Healthcare Trade-Off

[Juror#8]

Why would you cap noneconomic damages before punitive damages?

 

Some of the worst things that can possibly happen to you are noneconomic in nature. $250K would make me whole if some gross negligence on the part of a manufacturer causes me to lose my eye sight for the rest of my life? That's justice b/c we need to "stop excessive jury awards" from hurting the manufacturing industry? Maybe Texas justice...but not my idea of justice.

 

Actually, losing your eye/eyesight is very much a primarily economic hardship....unless you're claiming a resulting deficit in quality of life or loss of comapanionship, etc.

 

I still feel that NEDS should better reflect the reasonable and foreseeable impact that it has on the plaintiff. It is difficult to quantify how many fewer instances you would have gotten laid had you not lost your middle finger, or what not playing basketball means pecuniarily.

 

It is very inexact for a jury, as finder of fact, to quantify, monetarily, those pasttimes. I'm not saying that they over or under value the award, only that the valuation is arbitrary. Therefore, I feel that a judge may be better able to dispassionately opine with respect to the pecuniary value of reduced personal ________. Judges also have the benefit of precedence to guide them in that calculation.

 

I actually feel that the jury is in a better position to award punitives than NEDS (but still feel that punitive damages awards should be within a governing parameter [a very liberal parameter though]). There is no way that a jury can understand how someone not being able to do _______ will impact them personally - and consequently monetize that. I have more confidence in a jury to appreciate a wrongdoing, appreciate the impact that that negligence has within the marketplace, appreciate the economic justification for maintaining the negligent business practice, and render a corresponding economic penalty.

Edited June 13, 2012 by Juror#8

[dayman]

LOL unless I would be claiming a loss of enjoyment of life? Of course I would be claiming loss of enjoyment in life. If I can't work anymore, we can have the battle of economists and figure out my earnings lost and all that...afterwords of course I'M !@#$ING BLIND. lol

 

Can the jury tell how much money it would take to approximate making me whole as a result of that? Of course not, nobody can. I can never actually be made whole by money, it is a fiction. But that is no reason to deny me damages in an attempt to fairly compensate me for that. If the judge wants to reduce it afterwords b/c the jury was excessive FINE!!! So be it!!! But not the damn state congress with some cap of $250K that bears absolutely no relationship to me or my situation...that's completely unfair and honestly it's not justice it's just corrupt protectionism at the expense of my rights (in this hypothetical situation of course...I did not lose my eyes in Texas )

Edited June 13, 2012 by TheNewBills

[Simon]

I don't really have anything to contribute cuz I'm not smart enough to know how to address what is clearly a wildly over-litigous society, and yet do so without removing some necessary protections for patients/victims/consumers.

Just wanted to say that I'm enjoying the enlightening discussion.

[WorldTraveller]

The studies that have been performed regarding tort reform only show demonstrable tangible savings that don't include medical practices that would be positively altered due to a more prudent approach.

 

I would argue the net overall increase of premiums from not implementing tort reform does far more damage from a macro perspective and as a whole to ourr society than the few injustices of failures of protections caused to patients and consumers because of the enactment of the reform.

Edited June 14, 2012 by WorldTraveller

[dayman]

The studies that have been performed regarding tort reform only show demonstrable tangible savings that don't include medical practices that would be positively altered due to a more prudent approach.

 

I would argue the net overall increase of premiums from not implementing tort reform does far more damage from a macro perspective and as a whole to ourr society than the few injustices of failures of protections caused to patients and consumers because of the enactment of the reform.

 

 

LOL at the wording of the first sentence. Look at the stats in Texas since 2003. Doesn't seem to be true.

 

As for the second sentence. I would argue you should move it China.

 

(no offense of course)

[WorldTraveller]

LOL at the wording of the first sentence. Look at the stats in Texas since 2003. Doesn't seem to be true.

 

As for the second sentence. I would argue you should move it China.

 

(no offense of course)

I can't help that you aren't able to understand what I was saying.

 

No offense of course.

[ExiledInIllinois]

The studies that have been performed regarding tort reform only show demonstrable tangible savings that don't include medical practices that would be positively altered due to a more prudent approach.

 

I would argue the net overall increase of premiums from not implementing tort reform does far more damage from a macro perspective and as a whole to ourr society than the few injustices of failures of protections caused to patients and consumers because of the enactment of the reform.

