Does anyone have a problem with this statement by Dean re HMO lawsuits?

[AP]

Healthplan: Do you think consumers should be able to sue their HMO?

Dean: No, I don't think that is helpful. I think lawsuits in general aren't helpful. I favor arbitration. But we do need external review. In Vermont, we have a panel that works with the state government where someone who feels they are not getting proper care from their HMO can appeal. Ultimately, an ombudsman is called in and (where appropriate) the banking and insurance commissioner enforces the HMO to grant the care. I think that is fine. I think that is good. I think that system is much better than lawsuits. The reason is that system takes care of a problem before it gets out of hand. In order to file a lawsuit you have to show damages. Well what's the point of waiting until the patient is damaged so that you can file a lawsuit? I prefer arbitration up front before damage is caused, rather than lawsuits afterward. It certainly has been used in our state and it seems to be used successfully.

http://www.medscape.com/viewarticle/405541

And he's insulted about being compared to Gingrich?

I just read this for the first time, and I find it stunning. I'm not surprised. It seems to fit a pattern. However, it is still quite stunning. What do the Dean fans think about this? How do you address it? I know some will say they agree. However, if I posted this at DU two years ago, and Dean's name weren't attached, and I asked if DU'ers agreed with this, I bet you I would have gotten 99 "no" responses and 3 "yes" responses.

[joeybee12]

1. Can't sign in, so I can't see how old the comment is

All I can say is I voted for Gore, and ignored his homphobic comments that he made in the past. People and their positions can evolve, but I know that's not what you want to hear--you just want to start a fight.

[AP]

3. I didn't like Gore all that much, but didn't have a choice after primary.

Now I have a choice, and I'm not very impressed with anyone who'd ever say this. This isn't a question about evolving liberal attitudes. This is about whether you can do fucking math, and have any concept of the logic of doing business and making profits.

This is just total BS. Thomas Jefferson would have been able to figure this one out. So don't pretend that if Dean thought this way pre 2002, then it was just that there wasn't enough data out there.

[DemDogs]

102. It is from 2000

Follow the links and you can see it is from late 2000. No excuse for not knowing about this issue. He has to live with this anti-consumer position. This is to the right of the DLC he loves to bash.

[gttim]

2. Early arbitration is best.

I read Dean's comment that he wants arbitration when treatment is initially refused by HMOs. If your kid is diagnosed, and your HMO refuses treatment, would you rather wait till he dies and sue, or have some sort of arbitration you can access while your kid is still alive to get the needed treatment? Seems like a common sense no brainer to me.

[AP]

4. Arbirtation panels don't have to obey rules of evidence, and are often...

...made up of people sympathetic to the HMOs.

Arbitraiton is BS. And any judgements by arbitration are usually unappealable, and, if they're good, they're not binding on anyone else, even if the exact same issue came up again. It would always be in the HMO's interest to continue to take their chances, even when they know they would lose if precedents bound them.

[dsc]

5. neither are lawsuits

Nice spin there. Lawsuits are no more binding on future decisions than arbitration is.

[AP]

6. Holy shit. Of course they're binding.

If they're appealed, they're binding on all lower courts. if they aren't, at least they're persuasive authority.

Arbitration is NOTHING. It's not authority, it's not appealable, it's not binding. In fact, if an HMO loses at arbitration, there is no disincentive at all to keep contesting the same exact fact scenario every time it comes up. Every time is a roll of the dice, and there are no bad consequences for continuing to challenge the complainant.

This is beyond debate. Arbitration is good for business, and it's bad for social justice.

[dsc]

7. and lawsuits work the same way

It isn't like the Court puts monitors into the HMO office to make sure thay abide by previous rulings. They are no more binding than arbitration. If the HMO breaks the law again, they have to be sued again. Just like if they do the thing they lost arbitration on again they have to be arbitrated on again. It is no different at all and you are spinning madly to claim they are.

[AP]

8. Read Four Trials.

When a business practice is subject to a binding court opinion, a bad holding for an HMO will make the HMO change their business practice. A bad holding in an arbitration hearing makes you do a calculation that might lead you to conclude that you can get away with in the future.

