holding to account those who do in fact deviate from the standard of care to cause injury?

Creating a cap on damages may reduce the number of these "frivolous" lawsuits by lowering the incentive for attorneys to file such cases. I doubt it, though, b/c the "frivolous" cases should never win a large award from a jury anyway. It's common sense: the stronger cases get larger awards.

Restricting venue options could be more effective and I'd argue would be more just.

At any rate, what I'm getting at is that while I do think that medical malpractice litigation may need some new law, I don't think that corporate defendants are in need of similar protections. And I think they know they can't win a public debate on the matter, so they are hitching their wagons to the medical malpractice reform, broading the argument to "tort reform." And their efforts appear to have been successful. Boo.


Blogger Vergasy said...

Sorry I've been out of the loop on the blog--this has been a hellish couple of weeks and it's only gonna get worse.

I agree: medmal issues and general class action/products liability issues are being intentionally blended together when they in fact should be treated separately.

I am convinced that caps on even non-economic damages would work tremendous amounts of injustice.

Not that it couldn't be done, but it would be tough to do something like fee shifting for dismissals and doctors who win jury verdicts because oftentimes it makes sense to name all related parties at least at first, especially if the statute of limitations is bearing down on you. Also, by definition, if a case makes it to a jury then it was reasonable for a jury to find for either side--sure one side could be stronger but it's tough to hammer some injured person for a reasonable belief.

Maybe I'm reading too much insurance co. propaganda, but I'm not sure that all bad cases get dismissed. Early settlement for an amount under insurance coverage limit makes a lot of sense for doctors. There's definitely serious "in terrorem" value to these cases, and doctors have big incentives to settle.

The only thing that even remotely makes sense to me is some sort of additional review on the merits at the outset. This would be tough because you may not have enough info to present a complete case at that point and it would be an administrative nightmare.

4:50 PM  
Blogger Ger said...

From my sense of it, outrageous verdicts for the plaintiffs in med mal cases are by and large a thing of the past. Our firm (which admittedly handles very few med mal cases in general) has all but quit taking med mal claims unless there are absolutely clear violations of the standard of care.

4:58 PM  
Blogger Ger said...

This comment has been removed by a blog administrator.

5:25 PM  
Blogger Ger said...

Or perhaps sanctions on attorneys whose med mal cases are dismissed on summary judgment.

5:26 PM  
Blogger Tally Ho said...

I agree with you guys 100% on justice grounds. Just out of curiosity: I'm under the impression that corporations have standing as legal persons . . . Does this imply any sort of double standard in terms of rights in differing between med mal and class action suits? Or is the distinction simply legislated making it okay?

Lawyer folks?

10:41 AM  
Blogger Vergasy said...

TH--I'm not exactly sure what you are asking.

Corporations can sue and be sued.

Med mal is essentially negligent medical care, defined as a deviation from accepted medical practice. If I remember correctly, both medical clinics and doctors can be sued for actual conduct, some sort of procedural failure, or under some sort of agency theory (doc as an agent of his clinic).

Both people and corporations can be sued via class action--it has to do with similarity of injury and causation of injury between members of the class. You probably don't really see many class actions against doctors because each injury is usually different and and is caused under different circumstances. Corporations generally get hit hardest for pharmaceutical problems, other products liability, or exposure to some sort of hazaradous agent or condition--subtantial parts of each case will be similar.

Disclaimer: I am not yet a lawyer, and I cannot vouch for the accuracy of any of this.

11:32 AM  
Blogger Vergasy said...

I'm Vice President of the UMN chapter of the Association of Trial Lawyers of America, and we're planning a debate on the issue of medical liability reform. Do you have any ideas of who we could ask to come? I would really like to have good arguments and good representation of view points. I've never heard any side be totally honest on the topic.

Obviously we'll have a trial lawyer. I'd like to get a doctor to give his or her take, not to really speak to the proposed legal changes but more for perspectives on how it affects practice. I'm thinking about contacting the AMA for both the doctor and an attorney in favor of tort reform. I actually kinda scared that I may have to talk to the Republican Party in order to get an attorney who thinks the proposed changes are a great idea. Some people have suggested someone who was hurt, but I'm not thrilled with the idea--anecdotal evidence isn't much of an argument. We've talked about an economist to discuss the effects on the industry and insurance company finances.

Any thoughts?

11:41 AM  
Blogger Ger said...

I'd do all you can to get a doctor to talk about the effect it has on the practice of medicine. See if you can find a doctor who will not change the way he/she provides care, although ordering additional tests as a protective measure would insulate her from potential suits. It borders on the anecdotal, but this is what distinguishes MD defendants from corporate defendants.

1:25 PM  
Blogger Tally Ho said...

I was asking if it is legal to treat different legal persons (coporations and doctors) differently when it comes to liability, not because the harm was caused differently. Basically does being a legal person give you equal rights?

5:23 PM  
Blogger Vergasy said...

Corporations are persons but not citizens. They get most rights but not all.

I don't see how tort reform would privilege doctors or corps, or vice versa though. A corporation liable for medmal (through the act of an agent or through some corporate act) would be liable just like doctors, with the same damage caps, etc. A non-corporate person who sprays his lawn with some dangerous chemical that makes the kids born nearby retarded can be sued by a class just like a corporation could.

Whether corporations could be discriminated against is a different question--I haven't taken that class yet. I'm not sure why we'd want to do that anyway--I doubt it would serve the goals of compensation, deterrence, or justice.

6:09 PM  
Blogger Tally Ho said...

mentally challenged, ver . . .mentally challenged. chemical reactions can be retarded.

I was just asking in terms of arguments that corporations could put forward were the legislators to make a distinction between medmal and whatever ground coroporations tend to be sued over.

2:58 AM  
Blogger Vergasy said...

If medmal liability were limited and not products liability, my guess is that the courts would say there is no problem because the medmal reform protects everyone, docs and corps, who commit medmal. The same rules apply to everyone, so equal protection is satisfied even though some groups benefit more from the change than others.

10:00 AM  

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