Don't let them raise premiums.

 

In coming!

[Alaska Darin]

For decades the Pharma lobby

I'm sure you mean the politicians that make sure the laws pass, right? Because without them, all the lobbyists in the world don't add up to ****.

[dayman]

I'm sure you mean the politicians that make sure the laws pass, right? Because without them, all the lobbyists in the world don't add up to ****.

 

 

Except for the ones that don't want certain laws to pass....

[Juror#8]

LOL unless I would be claiming a loss of enjoyment of life? Of course I would be claiming loss of enjoyment in life. If I can't work anymore, we can have the battle of economists and figure out my earnings lost and all that...afterwords of course I'M !@#$ING BLIND. lol

 

Can the jury tell how much money it would take to approximate making me whole as a result of that? Of course not, nobody can. I can never actually be made whole by money, it is a fiction. But that is no reason to deny me damages in an attempt to fairly compensate me for that. If the judge wants to reduce it afterwords b/c the jury was excessive FINE!!! So be it!!! But not the damn state congress with some cap of $250K that bears absolutely no relationship to me or my situation...that's completely unfair and honestly it's not justice it's just corrupt protectionism at the expense of my rights (in this hypothetical situation of course...I did not lose my eyes in Texas )

 

1. Who wants to deny you damages? Do you equate parameters on awards, or having the judge adminster awards based on precedence or something else even marginally jurisprudential, a taking or a denial? Because that is what I'm advocating - parameters.

 

2. You have a right to have a physical capability valuated by a jury, and to be entitled to receive the product of that valuation? What canon(s) did this derive from? Has it been codified?

 

Interestingly enough, I think that we're about 80% in agreement on these points but we're arguing along the periphery. I think that there should be boundaries that reasonably relate to the economic decision to introduce negligence into the marketplace.

 

Example:

 

McDonalds serves coffee that is 50 degrees hotter than industry standard and that they know, to a reasonable certainty, will cause third degree burns that require skin grafts if it is spilled and makes contact with skin (which is entirely forseeable because they serve the same through the 'drive through' window at their establishments).

 

McDonanlds figures that the price of arbitration and litigation expenses is 5 million annually but they stand to make 15 million in increased revenue by continuing to serve the hottest - and consequently, the most flavorful - coffee. In their cold, deliberate, estimation, some people's deformity still nets them 10 million - so it is good business.

 

I believe that that 'net' number should be multiplied by 3, 5, or 10 - depending on egregiousness - to arrive at a punitive damages figure that has an economic relationship to the harm done. In the McDonalds case, they were being !@#$s. They knew the issue. They had a chance to settle and save the taxpayer time and money. They had a chance to pay her medical expenses. They knew that it wasn't a "one off" instance. They had thousands of similar complaints. They ignored her. They treated her like schit. They calculated the risk of litigation against the revenue and saw a significant enough margin to continue serving scalding hot coffee to people as they're driving and likely using one hand to balance the container. They ascribed a value to people's very forseeable injuries and bet low.

 

So multiply the net number by 5, award her 50 million in punitives, plus NEDs and EDs, for a total measure of damages.

 

How do you arrive at a baseline "net" amount? Well, discovery usually. The financials are a good start. And it is amazing what CEOs, CFOs, and marketing people discuss via email and memoranda. All that schit is discoverable. And then there are the obligatory whistle-blowers and other witnesses. It almost always comes out in the wash what the business justifications are for a certain decision, and how much extra they stood to make from introducing some negligence into the marketplace.

 

For complex tort litigation, it provides a square way to assess punitive damages. NEDs should be decided by a judge for the reasons that were discussed in a previous post. Smaller litigation contexts (malpractice, some products liability actions [defective assembly, but usually not defective design], etc.) can be scaled and considered differently with more emphasis on a calculation that valuates the deviation from a standard or acceptable level of care.

 

Otherwise, the arbitrary $500,000,000 verdict for loss of a thumb nail is gonna get pimp slapped on remittitur. And the only one who loses is the taxpayer and the plaintiff (and for the sake of tense correctness, "plaintiff" is probably now the "respondent") who can't collect because the matter is tied up in protracted appeals.