If you don't have a binding opininion in arbitration, every time you're challenged on that same exact issue, you have a chance of winning. Not so in a court of law.

[AP]

9. And no binding precedents isn't the ONLY reason arbitration is BS.

dsc, I invite you to make an argument that arbitration is better than a court of law based on any other logic besides, it's saves the HMOs money, and gives them a competitive advantage over their own customers.

The ONLY time arbitration makes any sense is when you have two parties which have exactly the same bargaining power. Two equal parties might prefer arbitration to save costs. To parties who aren't equal should never chose arbitration if they're able to make the choice.

[dsc]

11. that is just plain false

Juries, and juries alone, decide fact in court. A jury can, and often does, ignore the law when doing so. To sight one very famous example. Ford made a car called the Pinto. A few years of the Pinto had a badly designed gas tank which exploded when involved in head on collisions. Ford extimated the cost of redesigning the car versus the cost of the lawsuits and didn't redisign. They then won the lawsuits that followed. The reason being that a jury consultant helped them pick a favorable jury (women pick up truck owners) who wound up blaming the drivers and not the cars.

[curse10]

13. Um. Just read those cases in school

Ford didn't win. They ended up losing a gigantic lawsuit-- something like 200 million dollars.

[AP]

15. hear that dsc? "that's just plain false"

You should apply your own standards to yourself and tell us how you don't know what you're talking about at all, and that you're probably intentionally lying, and that everythin you say heretofor has been totally discredited.

[dsc]

19. Sorry I was wrong

I mixed up the homicide case and the initial lawsuit. Of course, utterly unlike you, I admitted my mistake.

[AP]

22. That's a pretty big mistake.

By the way, are you advocating arbitration for criminal cases too?

And if you're saying I don't admit my mistakes, I say where?

I admit my mistakes. I just don't think it's a mistake to call a 50:50 vote in the Senate "divided". You do. That is a disagreement over a characterization of a fact, and not the fact itself.

[dsc]

23. I apologized

I was wrong. I don't know what else to say. But on the 50/50 Senate not 50/50 vote you claimed the 50/50 Senate necessitated Republican committee votes to get the bill out of Committee. That is what the problem with your statement was. And you still don't admit that.

[AP]

26. A tangent from this discussion about Dean's covert conservativism,

but I'll answer it. I said that it was divided vote, and therefore required COMPROMISE, and therefor was far from the most liberal tax bill possible, but that dean somehow thinks that the product of compromise is the ideal.

He doesn't set his sights any higher than something that was designed to go straight down the middle. Not the most liberal thing, and not the most conservative. Had it been more liberal, more Democrats might have defected.

That was my entire point about that tax bill that is Dean's ideal.

I'm just shocked that lots of Democrats here prefer a guy who doesn't aim very high where it matters, and this HMO thing is another example.

[AP]

14. Juries decide FACT. They can never ingore the law. If they do, you

can appeal the decision.

Because a jury doesn't always find the facts as YOU, dsc, sees them, doesn't me that legal precedent has no value. If you were right, dsc, we wouldn't be waisting our time with courts of appeal andn the suprem court.

I think Ford ended up losing a lot of money on the pinto case and if you want to know the value of precedent, you should look at how Ford is trying so hard to keep cases out fo the courts today.

At trial it was discovered that Ford made a cost-benefit analysis at the engineering stage with the Pinto. That came into evidence and resulted in a very unfavourable judgement which the took into account in the future. They learned that they will be found negligent in similar cases in the future.

[AP]

16. more on juries:

of course, sometimes a jury will find a fact that sinks the whole case, but even in that case, you can make a motion to have decision set aside because it is dramatically erroneous.

In arbitration, you don't have protections like that.

[dsc]

18. Juries ignore law all the time

it is called jury nullification. You might be able to appeal that but it isn't rock solid. I am certainly not saying they should ignore the law, or that ignoring the law is a good thing, but they do do it.

