TORT Reform ~ Who does it serve?

How many of us really understand what tort reform is? The term "tort reform" is tossed around like it is a benefit to the people. Our justice system mandates that there be a method for civil wrongs done against a person. Many laws designed to protect the citizen from right violations can be remedied through the process of torts. Our legislatures have decided that in order for companies to stop raising prices that effect our everyday purchases reform needs to occur.

Systematically over the past few years tort reforms have been implemented across our country. In that same time frame tort lawsuits have dropped nearly 50%. Well what does a tort reform look like in action?

Lets see:

Place a cap on damages at $250,000
This option doesn't sound so bad...but who does this really serve? What if a person deserves more than that amount? Shouldn't the jury decide? This amount would hurt the average citizen or small business man for sure, but does this effect a large corporation? Absolutely not, those kind of damages are peanuts.

Add a provision for frivolous claims
It's not what you think. While frivolous claims are now a ground to object to a lawsuit, they in no way stop a lawsuit from being followed through with. The provision of tort reform that addresses frivolous claims are found in automatic reimbursement of the losing party for the attorney fees in defending a lawsuit. Again who does this serve? For years our system always has a loser and winner...what this provision does is makes attorneys not take cases unless they are almost confident they will win. This has driven many attorneys into rubber stamp type of cases where case law is solid. So who does this serve? Certainly not the average citizen that has a civil beef with a business or another person. Who it protects is big business who will hire the best lawyers, billing the highest amount of hours to scare the crap out of any would be attorney that thinks they might lose.

Create administrative levels of claims for citizens
Many administrative remedies for civil type claims have sprung up as a result of these tort reforms. Big government is now administrating and acting as a mediator between corporations and the people to settle disputes. Administrative procedures do not necessarily need attorney representation; however, many attorneys take these types of cases exclusively. So who do they serve? Generally, in administrative hearings the law is in favor of the business, and a person filing a claim has the burden of proof where the state has the option of weighing evidence in accordance with regulations that are in favor of business. These laws favor business.

I am deeply concerned with tort reform is destroying the enforcement of civil rights/liberties and making it harder for the average person to right a civil wrong done to them. I am also concerned that tort reform favors big corporations, and has little effect on small business or normal citizens. I'm curious how many share in this concern with me.

[edit on 26-2-2010 by ExPostFacto]

I for one certainly share your concern. Texas tort reforms seem to keep the lawyers in business. Since these new laws have been passed, we hardly hear of "lucrative" settlements - there's hardly any news regarding jury awards. It's my guess that the "frivolous" suit penalties have reduced "nuisance" lawsuits that used to be settled for small amounts without going to trial. However, it would be a very difficult choice to pursue a tort if the loser always has to pay the expenses - but I wonder what's considered or ruled to be "frivolous".

reply to post by ganjoa


legal-dictionary.thefreedictionary.com...

A frivolous lawsuit, motion or appeal can result in a successful claim by the other party for payment by the frivolous suer of their attorneys fees for defending the case. Judges are reluctant to find an action frivolous, based on the desire not to discourage people from using the courts to resolve disputes.

Basically all frivolous lawsuits do is say the motion or issue cannot go forward unless it has legal merit. According to the link though it looks like judges seem to not like the frivolous rule as it undermines the legal process of settling a disagreement.

You are right about settlements though. A majority of lawsuits never make it to court and result in settlements. The deposition phase of a lawsuit is generally the most expensive and the discovery process. Frivolous lawsuit rules allow attorneys to charge their clients high rates in hopes they win a case the other side will have to pay that amount.

Tort reform helps out the insurance companys for the hospitals...of course the politicians are fighting for them over the people.

Since when did the people lobby the politicians for help...


this whole process makes me sick and even more partisan than normal...but wont go on about it.

reply to post by ExPostFacto


Tort reform helps keep the cost of healthcare down. Do you realise that when you go the doctor or you use a hospital a great deal of the part of the cost of those services is to cover insurance in the event they get sued.

Currently this cost is out of control, because of all the frivolous and fradulent lawsuits. A lot of times the insurance company will just settle because it costs more for them to prove its BS than it does just to make a settlement.

