Rich Man Poor Man
- Thread starter domtoni
- Start date
Jeff Young
GT40s Supporter
By way of background, I am (mostly) a defense lawyer although most of my practice has involved commercial disputes and not personal injury.
I think the words "tort reform" get bandied around as a cure all without folks really knowing what they mean or want. Kind of like "social justice" or "small government" or "go back to the Constitution" or "hope and change."
Most states currently have some version of the following:
1. Prior to filing a medical malpractice action, a plaintiff has to have a physician review and sign off on the claim (see, for example, Rule 9(j) in North Carolina).
2. Punitive damages are capped at some amount. In NC, that is the lesser of $250,000 or 3X actual damages.
3. If a frivolous claim is filed, fees can be awarded to the defending party under Rule 11 or its equivalent in other states.
So I'm not really sure what else is left to reform. Some states have gone so far as to cap compensatory damage awards - the direct, actual costs and damages you incur if injured - such as Virginia. You have "gatekeepers" on the front end to keep out frivoluous claims, you have caps on available damages and you have mechanisms to punish plaintiffs and their lawyers who bring claims with no merit.
What else do we want?
I can also tell you that a lot of people talk about tort reform but their tune changes once injured. Some of the posting above makes it seem like plaintiffs have all the power and settlement leverage. That is far from the case. If any of you ever have a relative or friend who is an actual, real victim of medical malpractice (and yes, it does happen), they'll get to see just how reasonable malpractice (or other) insurers can be.
The real culprit is "Americanism." We are gunslingers. When wronged, we want revenge. That means when injured, we sue. It is our culture. It has very little to do with the system, and far more to do with our culture.
Last, tort reform wouldn't make a real difference in the mechanism driving health care costs in this country. It's a part of it, certainly, but the largest issue we have remains the spending we do on folks in the last six months of their lives. That's where reform is needed.
I think the words "tort reform" get bandied around as a cure all without folks really knowing what they mean or want. Kind of like "social justice" or "small government" or "go back to the Constitution" or "hope and change."
Most states currently have some version of the following:
1. Prior to filing a medical malpractice action, a plaintiff has to have a physician review and sign off on the claim (see, for example, Rule 9(j) in North Carolina).
2. Punitive damages are capped at some amount. In NC, that is the lesser of $250,000 or 3X actual damages.
3. If a frivolous claim is filed, fees can be awarded to the defending party under Rule 11 or its equivalent in other states.
So I'm not really sure what else is left to reform. Some states have gone so far as to cap compensatory damage awards - the direct, actual costs and damages you incur if injured - such as Virginia. You have "gatekeepers" on the front end to keep out frivoluous claims, you have caps on available damages and you have mechanisms to punish plaintiffs and their lawyers who bring claims with no merit.
What else do we want?
I can also tell you that a lot of people talk about tort reform but their tune changes once injured. Some of the posting above makes it seem like plaintiffs have all the power and settlement leverage. That is far from the case. If any of you ever have a relative or friend who is an actual, real victim of medical malpractice (and yes, it does happen), they'll get to see just how reasonable malpractice (or other) insurers can be.
The real culprit is "Americanism." We are gunslingers. When wronged, we want revenge. That means when injured, we sue. It is our culture. It has very little to do with the system, and far more to do with our culture.
Last, tort reform wouldn't make a real difference in the mechanism driving health care costs in this country. It's a part of it, certainly, but the largest issue we have remains the spending we do on folks in the last six months of their lives. That's where reform is needed.
Pat
Supporter
Jeff, in fairness, North Carolina was rated among the best in terms of equitable tort cost and where I live in Florida is dead last by the free market Pacific Research Institute.
That said, you need to factor in not just the hard dollar cost in legal fees, insurance but also the soft dollar cost of time involved for a medical practitioner to fend off the suits as well as the cost of defensive medicine. That is physician time away from patients and not earning a dime to fund his employee expense, insurance, etc. as well and needless tests and procedures that eat time and money. Add to that the number of physicians leaving practice, new ones opting for lower types risk practice and you get a care provider shortage that will also drive cost. Go visit any hospital that handles emergency trauma cases and look at their balance sheet. I spent some time with the regional CEO of a national clinic and his view was that they will be out of business in 3-5 years as they can't support the unfunded government mandates and legal compliance. The reductions in Medicare reimbursements already have him operating below cost.