[AP]

20. You seriously prefer arbitration to courts of law?

Juries are usually pretty good at deciding facts. You seriously think arbitration is better than a court of law. At least in a court of law you have choice between a jury or a judge deciding facts as well as law. In arbitration, you don't have that choice at all.

[dsc]

25. For cases like this

where time matters, a fair arbitration system would be preferable. In general I prefer juries. But jury verdicts, especially ones which aren't appealed, don't stop future problems like you were claiming they do.

[AP]

28. Not true. Parallel decisions are...

...either persuasive authority, or binding, (I can't remember.)

I actually think parallel authority might be binding. It's definitely binding in appeals courts unless it's distinguished, and I think it's the same in trial courts.

And again, this isn't the ONLY reason arbitration is bad for parties without equal bargaining strength. You have the rules of evidence, and, say someone refuses to produce evidence, in a court of law you can actually convert that failure into a crimial matter. In arbitration, it's, at most, a breach of the arbitration contract, but I bet most arbitration contracts make sure that it isn't.

[AP]

29. Furthermore, I wonder how often time is the problem in a case like this.

Usually, you don't know if a treatment failed until long after the treatment was completed. I have a hard time imagning a situation where you were currently in treatment and you would resort to any kind of remedy (legal or otherwise). If you don't like your treatment while you're getting it, you should switch doctors (which is more difficult with HMOs right, since they tell you who you can see).

[dsc]

32. You are kidding right?

This type of situation is why people wanted to sue HMOs in the first place. Patient Jones needs a surgery not covered by ACME HMO. Jones isn't made of money. Jones now has no way of getting the surgery. My understanding of the way arbitration is supposed to work is that once the denial takes place one arbitrates. The lawsuit would have to wait until real damages.

[AP]

33. Clearly there should be some expedited process for getting a decision

But to throw away the right to sue in a court of law? I'd be arguing for an expedited judicial proceding, or more money for courts and more judges before I'd argue for taking these claims out of the courts.

Furthermore, this is why HMOs are bad. It's like saying, yes they're crappy, so lets fix them by making them more crappy. What's the point of an expedited procedure if it's weighed so heavily against your favour?

This is one of those situation where you need to throw out the baby with the bathwater, or, at least, through regulation, separeate out the conflict in interest that is inherent in an HMO denying care.

[dsc]

37. arbitration can work

and I think makes some degree of sense in cases where a decision is needed quickly. There is only so much expedited dockets can do. I admit that arbitration is usually not a very good system. But I fail to see why that must always be the case. Since I couldn't get into your sight I have no earthly idea what Dean was talking about here. I think a better system would be a dual one. Quick access to arbitration with appeal to the courts.

[AP]

38. An expedited procedrue makes sense. Trading consitutional rights for

arbitration does not make sense.

This quote was a cut and paste from a sandnsea post. There were two other questions and answers, which you can see here:

http://www.democraticunderground.com/discuss/duboard.php?az=show_topic&forum=104&topic_id=775104#775444

IM sandnsea if you want more details.

[AP]

24. juries are generall not put in a postition where they can ignore the law.

They're usually given some kind of jury instruction which they're told to find facts, and the facts they find are then fit into the law.

If they want to come to a different conclusion than the one the law dictates, they have to find facts that were the opposite of what probably happened. The judge can always direct a jury to find a fact if no contradictory evidence was presented, or if a witness wasn't impeached, or the contradictory evidence was presented by a witness who impeaches himself or herself (this is in Four Trials, by the way).

Anyway, this all a dsc-style tangent, meant to deflect attention from the fact that almost no REAL democrat would say what Dean says in this quote.

[mbali]

42. Jury nullification

applies only in criminal cases. In civil cases, a judge can second- guess a jury if he or she believes the jury has disregarded the law.

[dsc]

43. Yes and no

If a jury refuses to rule for a plaintif I don't think a judge can complell them to rule for a plaintif. There are appeals but those add more cost and sucess is uncertain. Juries are given very wide latitude and can often couch nullification as a factual dispute. I am certainly not claiming this happens all the time but it does happen.

