Educate Selwynn: "Tort reform" question

[Selwynn]

Ok, a co-worker and I were talking about lawsuits, specifically medical malpractice lawsuits, which is where I think Bush's "frivolous lawsuits" talking point comes from, right?

Ok, now obviously I'm pretty skeptical that we even have a problem with "frivolous" lawsuits really, I mean is this a high-percentage issue? I know we could just say no but I don't have any hard data, so I'll just say "I don't know."

So here's my thing: why couldn't civil suits, like malpractice suits or negligence suits go before a civil grand jury? That doesn't happen now right? Or does it?

I was thinking, if there was a grand jury that basically had to hear and evaluate the evidence to determine of there was just grounds for a trial ?

Please - I'm more interested in specific comments about this idea, not a bullet points memo on why "tort reform" is bad - I'm just saying, hypothetically, would this be a decent idea, or does this already happen.

Selwynn - who is utterly, painfully ignorant on this issue. :)

[JimmyJazz]

1. A lot of civil cases go before a mediator or an arbitrator

before going to a jury. Insurance companies make billions of dollars in profits every year. I would daresay that they are the cause of the problem more than "frivolous lawsuits." "Frivolous lawsuits" make up a tiny percentage of all the cases that come before the courts and are not the reason insurance premiums are skyrocketing.

I didn't catch all of what the shrub said about asbestos litigation, but those cases are not frivolous. People who were exposed to asbestos years after the manufacturers knew it to be dangerous have a right to be compensated for their injuries.

[johncoby2]

2. I like the idea, although.....

No one makes money from frivolous suits! I mean really would an attorney take a case, spend a load of money pursuing it with little chance of getting anything, and with the possibility of being sanctioned by the courts?

Also juries do NOT give money for frivilous suits. It is a myth.

Now, I like the idea of a grand jury. See if there is enough evidence to continue pursuing it.

Here in Texas, tort reform has scared the attorneys off. We have a very hard time finding attorneys to take cases especially for homebuilder cases.

[K-W]

3. You shouldnt accept the right wing's framing of the problem with tort law.

Is there even a problem?

[Selwynn]

4. Pretty sure I said that.

? Didn't I say I don't know a few times up there? :)

[K-W]

7. I was responding to your proposed solution.

Proposing a solution assumes the problem, no?

[Jacobin]

5. That kind of happens right now in some states

In Louisiana BEFORE a malpractice suit is filed against a doctor, it has to go to a Medical Review Panel, which gives its opinion about whether there is malpractice or not. Doesn't stop a later lawsuit, but is sort of guidance on how the case is going.

[GarySeven]

6. There's no such thing as a FRIVOLOUS medical malpractice claim!!!

Judges regularly declare lawsuits "frivolous" if they have no legal basis - in fact, lawyers who file them (or prisoners filing pro se) are regularly sanctioned by courts.

"Frivolous" is actually a term of art used by defendants to challenge a lawsuit, not in a court of law but in a court of public opinion. By any real measure ANY lawsuit that survives the initial challenges to evidence and cause of action is NOT frivolous; the process has determined that whatever the plaintiff claims to have happened deserves at least a hearing before a jury. The process itself weeds out "frivolous" matters, or, alternately, shows the defense that the evidence is so strong they will certainly face a large judgment and should settle with the plaintiff.

I notice that in all the Bush Administration's claims about "frivolous medical malpractice cases" they never cite ONE example of such a case. In point of fact there CAN NEVER BE a "frivolous" malpractice claim because those actions are among the most complex to try in court. NO lawyer would ever take a malpractice case unless he were CERTAIN he had more than a 50 percent chance of winning. To prove med mal, you must show that the health care provider did not follow what the medical establishment itself has determined to be a proper course of care. To do that, a lawyer must get other doctors to tell a jury what that proper course of care is and exactly where the defendant failed.

BTW, the lawyer DOESN'T GET PAID unless he wins; his take on the judgment (up to 40 percent) may seem high, but it actually pays for all the work and research a lawyer's team has done to prepare for a case - and sometimes that can take up to a decade. Could you work on something for 10 years without any payment? Lawyers must take cases they are relatively certain will have a payout - but now the Bushies want to limit those payouts, removing a lawyer's incentive to take a case. That may seem fine to some people -- until they take medication that a company KNEW would create heart trouble, or have some other encounter with a company that puts profits over consumer service.

It does cost thousands of dollars to litigate any lawsuit, but that is often because the defense refuses to admit a mistake or liability. Jurors punish such defendants by ordering them to pay high punitives. But in almost all instances the damages awards issued by the jury - including the VERY worthwhile "McDonald's Coffee Case" - is reduced by the trial court.

As usual, the Bush Administration is trying to hoodwink people into supporting something that will actually harm them. The civil jury system exists not only to protect consumers, but also to protect capitalism itself by giving consumers a weapon to punish those businesses that put out dangerous products or put people at risk. The voters THINK they are doing something to strengthen the economy; what they are really doing is making it financially impossible for lawyers to take on the cases that will protect them as consumers.

[w4rma]

8. Insurance companies are making HUGE profits. Therefore, they can easily

afford to lower rates. The problem is they want even bigger profits and that's what tort reform is all about. Tort reform isn't about lowering prices, its about bigger profits.

The insurance companies are price gouging their customers, right now.

Pointing at jury awarded lawsuits as the reason for their high prices, serves two purposes. An excuse for the doctors who really don't have the time to research this information and if they are successful in tricking folks into letting them have what they want, they'll get even bigger profits, for a while, until people catch on and gain enough power to overturn their scam again.