Certainly each state laws is different but the CBO suggested the following enacted nationally:
•Cap noneconomic damages — in other words, for pain and suffering — at $250,000;
•Cap punitive damages at $500,000 or 2 times the award for economic damages, whichever is greater;
•Modify the so-called "collateral source" rule so that juries who are setting malpractice awards must subtract the income that injured plaintiffs collect from health, life, and automobile insurance and workers' compensation, or at least be informed of that income;
•Set the statute of limitations for filing a malpractice suit at 1 year for adults and 3 years for children from the date an injury is discovered;
•Replace "joint-and-several" liability, which makes any defendant in a suit liable for all the damages, with a fair-share rule that sets damages for a defendant in proportion to his or her share of responsibility for the injury.
I would also add some liability for expert witnesses that stilt testimony to whoever hires them or provides knowingly falsify or misleading data. Jeff you may be familiar with University of North Carolina at Chapel Hill medical researcher Richard Semelka who decided to prove once and for all that paid experts form their opinion to favor those who pay them. Semelka sent 6 CT Scans, including one that was in a lawsuit, for analysis to 31 radiologists with different ranges of professional experience and workplace setting. Although interpreting CT Scans can be a subjective art, 30 out of 31 radiologists came to the same conclusion as the sued radiologist. This conclusion was different from what the paid expert radiologist concluded during the lawsuit.
I would also enact mandatory arbitration in certain types of cases.
The CBO contends healthcare providers would enjoy a 10% cut in their malpractice insurance premiums if tort reform was enacted, according to the CBO. In Miami, where premiums are the highest in the nation, that reduction would save $5800 for a general internist currently paying a base rate of roughly $58,000, according to Michael Matray, editor of Medical Liability Monitor.
But the killer (no pun intended) is the time these things take up. That's why my friends are sick of it (along with having to listen to a big time litigator in Orlando's commercials all day long, his billboards and his relentless self-promotion).
That said, you need to factor in not just the hard dollar cost in legal fees, insurance but also the soft dollar cost of time involved for a medical practitioner to fend off the suits as well as the cost of defensive medicine. That is physician time away from patients and not earning a dime to fund his employee expense, insurance, etc. as well and needless tests and procedures that eat time and money. Add to that the number of physicians leaving practice, new ones opting for lower types risk practice and you get a care provider shortage that will also drive cost. Go visit any hospital that handles emergency trauma cases and look at their balance sheet. I spent some time with the regional CEO of a national clinic and his view was that they will be out of business in 3-5 years as they can't support the unfunded government mandates and legal compliance. The reductions in Medicare reimbursements already have him operating below cost.
Certainly each state laws is different but the CBO suggested the following enacted nationally:
•Cap noneconomic damages — in other words, for pain and suffering — at $250,000;
•Cap punitive damages at $500,000 or 2 times the award for economic damages, whichever is greater;
•Modify the so-called "collateral source" rule so that juries who are setting malpractice awards must subtract the income that injured plaintiffs collect from health, life, and automobile insurance and workers' compensation, or at least be informed of that income;
•Set the statute of limitations for filing a malpractice suit at 1 year for adults and 3 years for children from the date an injury is discovered;
•Replace "joint-and-several" liability, which makes any defendant in a suit liable for all the damages, with a fair-share rule that sets damages for a defendant in proportion to his or her share of responsibility for the injury.
I would also add some liability for expert witnesses that stilt testimony to whoever hires them or provides knowingly falsify or misleading data. Jeff you may be familiar with University of North Carolina at Chapel Hill medical researcher Richard Semelka who decided to prove once and for all that paid experts form their opinion to favor those who pay them. Semelka sent 6 CT Scans, including one that was in a lawsuit, for analysis to 31 radiologists with different ranges of professional experience and workplace setting. Although interpreting CT Scans can be a subjective art, 30 out of 31 radiologists came to the same conclusion as the sued radiologist. This conclusion was different from what the paid expert radiologist concluded during the lawsuit.
I would also enact mandatory arbitration in certain types of cases.