Truth is we all pay more to cover all the people trying to game the system. That isn't fair. On top of that the reason your dumbass doctor does 50000 tests on you is because he must cover every possible scenario in case you decide to sue him.

Originally posted by ExPostFacto
Place a cap on damages at $250,000
This option doesn't sound so bad...but who does this really serve? What if a person deserves more than that amount? Shouldn't the jury decide? This amount would hurt the average citizen or small business man for sure, but does this effect a large corporation? Absolutely not, those kind of damages are peanuts.

There are several different measures of damages that can be awarded depending upon the nature of the tort. In most malpractice claims, (failure to meet the accepted standard of care or performance) actual damages may be capped at seemingly low amounts. However, actual damages are supposed to be just that: compensation for calculable losses, such as wages, medical care, earning ability.

States differ about valuing , awarding and limiting intangible damages, such as loss of consortium, pain and suffering, mental anguish. These awards are the ones that result in news stories and lawyers enrichment. Frequently, courts allow "experts" to assist a jury in evaluating these types of damages, and the past 30 years have seen the rise of many "junk science" expert theories and methods; although junk science rears its head in the non-malpractice, general negligence suits as well, such as "toxic torts."

In addition, the common law allows the award of "punitive damages" for the punishment of intentional or grossly-negligent conduct. To the extent that a defendant is guilty of intentional or grossly-negligent conduct, "caps" are generally inapplicable.
These awards are the ones that earn headlines and appeals to the highest courts, and the greatest enrichment to plaintiffs' lawyers.

Many attorneys have developed an art form of making exaggerated claims, supported by junk science, to extort settlements higher than warranted just because of the threat of a "runaway jury". Some jurisdictions are notorious for awarding high damages: Miami/Dade County, South Texas, North and South Carolina, Alabama, Cook County, and Los Angeles are notorious among them.

Caps tend to discourage attorneys from boosting run-of-the-mill claims by adding unsupportable allegations solely to add value, as opposed to compensating an injury and loss.

Add a provision for frivolous claims
The provision of tort reform that addresses frivolous claims are found in automatic reimbursement of the losing party for the attorney fees in defending a lawsuit. Again who does this serve? For years our system always has a loser and winner...what this provision does is makes attorneys not take cases unless they are almost confident they will win. This has driven many attorneys into rubber stamp type of cases where case law is solid. So who does this serve? Certainly not the average citizen that has a civil beef with a business or another person. Who it protects is big business who will hire the best lawyers, billing the highest amount of hours to scare the crap out of any would be attorney that thinks they might lose.

Having "a civil beef with a business" is not affected by the "frivolous claim" provisions. Generally, every claim, defense, or dispute has an argument and evidence in its favor. Some do not. A losing litigant will NOT be ordered to pay attorney's fees unless the court finds, from the entirety of the record, AFTER TRIAL, that the claim had no legal merit or lacked evidentiary support such that it could not have supported a verdict.

Legitimate disputes go to trial. Frivolous claims are routinely dismissed at the "summary judgment" stage before trial. Summary judgments are difficult to obtain, but when they are, they require the court to find that no legitimate dispute exists.

Create administrative levels of claims for citizens
Many administrative remedies for civil type claims have sprung up as a result of these tort reforms. Big government is now administrating and acting as a mediator between corporations and the people to settle disputes. Administrative procedures do not necessarily need attorney representation; however, many attorneys take these types of cases exclusively. So who do they serve? Generally, in administrative hearings the law is in favor of the business, and a person filing a claim has the burden of proof where the state has the option of weighing evidence in accordance with regulations that are in favor of business. These laws favor business.

Almost all of the "administrative levels" have nothing to do with government at all except their creation. They are generally a screening body to "weed-out" unsupported claims BEFORE they even get to court.

For malpractice, the administrative panels are made of professionals of similar specialties as the defendant, selected by the parties, and are moderated by professionals, teachers or experts of the same field. If they find a dispute exists, the case goes to court. If they find against the claimant, there are often avenues for a "second opinion."