[mbali]

44. No - just yes . . .

If a jury refuses to rule for a plaintif I don't think a judge can complell them to rule for a plaintif.

A judge can indeed do just that. It's called a Judgment Notwithstanding the Verdict or JNOV. If the judge finds that the jury's verdict - for either party - goes against the clear weight of the evidence, he or she can set aside the verdict and order that judgment be entered in favor of the other party.

[dsc]

54. Sorry you are right

I had thought plaintiffs could only get summary judgments or directed verdicts.

[lastliberalintexas]

61. Nope

A jury can ignore the law in civil cases as well. Not that it is always bad that they do so, since they tend to do so in favor of plaintiffs!

In both civil and crimial cases, the judge has the right to set aside the verdict if s/he feels it is against the great weight of the evidence and/or law. Of course, in the criminal context, the judge can only do so in favor of the criminal defendant rather than in favor of the state!

[AP]

64. Juries are never given the option of ignoring "law". The can decide that

facts weren't proven. But it's not their choice to decide the law. They're told the law, and told the facts they need to find to reach a certain decision. They plug the facts into the set framework of the the law.

[lastliberalintexas]

69. They are told the law through

what are known as Jury Instructions or the Charge of the Court. But if you think that juries always abide by the instructions they are given, then I have a bridge to sell you in New York.

What you describe is the ideal of our system, but that is not how it always works. Juries very often ignore the instructions on the law, and they instead impute their own life experiences into the case at bar. That is why the voir dire process is so very important to trial lawyers- to try to see who will ignore the law in your favor!

[lastliberalintexas]

60. Wrong

Ever heard of jury nullification, my friend?

And even in cases where the verdict is not actually a nullity, juries very often ignore the law. Don't get me wrong- that's typically a good thing for plaintiffs, so I am not complaining. But juries often do allow emotion to guide them rather than the logic of the law.

[DemDogs]

101. Didn't win 'em all

Ford lost big on the Pinto cases.
Juries can't be fooled as often as Republicans (and Dean) would like you to think.

[dsc]

108. Ford did win the criminal case though

and it should have been a slam dunk. Juries can be fooled. Though Dean's problem with the suing, as he said and you obviously chose not to read, is the fact the damage has to be done before you can sue.

[AP]

109. Criminal liability and product liability are two completely different

matters and have dramatically different standards. I'd like to see the elements of the crime ford was charged with and who was actually charged.

I suspect that the prosecutors probably didn't put the best case foreward, or might have picked defendants they knew a jury wouldn't convict. Ford spends a lot of time cultivating good relations with the government in Michigan, and I doubt the government was going to bite the hand the feeds.

And, in any event, nobody is arguing that criminal charges should be dealt with in arbitration so the entire discussion of the criminal case isn't really relevant to a comparison of a med negligence or product liability claim in a court of law vs arbitration of those sorts of claims.

[genius]

10. Clearly Dean is against the people and for the H.M.O.s

He's clearly one of the bad guys.

[LuminousX]

41. Oh, it is crystal clear!

[NewYorkerfromMass]

52. Really, it is.

I hope you weren't being sarcastic. Dean is more Republican than Democrat in these matters. This reminds me of 11 years ago Dan Quayle's tort reform crusade.

[Andromeda]

85. You have got to be kidding me...

but you're not, and that's pathetic.

[DemDogs]

103. He's one of the bad guys on this issue

Live with it. You can ignore it all you want -- but if you elect one of the other Democrats you will get a real Patients Bill of Rights and if you elect Dean, you will get arbitration.
That's just the fact.

[redqueen]

12. Stunning and yet somehow also not surprising.

While seemingly an oxymoronic statement... I know just what you mean.

Blech.

[Padraig18]

17. Dean is absolutey right.

Oddly enough, I just won an appeal to the Commissioner of Insurance over the failure of my HMO to authorize some surgery I need (according to the 4 doctors who have examined me). If I had had to wait to sue, that would mean I would have suffered a permanent impairment to my arm and hand.