The CBO contends healthcare providers would enjoy a 10% cut in their malpractice insurance premiums if tort reform was enacted, according to the CBO. In Miami, where premiums are the highest in the nation, that reduction would save $5800 for a general internist currently paying a base rate of roughly $58,000, according to Michael Matray, editor of Medical Liability Monitor.
But the killer (no pun intended) is the time these things take up. That's why my friends are sick of it (along with having to listen to a big time litigator in Orlando's commercials all day long, his billboards and his relentless self-promotion).
Ian Anderson
Lifetime Supporter
For years Lawyers and Accountants were not allowed to advertise.
The only exception was in "Yellow Pages"
Stopping them advertising would stop the "borderline" cases from even thinking about suing
It would also help in reducing the advert crud on most channels
Ian
The only exception was in "Yellow Pages"
Stopping them advertising would stop the "borderline" cases from even thinking about suing
It would also help in reducing the advert crud on most channels
Ian
Jeff Young
GT40s Supporter
It also violates our Constitutional guarantee of free speech.
On Veek's points:
1. Cap non-economic damages, like pain and suffering. Sounds good. But then tell the guy who is burned in a preventable industrial fire at age 25 and will be in pain for the rest of his life that he gets $250,000 for that.
2. Cap on punitives. Most states already have this and the Supreme Court has expressly ruled punitives out of whack with actual damages are unconstitutional.
3. Ah, the collateral source rule. The idea here is that we don't tell the jury that an injured person has received insurance benefits so that the jury won't exclude health care costs from the award that were paid for by those benefits. Since the insurer has a lien on those portions of the award, technically the injured person is obligated to pay them back (happens sometimes, sometimes the insurer doesn't pursue it). Getting rid of this rule screws the insurer, who effectively can't recover for losses it paid out that were caused by someone else.
4. While I don't see the reason the statute should be that short, I also don't see any real effect on law suits by shortening it. You may weed out some, but not many.
5. Most states already have comparative fault. The reason we have joint and several liability is that the injured party may not be aware of all that contributed to the injury. The question here is not really who pays the entire loss, but who is obligated to go weed out everyone who contributed to it: the injured plaintiff or the defendants? In the hospital malpractice scenario, I think it makes perfect sense for a plaintiff to be allowed to sue a single defendant, and have that other defendant (who as a health care professional can more readily determine who else may be at fault) bring in others and apportion loss between them.
So of the above, we either (a) already have the reform or (b) it won't have any real effect on cost.
The problem here is culture guys, not "lack of tort reform." In America, our response to the slightest slight is "sue." That's not true in other places.
On Veek's points:
1. Cap non-economic damages, like pain and suffering. Sounds good. But then tell the guy who is burned in a preventable industrial fire at age 25 and will be in pain for the rest of his life that he gets $250,000 for that.
2. Cap on punitives. Most states already have this and the Supreme Court has expressly ruled punitives out of whack with actual damages are unconstitutional.
3. Ah, the collateral source rule. The idea here is that we don't tell the jury that an injured person has received insurance benefits so that the jury won't exclude health care costs from the award that were paid for by those benefits. Since the insurer has a lien on those portions of the award, technically the injured person is obligated to pay them back (happens sometimes, sometimes the insurer doesn't pursue it). Getting rid of this rule screws the insurer, who effectively can't recover for losses it paid out that were caused by someone else.
4. While I don't see the reason the statute should be that short, I also don't see any real effect on law suits by shortening it. You may weed out some, but not many.
5. Most states already have comparative fault. The reason we have joint and several liability is that the injured party may not be aware of all that contributed to the injury. The question here is not really who pays the entire loss, but who is obligated to go weed out everyone who contributed to it: the injured plaintiff or the defendants? In the hospital malpractice scenario, I think it makes perfect sense for a plaintiff to be allowed to sue a single defendant, and have that other defendant (who as a health care professional can more readily determine who else may be at fault) bring in others and apportion loss between them.
So of the above, we either (a) already have the reform or (b) it won't have any real effect on cost.
The problem here is culture guys, not "lack of tort reform." In America, our response to the slightest slight is "sue." That's not true in other places.