Edited June 14, 2012 by Juror#8

[dayman]

Agreed that parameters are not the same as a cap. Some level of parameter setting could be tolerable...particularly if they're more akin to guidelines accompanied by a nonexclusive set of factors ... certificates of merit are also not necessarily the devil MAYBE some sort of panel (on the flip side of reform to appease those who feel the system is harassing people)... there are obviously some things that can be done and some things that have been done in certain places that can make the system work a little smoother...I would still oppose hard parameters set by congress and dance with precedent any day of the week over the corporate shank job that shapes the caps and would shape any parameters to come from your average state congress (particularly in those real conservative states)...and that's really what it comes down to with me...it's almost always going to be closer to justice there than it is in Congress at the very least you and your story are there and they look you in the eye (and the other point of view just say that makes me pro-plaintiff then so be it). If some bought judge ****s you...he does it to your face. If a jury doesn't think you deserve it...they heard your case. That's the way it should be, that's the system I prefer.

 

The punitive damages factor...meh...it's ok but the unpredictability of that hammer coming down (particularly with the larger corporations more prone to do the heartless calculations) is really what I see as the true deterrent...that fear of God so to speak...I'm not so concerned with punitive damages to tell you the truth though those are just a windfall in the end I get more riled up about the plaintiff's rightful award than I do about punitive damages.

 

 

EDIT: And btw things like corporate shank job and "bought judges"...while I do know it's fact in certain times and in certain places I do know how it makes me sound and I'll just add this edit to say that yes in general it is a bit overboard to put it like that generally but just consider "overt politics" to be the lesser included there...this is a message board after all.

Edited June 14, 2012 by TheNewBills

[birdog1960]

there's a relatively simple solution to medical malpractice problems and defensive medicine. carve out safe harbors for different diagnoses. if a patient has chest pain and a doctor does standard of care testing (evidence based and formulated by experts), then he/she should have no liability regardless of outcome. and these protocols don't need to include a "million dollar work up" in many patients. national medical groups are calling for less and less testing and screening. make it official and make it law. the other option that would appeal to physicians and i find reasonable is arbitration boards staffed by experts rather than juries. currently we expect averagew joes to become medical experts in a trial setting.

[dayman]

there's a relatively simple solution to medical malpractice problems and defensive medicine. carve out safe harbors for different diagnoses. if a patient has chest pain and a doctor does standard of care testing (evidence based and formulated by experts), then he/she should have no liability regardless of outcome. and these protocols don't need to include a "million dollar work up" in many patients. national medical groups are calling for less and less testing and screening. make it official and make it law. the other option that would appeal to physicians and i find reasonable is arbitration boards staffed by experts rather than juries. currently we expect averagew joes to become medical experts in a trial setting.

 

 

I don't think you can set a standard of care by statute...medicine is highly fact specific and the body of knowledge changes more quickly than the state congress can keep up with anyway...if less screening is the norm let that go to the negligence claim itself...as for arbitration boards I'm not opposed to voluntary arbitration but arbitration has it's own whole can of worms...

Edited June 14, 2012 by TheNewBills

[birdog1960]

I don't think you can set a standard of care by statute...medicine is highly fact specific and the body of knowledge changes more quickly than the state congress can keep up with anyway...if less screening is the norm let that go to the negligence claim itself...as for arbitration boards I'm not opposed to voluntary arbitration but arbitration has it's own whole can of worms...

it can be done. this was proposed early in the game of reform proposals. expert boards can make protocols for common conditions and symptoms. it's done in the UK for instance will they be up to date with every new study? no, but changes could be made for important new findings on the fly. that's better than the hit and miss dissemination of info we now have. daschle outlined this plan in his book just before he was nixed for healthcare czar.

 

and why not mandatory arbitration? we have people on juries now who don't know what blood actually does or have never heard the word pancreas.

[DC Tom]

I don't think you can set a standard of care by statute...medicine is highly fact specific

 

And somewhat ambiguous, despite what people would like to believe.

 

The real solution is for people to grow up and realize: not every bad thing that happens is someone else's fault. Sometimes you go to the doctor, he performs all the reasonable tests and does his due diligence, and you die anyway. Life isn't perfect. Deal with it.