Put yourself inh my shoes: which one would work better for you?

[Freddie Stubbs]

27. But what about the trial lawyers?

This would take money out of the pockets of a group of people that has given lots of money to the Democratic party. I can't believe that you would rather be healthy than have the opportunity gain a large cash settlement for yourself.

[AP]

30. If it takes 30% out of the pocket of a trial lawyer, it's taking 70% out

of the pocket of an injured HMO customer.

Anyway, you'd be crazy not to consult a lawyer before you went to arbitration, so you'd still have to pay the lawyer. Only now, it would be pretty safe bet that you'd never get enough money to pay the lawyer, unless it comes out of your own pocket, rather than the negligent HMO's pocketg.

[Freddie Stubbs]

34. I'd rather have to pay for the lawyer for arbitration

than die or suffer medical problems. Wouldn't you?

[AP]

35. What is incompatible about not giving up your constitutional rights and

getting a quick decision from your health care provider?

Have your legislature pass laws which protect your interests, which require quick decisisions or which trigger big damages.

Don't give up your right to access the courts.

Everybody talks about quick decisions which get you treatment. What if you're denied treatment after arbitration? You're screwed. You have nowhere to go. When you die, your estate wont have a cause of action. There's no disincentive for the HMO.

You need to keep your right to sue in a court of a law, and have the legislature protect your rights by not allowing the situation to get fucked up in the first place.

[AP]

36. To summarize: that's a totally false dichotomy.

there is no reason you can't have both a quick decisison AND your constitutional rights to pursue an action in a court of law.

[AP]

31. Having to wait is the inherent problem with the HMO.

You should be able to go to the doctor of your choice to get the treatment you need, and have your insurance coverage pay for it.

HMOs are gate keepers to service. They have interests that conflict with sound health care. They do what's cheap and easy and hope that people without the wherewithal to complain don't complain. If a few do, and they lose, so be it. Their profit margins are still healthy.

If you suffer permanent damage to your arm and hand because of shitty service by your HMO you should be able to go to a court of law and sue them for that TOO. What if you lost your appeal to the commissioner of insurance? Would your claim have been dead in the water?

[sandnsea]

45. You shouldn't have been denied

That's the problem. A doctor treats patients. Obviously if 4 doctors said you needed surgery, the first one who saw you should have had the authority to schedule surgery. Are you too young to know what it's like to go to the doctor and just get treated? Malpractice suits used to be the thing that got you that surgery, no matter what. If I were you, that's the system I would choose. The one where I get care because the doctor prescribes it because it's good medicine. Not a system where someone looking through a manual approves your medical care.

[AP]

46. Excellent post. Who can deny the logic of this?

This is exactly the point I was trying to make.

You have four doctors saying you need a surgery and you have to appeal to the HMO to get treatment, and you think the fucked up part is that you DON'T HAVE AN EXPEDITED ARBITRATION PROCEDURE?

Hello?

What planet am I on?

[sandnsea]

47. I REALLY want my country back

These 80's babies don't even know what that means. Aaaggghhh!

Sorry if you're one of them. :-)

[JohnKleeb]

48. I am :)

[sandnsea]

49. Your parents raised you right

:-)

Not that others had bad parents or anything, JohnKleeb's are obviously exceptional people to have raised such an exceptional young man!

[redqueen]

56. awww sandnsea!

What a horrible thought!

How accurate, and how depressing!

Oh how low we've sunk, and how quickly. :(

[sandnsea]

21. Give up more rights

Arbitration is fine, but it's no substitute for being able to hold any health corporation accountable in court. The only thing corporations understand, in the end, is the pain of losing money.

And for those who had successful arbitration, there's people who didn't. Like in Texas.

http://www.texasobserver.org/showArticle.asp?ArticleID=362

[Rose Siding]

39. Here's the policy fleshed out-

(The read in that paragraph doesn't represent his broader policy and I can't access the link to see any of the surrounding context)

Medical Malpractice: Supporting Doctors and Their Patients

As a physician, I understand the concerns doctors have with medical malpractice system. Faced with rapidly increasing insurance premiums, doctors are avoiding certain specialties, and many are leaving the medical profession altogether. This isn’t good for patients or for the American health care system generally.