You may find this interesting on UK taxation of certain sport stars and its impact on local stimulus.
A U.K. tax levied on endorsement income and appearance fees of foreign sports and entertainment figures working in the country yielded a mere £68 million in 2009-2010. While this might simply be accepted as another form of revenue for the United Kingdom's government, the people of the country recognize the adverse effects that the tax has on domestic sports events. Rafael Nadal, for example, will prepare for Wimbledon in Germany instead of preparing at the traditional facility in London. Usain Bolt, the Jamaican Olympic sprinter, avoided competing in the United Kingdom altogether last year. Numerous sports stars avoid UK events if at all possible in order to avoid losing money, says Bloomberg.
In addition to the paltry receipts from 2009-2010, the Foreign Entertainers Unit of Her Majesty's Revenue & Customs collected only £56 million from the tax in 2008-2009 and £58 million in 2007-2008.
According to a report by London-based accountancy and advisory firm, £7 million are collected annually from sports stars alone.
The ATP Finals tournament (men's tennis), which is on its third year of a five-year contract in London, may be moved upon completion of its term, taking with it £100 million of annual economic stimulus, as estimated by a 2009 report commissioned by title sponsor Barclays Plc.
Tax officials at the government's treasury have been quick to defend the tax, pointing out that players' taxed income will not be taxed again by their home countries, increasing the fairness of the policy. Yet this argument does not seem to resound with players: athletes continue to avoid U.K. competitions, as the tax is structured such that each additional U.K. event greatly increases an athlete's tax burden.
Many of those who lobby for the abolition of the law point out inconsistencies between sports. While individual sports are subject to the full force of the tax, team sports such as soccer are exempt. For those who see little difference between stars of various sports, the tax seems arbitrarily applied and significant in its impacts on the country's sports scene.
Source: Danielle Rossingh, "U.K. Tax that Pushed Rafael Nadal to Germany Brings in $105 Million a Year," Bloomberg, November 25, 2011.
For text:
U.K. Tax That Pushed Rafael Nadal to Germany Brings in $105 Million a Year - Bloomberg
A U.K. tax levied on endorsement income and appearance fees of foreign sports and entertainment figures working in the country yielded a mere £68 million in 2009-2010. While this might simply be accepted as another form of revenue for the United Kingdom's government, the people of the country recognize the adverse effects that the tax has on domestic sports events. Rafael Nadal, for example, will prepare for Wimbledon in Germany instead of preparing at the traditional facility in London. Usain Bolt, the Jamaican Olympic sprinter, avoided competing in the United Kingdom altogether last year. Numerous sports stars avoid UK events if at all possible in order to avoid losing money, says Bloomberg.
In addition to the paltry receipts from 2009-2010, the Foreign Entertainers Unit of Her Majesty's Revenue & Customs collected only £56 million from the tax in 2008-2009 and £58 million in 2007-2008.
According to a report by London-based accountancy and advisory firm, £7 million are collected annually from sports stars alone.
The ATP Finals tournament (men's tennis), which is on its third year of a five-year contract in London, may be moved upon completion of its term, taking with it £100 million of annual economic stimulus, as estimated by a 2009 report commissioned by title sponsor Barclays Plc.
Tax officials at the government's treasury have been quick to defend the tax, pointing out that players' taxed income will not be taxed again by their home countries, increasing the fairness of the policy. Yet this argument does not seem to resound with players: athletes continue to avoid U.K. competitions, as the tax is structured such that each additional U.K. event greatly increases an athlete's tax burden.
Many of those who lobby for the abolition of the law point out inconsistencies between sports. While individual sports are subject to the full force of the tax, team sports such as soccer are exempt. For those who see little difference between stars of various sports, the tax seems arbitrarily applied and significant in its impacts on the country's sports scene.
Source: Danielle Rossingh, "U.K. Tax that Pushed Rafael Nadal to Germany Brings in $105 Million a Year," Bloomberg, November 25, 2011.
For text:
U.K. Tax That Pushed Rafael Nadal to Germany Brings in $105 Million a Year - Bloomberg
You know Jeff, we've had some words with eachother before, but I have to say that I agree with you 100%. :shocked:
I don't even consider that a bad thing. Just that I've started to look at the world less as a "member of the club" and more as a person living in it. It's appalling how we justify our actions, so long as they benefit ourselves. I think many times people forget they are actually part of a greater whole...I don't mean this in some Kumbaya way, but people don't even act as if they are part of a community, even in the small city I live in.