I am deeply concerned with tort reform is destroying the enforcement of civil rights/liberties and making it harder for the average person to right a civil wrong done to them. I am also concerned that tort reform favors big corporations, and has little effect on small business or normal citizens. I'm curious how many share in this concern with me.

Attorneys whose reputations have been built on their ability and advocacy, such as Gerry Spence and Johnny Cochran, do (did) not fear Tort Reform.

Attorneys whose wealth has been achieved through exploitation of weaknesses in the system (John Edwards and Dickie Scruggs come to mind) rail against it.

I do not favor Federal intervention into State lawsuits.
I do not favor low caps. Many injuries caused by professionals are as grievous and devastating as those caused by disasters.

However, the Federal government has intervened before ostensibly in the name of the aggrieved, only to result in benefiting the insurance and businesses most responsible for real harm.

The "Employees Retirement Income and Security Act" (ERISA) is a case in point. Look it up. It does the exact opposite of its name and permits insurance companies and employers to run roughshod over their employees with absolutely nothing to lose for it. It is a crime.

"Social Security Disability" is another fraud. Most claimants (67%) lose their claim. They can appeal, but only 35% win on appeal. Ultimately, many SSDI claims are heard by an administrative judge, about 3 years after they were first filed, and only after having gone through the appeals process. Even then, only about 50% of claimants win.

The Federal government has NEVER enacted any compensation system or benefit system that actually benefits those most dependent upon it. Most have been perverted to enrich their administrators, and attorneys specializing in negotiating the maze of rules and processes.

The Feds need to stay out of State business. When they do, we will benefit. Who best protects you, those closest to you who know you, or those who think they know whats best for EVERYONE?

Judge for yourselves.

jw

reply to post by Mr Sunchine


I'm sorry but that is not true regarding the testing and is misdirected at lawsuits, when it should be directed at insurance companies that cover a doctor's practice. I will tell you a story. I paid nearly $400 a month for insurance through my employer. I sent my son to the doctor to get his shots. After the visit it cost me roughly $200 out of pocket to cover all the expenses after insurance picked up the other portion. So I had to go for these shots every so often and kept paying $200. I had to stop paying insurance due to financial conditions.

I returned to get my son his next battery of shots. It cost me $40. Amazed I asked the doctor why we had been paying so much before with insurance. The doctor apologized and informed me that when a person is on insurance, the insurance company mandates a bunch of name brand shots and extra procedures. Because these shots are state ordered shots and I did not have insurance they gave my son the generic brand of shot which was far more cheaper.

I learned a valuable lesson that year. Don't be fooled thinking health care rates are so high due to lawsuits. It is the insurance companies that are mandating high priced drugs or certain procedures be performed.

Originally posted by ExPostFacto
reply to post by Mr Sunchine

 

I'm sorry but that is not true regarding the testing and is misdirected at lawsuits, when it should be directed at insurance companies that cover a doctor's practice. I will tell you a story. I paid nearly $400 a month for insurance through my employer. I sent my son to the doctor to get his shots. After the visit it cost me roughly $200 out of pocket to cover all the expenses after insurance picked up the other portion. So I had to go for these shots every so often and kept paying $200. I had to stop paying insurance due to financial conditions.

I returned to get my son his next battery of shots. It cost me $40. Amazed I asked the doctor why we had been paying so much before with insurance. The doctor apologized and informed me that when a person is on insurance, the insurance company mandates a bunch of name brand shots and extra procedures. Because these shots are state ordered shots and I did not have insurance they gave my son the generic brand of shot which was far more cheaper.

I learned a valuable lesson that year. Don't be fooled thinking health care rates are so high due to lawsuits. It is the insurance companies that are mandating high priced drugs or certain procedures be performed.

So, a good start at tort reform would be to simply eliminate insurance companys from the getgo and come up with a direct local hospital retension for any potential disasters...There ya go, no insurance tard in the way, no government agent in the way, just pay a few bucks directly to the hospital per month and bank it.

reply to post by jdub297


Wow...thanks for your contribution to this thread. I agree the federal government needs to stay out of a states way in some regards. ERISA is terrible I agree. FMLA is another administrative thing that is quite pointless due to the 50/75 rule, although smaller companies benefit where the employee loses out. FLSA remedies have become tighter over the years now resulting in almost no payout for an claimant. Worker's Comp is a joke in some states, and retaliation claims can do nothing but pay you back and put you back to work. SSD is another area that I agree it takes forever for someone to go through that process and then only have a slight chance of winning even when they are clearly disabled.