But access to the courts is a fundamental civil right for all Americans, and many patients receive compensation for their injuries through the justice system.

We need a medical malpractice system that works for both doctors and patients. Patients and their families should have recourse to legal remedies if they suffer injuries and are wronged. Doctors shouldn’t be run out of business by soaring premiums or spend countless hours defending frivolous lawsuits.

Fixing the problems with the system requires compromise and thoughtful reform. But perhaps most importantly, it requires a recognition by doctors and by their patients that we need to fix the system in a way that preserves both the medical profession and the rights of patients to seek compensation and justice.

I support state efforts to discourage frivolous lawsuits while still holding the health care system accountable for its mistakes. For example, I believe that many malpractice actions can be resolved through mediation or pre-trial expert panels. Maine has enacted a sensible reform under which malpractice litigants must submit to a non-binding pre-litigation review. The review weeds out frivolous lawsuits without depriving real malpractice victims of the right to be compensated. Other states should weigh such reforms.
During my tenure as Governor, Vermont moved in this direction. I pushed for a law requiring submission of malpractice claims to an arbitration panel before trial. In 2002, I also signed a bill that strengthens the state’s ability to monitor health care delivery. Vermont now has one of the lowest medical malpractice rates in the country. We protect the rights of patients, but our doctors do not face the crisis of rising insurance costs that confront doctors elsewhere.

The federal government has an important role to play. First, the Senate should enact a bill sponsored by Senator Jeffords and others to provide legal protections for patient safety reporting systems. The Institute of Medicine found that thousands of patients die each year due to medical errors, many of which reflect system-wide problems instead of individual negligence. To reduce errors, we need to move from a culture of blame to a culture of safety in which the health care system learns from its mistakes. Reporting systems have had great success in the aviation industry. They can improve health care outcomes as well. The House passed such a bill 418 to 6, and the Senate Health Committee recently approved the Jeffords bill. The full Senate should act promptly.

Second, I support federal demonstration programs to identify promising models for improving state medical malpractice systems. For example, the federal government might support experimentation with alternative compensation systems, enterprise liability systems or pre-trial expert panel review systems such as the one enacted in Maine.

Any reforms in this area should meet two tests. They should screen out frivolous lawsuits, and they should protect access to the courts for valid claims so that victims of medical negligence receive fair compensation.

I oppose the Republican medical malpractice bill now before the U.S. Senate. It represents unwarranted and probably unconstitutional federal interference with state tort laws. It is essentially being used for political purposes and it will never be enacted. I favor real solutions at the state level and federal support and guidance for states to implement those solutions.

http://www.deanforamerica.com/site/PageServer?pagename=policy_policy_health_medicalmalpractice

[AP]

40. Edwards says that you need sanctions against lawyers

who file frivolous law suits, but you should not deny rights to the people who have been injured.

I presume that forcing people to jump through procedural hoops is the sort of thing that Edwards would think is undue burden on the injured individual.

[Lady President]

53. Excellent point

Edwards is absolutely correct that things like sanctions, fines, or suspensions should be levied against attorneys who file frivolous lawsuits. No one should expect a layperson to always know when the suit they want to file is groundless. The attorney should be expected to follow the proper course of action. This would be the most responsible way to clean the dockets.

Edwards is my #2 choice for President, but I can't help thinking that some of the other candidates would make fine Presidents, however we NEED Edwards as AG.

[lastliberalintexas]

62. Exactly what is frivolous?

For your information, sanctions are *already* available for frivolous lawsuits- and yes, sanctions against us attorneys. And so you know, there are also provisions for the prevailing party to recover its attys' fees and court costs ALREADY in place!

And a plaintiffs' attorney is not going to file a suit they don't think they can win, since they often take the case on a contingency fee basis. If they don't win and recover anything, then they don't get paid. Pretty good incentives already in place for the atty to be discriminating in which cases s/he will file.