It's pretty easy to be a selfish asshole when you've got it better than others and can pull the "poor people are lazy, entitled, stupid" argument. Because we all KNOW that the 9% of Americans relying on unemployment and probably another 6-9% on top of that who are under-employed are ALL lazy, entitled and stupid.
I see the situation much the same as you do. And I agree with VEEK that the Government is out of control with spending. But the BIGGEST problem I see with ALL of this is that it's ALL ABOUT MONEY. Every single bit of it revolves around coin...who's chasing it, who's keeping it, who's losing it and who'll never see it.
I don't have a problem with a Doctor being paid for his craft. I have a problem when the Doctor's portion of my bill is only about 10-15% of it, with the rest going to vastly over-inflated overhead and unadulterated profit for the HMO/corporate hospital/executive bonuses.
Doctors take the hippocratic oath to uphold, but corporate mantra is: PROFIT, no matter what. There is no humanity in that, only the bottom line.
We have commoditized EVERYTHING in this world, including your dignity & safety. If a dime can't be made off it, it's ignored or derided. It's repulsive. And VERY anti-social.
As to the stratification of wealth, I believe it's cause is plain, though many don't like to actually say it. The money-changers skim the cream off the top, while the people who actually WORK (manufacturing, trades...and yes, even the medical field falls under this...service, etc) are being squeezed by everyone from both directions. Only those on top...Wall Street and Big Banks...actually call the shots. They squeeze the account holders for an extra $5 a month to access their OWN money, because you know they can't be profitable with the multitude of fees they already charge. They play slot-machine casino games with OUR pension monies, get a publicly funded bailout for their losses, then get to celebrate when their credit default swap "insurance" pays off with multi-Billion dollar bonuses...while receiving money from the "house" at basically NO cost, then collecting an easy 4-5% on top of that for doing nothing more than being a clearing-house for NATIONAL DEBT.
Let's not forget that our Supreme Court says money is "free speech" and that the incestuous cabal that is the banking industry/Washington cabinet/lobbyists make and define the rules that now bind us.
It used to be that the only way to create wealth was to actually MAKE something...now you only have to create vehicles meant specifically to self-destruct to separate groups/individuals/organizations (public & private) from their money as an "investment", then sit back and skim the cream off the top while providing ABSOLUTELY NOTHING of value! Added bonus if you can pass your losses off to the public as a "loan" from the federal government (additional debt for your heirs), while keeping your profits from your "insurance policy" created specifically to cover you in case those original faulty financial vehicles DO tank!
When the laugh-til-you-cry fiction of "paper people" have more rights and power than REAL, LIVE human beings, and MONEY is ALL that matters, there is a fundamental problem with the idea and function of society.
All of the Right/Left, Conservative/Liberal, Rich/Poor divisiveness just further emboldens the true predators to slink through the herd unscathed. Where is our sheepdog to protect us from these wolves in cashmere suits?
Just remember that the wealthy may work hard, but they don't get wealthy from hard work alone...they get there by leveraging their money with other people's money.
Notice that Bill Gates & Warren Buffet's wealth didn't evaporate when the Great Recession hit, unlike MILLIONS of middle-class Americans. Hell, even many "1%'ers" lost ALOT of money with their investments. How the hell does wealth just EVAPORATE...enough to cause a domino effect around the globe, including pushing entire countries into or to the point of bankruptcy...while many VERY rich men's networth didn't even fluctuate a few tenths of a percentage point?!? And better yet, why should the actions of a few men acting on behalf of corporations, be able to have such a disastrous effect on the rest of the world?
Something stinks and it's not the hippies camped out at OWS, nor is it the Tea Partiers with their own protests. We can't survive as a nation when we punish PEOPLE for being human (in the most biological sense), while rewarding non-entities for repeated, intentional bad behavior. The Constitution doesn't grant any rights to non-people, yet we have given them carte-blanche at the expense of our own rights.