BTW I love Gerry Spence. I think I've read all his books.

reply to post by SaturnFX


You know I often wondered about that. Why is there a middle man anyway? Although not the point of this thread, I get your point. There are many doctors now offering sliding scale options for health care. How is that possible if they are all supposedly going broke due to lawsuits? Or is it the insurance companies that are going broke? I think not...look at their profit margins.

reply to post by ExPostFacto

I learned a valuable lesson that year. Don't be fooled thinking health care rates are so high due to lawsuits. It is the insurance companies that are mandating high priced drugs or certain procedures be performed.

I cannot speak to what your insurance required or agreed to pay for. But most practitioners and facilities DO over-staff and over-prescribe to avoid a claim of not having done everything possible, even when THAT is not the legal or medical standard of care.

The core of malpractice is the"standard of care" and any good lawyer can buy himself a "junk science" "expert" to say that failure to do some thing that wasn't done was not in keeping with the "standard of care." So, EVERYTHING is ordered, sometimes twice!

As for higher costs of prescriptions, many insurance companies use "formularies" or lists of approved medication for certain treatments (again, the "standard of care").

FEDERAL laws prevent carriers from offering insurance across state borders. Perhaps if you or your employer were able to shop around, across state lines, you might have found an insurer that allowed use of generics. Mine does.

jw

reply to post by SaturnFX

So, a good start at tort reform would be to simply eliminate insurance companys from the getgo and come up with a direct local hospital retension for any potential disasters...There ya go, no insurance tard in the way, no government agent in the way, just pay a few bucks directly to the hospital per month and bank it.

A Doctor in New York did this a while back: $39 to $79/month for almost all general and preventive care, even minor surgery! It was so popular he had to open extra clinics.

Guess what! The State of New York forced him to quit, claiming he was offering "insurance" without THEIR approval.

Government knows best?
When the government, or insurance, comes between the customer/patient and the provider/seller, the customer ALWAYS loses.

jw

reply to post by ExPostFacto


Personally I think your doctor just stuck it to you. He knew you had insurance and so he didn't tell you the options. Those doctors love a free vacation from their drug reps.

One thing you must do when you go the doctor is before he gives you a shot or prescription is ask him what other drugs are available and what is the cost to benefit ratio so you can make a wise decision. Take if from me I didn't have insurance for years and I got wise to the game.

This is why I believe people should only have catastrophic health insurance and pay for doctor visits out of pocket. If it was more your money than the insurance companies you would be a lot more inquistive on costs and make much cheaper decisions.

Always remember that your doctor doesn't give two shots about you. He only sees you as a means to an end to pay for the nice house and the new Beemer.

reply to post by ExPostFacto

There are many doctors now offering sliding scale options for health care. How is that possible if they are all supposedly going broke due to lawsuits? Or is it the insurance companies that are going broke? I think not...look at their profit margins.

A patient who selects their own doctor and receives the care THEY want is happier than one whose doctor and care were dictated by some insurance adjuster or "plan." Happier clients do not sue, even if the doctor slips up sometimes.

Insurance carriers makes huge profits in numbers of $$, but not in % profits. Their "margins" are actually smaller than most other major industries. The providers sometimes have the highest profit margins

If people could use their own tax-free dollars for basic care it would be much cheaper and we'd be healthier.

Insurance should only come into play for real risks like accidents and unforeseen diseases. Otherwise, it's not really "insurance," it's just someone else's money and control. We give up control in exchange for the money.

It doesn't work. Never has, never will.

jw

reply to post by Mr Sunchine

This is why I believe people should only have catastrophic health insurance and pay for doctor visits out of pocket. If it was more your money than the insurance companies you would be a lot more inquistive on costs and make much cheaper decisions.

I've been saying this for years! There's even a 1,000 word post on here somewhere where I set out such a plan for "real reform."