 

it can be done. this was proposed early in the game of reform proposals. expert boards can make protocols for common conditions and symptoms. it's done in the UK for instance will they be up to date with every new study? no, but changes could be made for important new findings on the fly. that's better than the hit and miss dissemination of info we now have. daschle outlined this plan in his book just before he was nixed for healthcare czar.

 

a/k/a "Lowering the standard of care."

 

and why not mandatory arbitration? we have people on juries now who don't know what blood actually does or have never heard the word pancreas.

 

I think it was Juror#8 and I that discussed that a while ago: arbitration by a medical panel for judging malpractice, then a jury to decide damages (with punitive damages capped...because let's face it, if you're awarding punitive damages beyond a certain point, the doctor in question should probably have his license revoked anyway.)

[Doc]

And somewhat ambiguous, despite what people would like to believe.

 

The real solution is for people to grow up and realize: not every bad thing that happens is someone else's fault. Sometimes you go to the doctor, he performs all the reasonable tests and does his due diligence, you have a 3-some not involving your wife and die anyway. Life isn't perfect. Deal with it.

[birdog1960]

 

 

a/k/a "Lowering the standard of care."

 

 

 

aka evidence based medicine. more is often not better despite that almost universal belief (another reason to avoid jury trials). countries who spend less and do less have better outcomes than the us. tests can do harm. yet "failure to diagnose" is one of the most common malpractice complaints. there is a balance between risk (cost) and reward and the us system is a long ways from it.

Edited June 14, 2012 by birdog1960

[dayman]

LOL Doc. Funny.

 

At it's core my overall opinion boils down to this: We can and should continue to talk about every idea there is, and look for ways to tweek the system and improve it carefully. It's never going to be perfect and just like other areas of the law it may well always seem like there are more cases than we would like and there will always be some bad outcomes in favor of both sides. But the traditional negligence formula is not so broken as some interests will have you think. Not every plaintiff wins. Most awards are within the realm of justice. Cases get thrown out. And yes...insurance costs money. Arbitrarily capping damages, overly restricting our access to the courts, vilifying tort plaintiffs and throwing our basic negligence law to the wolves isn't the way to go IMO. Tread carefully, err on the side of caution, don't believe every talking point you hear and protect your own rights...if you aren't willing to do so I promise you the Chamber of Commerce isn't going to do it for you. Keeping costs down is a noble effort but not at the expense of your rights...certainly not when it doesn't appear to pass itself on the customer anyway in many places where unjust caps have been implemented. Reasonable and careful reform that puts individual rights first is the only way to go here.

Edited June 14, 2012 by TheNewBills

[birdog1960]

LOL Doc. Funny.

 

At it's core my overall opinion boils down to this: We can and should continue to talk about every idea there is, and look for ways to tweek the system and improve it carefully. It's never going to be perfect and just like other areas of the law it may well always seem like there are more cases than we would like and there will always be some bad outcomes in favor of both sides. But the traditional negligence formula is not so broken as some interests will have you think. Not every plaintiff wins. Most awards are within the realm of justice. Cases get thrown out. And yes...insurance costs money. Arbitrarily capping damages, overly restricting our access to the courts, vilifying tort plaintiffs and throwing our basic negligence law to the wolves isn't the way to go IMO. Tread carefully, err on the side of caution, don't believe every talking point you hear and protect your own rights...if you aren't willing to do so I promise you the Chamber of Commerce isn't going to do it for you.

i've been involved in 2 cases - both thrown out before ever going to court (one compaint plastered on the front page of the local paper and they never published the fact that it was later thrown out). they do harm. they are not in any way benign. an arbitration board would never have let either case begin. who's protecting me from that happening a few more times before i retire?

[dayman]

i've been involved in 2 cases - both thrown out before ever going to court (one compaint plastered on the front page of the local paper and they never published the fact that it was later thrown out). they do harm. they are not in any way benign. an arbitration board would never have let either case begin. who's protecting me from that happening a few more times before i retire?

 

 

The same system. There are a variety of legal remedies you may be able to seek depending on the state you live in and the facts of the either particular case. And if the case was thrown out the other side lost money it was not in their best interest to simply throw spaghetti at the wall. If the facts don't give rise to any COA that can provide any relief and the news paper coverage hurt you, then that's life. It's not a perfect world I'm not saying it is. But the threat of litigation is a necessary evil in our society...and the press is the press.