I don't even consider that a bad thing. Just that I've started to look at the world less as a "member of the club" and more as a person living in it. It's appalling how we justify our actions, so long as they benefit ourselves. I think many times people forget they are actually part of a greater whole...I don't mean this in some Kumbaya way, but people don't even act as if they are part of a community, even in the small city I live in.
It's pretty easy to be a selfish asshole when you've got it better than others and can pull the "poor people are lazy, entitled, stupid" argument. Because we all KNOW that the 9% of Americans relying on unemployment and probably another 6-9% on top of that who are under-employed are ALL lazy, entitled and stupid.
I see the situation much the same as you do. And I agree with VEEK that the Government is out of control with spending. But the BIGGEST problem I see with ALL of this is that it's ALL ABOUT MONEY. Every single bit of it revolves around coin...who's chasing it, who's keeping it, who's losing it and who'll never see it.
I don't have a problem with a Doctor being paid for his craft. I have a problem when the Doctor's portion of my bill is only about 10-15% of it, with the rest going to vastly over-inflated overhead and unadulterated profit for the HMO/corporate hospital/executive bonuses.
Doctors take the hippocratic oath to uphold, but corporate mantra is: PROFIT, no matter what. There is no humanity in that, only the bottom line.
We have commoditized EVERYTHING in this world, including your dignity & safety. If a dime can't be made off it, it's ignored or derided. It's repulsive. And VERY anti-social.
As to the stratification of wealth, I believe it's cause is plain, though many don't like to actually say it. The money-changers skim the cream off the top, while the people who actually WORK (manufacturing, trades...and yes, even the medical field falls under this...service, etc) are being squeezed by everyone from both directions. Only those on top...Wall Street and Big Banks...actually call the shots. They squeeze the account holders for an extra $5 a month to access their OWN money, because you know they can't be profitable with the multitude of fees they already charge. They play slot-machine casino games with OUR pension monies, get a publicly funded bailout for their losses, then get to celebrate when their credit default swap "insurance" pays off with multi-Billion dollar bonuses...while receiving money from the "house" at basically NO cost, then collecting an easy 4-5% on top of that for doing nothing more than being a clearing-house for NATIONAL DEBT.
Let's not forget that our Supreme Court says money is "free speech" and that the incestuous cabal that is the banking industry/Washington cabinet/lobbyists make and define the rules that now bind us.
It used to be that the only way to create wealth was to actually MAKE something...now you only have to create vehicles meant specifically to self-destruct to separate groups/individuals/organizations (public & private) from their money as an "investment", then sit back and skim the cream off the top while providing ABSOLUTELY NOTHING of value! Added bonus if you can pass your losses off to the public as a "loan" from the federal government (additional debt for your heirs), while keeping your profits from your "insurance policy" created specifically to cover you in case those original faulty financial vehicles DO tank!
When the laugh-til-you-cry fiction of "paper people" have more rights and power than REAL, LIVE human beings, and MONEY is ALL that matters, there is a fundamental problem with the idea and function of society.
All of the Right/Left, Conservative/Liberal, Rich/Poor divisiveness just further emboldens the true predators to slink through the herd unscathed. Where is our sheepdog to protect us from these wolves in cashmere suits?
Just remember that the wealthy may work hard, but they don't get wealthy from hard work alone...they get there by leveraging their money with other people's money.
Notice that Bill Gates & Warren Buffet's wealth didn't evaporate when the Great Recession hit, unlike MILLIONS of middle-class Americans. Hell, even many "1%'ers" lost ALOT of money with their investments. How the hell does wealth just EVAPORATE...enough to cause a domino effect around the globe, including pushing entire countries into or to the point of bankruptcy...while many VERY rich men's networth didn't even fluctuate a few tenths of a percentage point?!? And better yet, why should the actions of a few men acting on behalf of corporations, be able to have such a disastrous effect on the rest of the world?
Something stinks and it's not the hippies camped out at OWS, nor is it the Tea Partiers with their own protests. We can't survive as a nation when we punish PEOPLE for being human (in the most biological sense), while rewarding non-entities for repeated, intentional bad behavior. The Constitution doesn't grant any rights to non-people, yet we have given them carte-blanche at the expense of our own rights.
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