If the Feds let us keep some of our money tax free for basic healthcare, we could afford and control it. Insurers could be involved on risks, which is what it is supposed to be for. Just as with cars, hurricanes and flying; you'd pay according to the risk.

star 4 you.

jw

reply to post by jdub297


Thanks for the star and I couldnt agree more. If people would take more responsibility for what goes on around them we could bring the cost way down.

Using tax free health care dollars is great. It gives way more freedom. No BS of going to the doctor to get permission to go the doctor you know you needed to go to in the first place.

Now if we could just get permission to buy our own antibiotics or at least like a place we could go for $20 for a prescription for antibiotics that would save a fortune.

I think it is ridiculous that you or your insurance company has to drop $100 just so you can get a prescription for $5 worth of antibiotics when you know before you call the damn doctor that you have a sinus infection. What a waste.

[edit on 27-2-2010 by Mr Sunchine]

reply to post by Mr Sunchine


Those a excellent points both of you in regard to actually making health care cheaper. I think it is testament to the issue of tort reform. Take out the middle man and there is usually no need to sue, since you feel responsible for your decisions. My point of this thread wasn't to discuss medical malpractice specifically but it seems the most controversial. However, you have identified a number of ways to drive down costs which spell loss of profit for companies. Without companies foregoing profit to redesign their system to make it affordable, tort reform to keep their company from being sued is the only way in their mind.

The whole concept of liability is perverted to the service of the officers of the court. Medicine is the attempt to prevent the inevitable, there is rarely a truly simple explanation and proximate cause of death and disease. The legal assumption is that if everything is done correctly no death or disability is possible. For the service of promoting this fallacy, the successful attorney takes over half of the settlment on average, and pollutes logic through the promotion of fantasy. Even on dropped lawsuits tens of thousands of dollars are wasted in the irresponsible dance of spinning misperceptions of cause and responsibility. When the epitaph of this country is finished, it will be that the officers of the court have created such an entitlment mentality and suborned such a level of ignorance and irresponsibility within the public that no realistic possibility for social efficiency was possible, and the expense of arguing potential rather than fact starved the system to death.
Medicine is the art of applying real world laws as best one can, while legal systems are totally derived by mans desire to interpret reality for ones own benefit at the expense of all others. Legally in fact malpractice is anger at the lack of perfection, where perfection is not possible. While the claim is that one need not be perfect, in actuality the concept applied is that the practitioner can indeed be less than perfect, just not with my client. This guarantees income for officers of the court, but doesnt change reality or outcome positively, simply adding to the cost of dealing with reality by adding a fantasy tax. What needs to be done is to cap reimbursement for lawyers, because the costs of making them multimillionaires from misrepresenting reality is passed on as a tax upon the entire system. No matter what one does, one wil get older, sicker and eventually die of something, and nothing can be done about it. Malpractice is cutting off the wrong leg, not failing to provide immortality or superhuman function. In promulgating the lie, the officers of the court, all the way up to zero conspire to keep us all ignorant and dependent upon a corrupt system specifically designed to allow those least capable of interpreting or representing reality, in charge of it. The US is toast, with no potential for recovery back to a functional society, and this is why.
When predators design a system, the only system they design is a farm....

reply to post by thatredpill


I agree wholeheartedly with your analysis. Is it fair to say that the attorney associations support this lie to justify their education levels, and the resulting profits they gouge from customers? When I look at what tort reform actually accomplishes, it seems to guarantee an absurd amount of income related to what they charge their clients. I wonder sometimes if getting rid of the education requirements for attorneys would act as a free market check on lawsuits, driving down costs associated with filing a lawsuit or defending from a lawsuit. Imagine if it only took a few thousand dollars to defend yourself in court. Imagine if it only took a few thousand dollars to sue someone. Once upon a time anyone could simply take a test to become a lawyer...as long as one had the knowledge whether self educated or through an institution. Then the bar association created standards that seemed to elevate an attorneys pay.

You make great points...star for you!

reply to post by ExPostFacto


Gee, I wonder if the Bar and Insurance Companies are in cahoots with the AMA and the hospitals?
The Law of Unintended Consequence seems to apply throughout our current approach to health care and tort reform.