The problem arises when you try to define the term frivolous. The best definition I can give you for what people think of as a frivolous suit is as follows:

Any suit filed against them is frivolous.
Any suit they file is merit worthy.

That's about all I've been able to come up with in my practice, anyway. :shrug:

I am continually amazed at the (hopefully unconscious) antipathy directed at attorneys- esp here on DU!

[AP]

66. Edwards is talking about a three-strikes and you lose your license kind

of sanction. As far as I know, no states have that kind of sanction.

Lawyers will file nuisance suits they know they can't win because they know the defendant will at least pay a little less than the cost of defending the suit to make it go away.

[lastliberalintexas]

70. Great

way to make me afraid/terrified to file suits on behalf of my clients. If I am going to be subject to losing my license for some vague claim of filing a "frivolous" lawsuit, I would be forced to start doing defense work. The threat of a monetary sanction is enough to keep the vast majority of attys in line. But glad to see that you are buying into repub spin on how we eeeevil trial lawyers operate.

[AP]

76. So you think the solution is arbitration?

You think the solution is taking rights away from the injured individuals rather than the lawyers?

[sandnsea]

78. Solution?

For those other attorneys? I think that's what Edwards is aimed towards and I think he'd be the last person to suggest something that would hurt attorneys.

I don't think AP is buying into the evil attorney spin. In fact, I think the people who are willing to drop malpractice suits altogether are buying into the evil attorney spin.

I've worked for attorneys and doctors. Attorneys are so much more compassionate than doctors ever dreamed of being. Funny how things get knocked upside down in this world.

[lastliberalintexas]

81. I'm not sure

I admit that I am not sure what should be done about the very small number of "frivolous" lawsuits filed in this country. But again, the most important part of this debate is to have a clear, concise and definite definition of what constitutes a frivolous lawsuit. Without that, this debate is meaningless.

I wasn't being sarcastic when I said that most people just think of any suit filed against then as the frivolous actions. Or people just throw the term around without really having any idea of what it actually means.

I am an attorney myself, and I can't give you a working definition of a frivolous/groundless lawsuit! What looks frivolous to some, may result in a multi-nillion dollar jury verdict. It's just far too subjective an issue over which to have your license revoked.

[sandnsea]

82. The judge decides, I think

I'm going on memory here, and believe me, that's nothing to trust in my case! But it seems he's proposing that when the judge tosses it as frivolous is when it strikes against the attorney. Is that fair? I'm not sure, considering some judges. But if it were 3 different judges??

Truth in reporting would be helpful too. I've read on that McDonald's coffee case and I remember how hot McDonald's coffee used to be. I used to get pretty upset about it myself. And I think people don't know the woman got third degree burns. It really is a dangerous product in a moving vehicle, without any warning, and I think she was right. Accurate reporting would help an awful lot.

[lastliberalintexas]

88. Not really

When a judge dismisses a case or grants a party a summary judgment, s/he has not made a determination that the case is "frivolous". The judge has simply made a determination that the party against whom dismissal/SJ is granted can not legally make their claim. That does not mean that the claim is groundless, only that the party has not produced sufficient evidence to *prove* a legally cognizable claim. Unless a specific motion (in Texas a rule 13 motion) has been made and ruled on by the court, there has not been a determination that the case is indeed frivolous.

And that's why I say this is a tough issue. Not winning or losing a case does not equal groundless/frivolous. I'm really not sure what the solution is. :shrug:

As far as the public's perception of litigation in this country, yes, the media has donea great deal of damage to our cause. The McDonald's coffee case is a perfect example. McDonald's had received more than 1000 complaints concerning the temperature at which they kept their coffee and the injuries which resulted from same. Also, McDonald's kept their coffee some 10-15 degrees hotter than the industry standard. The lady in question did sustain severe 3d degree burns- and they were to her genitalia. Also, the trial judge who presided over the case was a fairly conservative, Reagan appointee. He allowed the verdict to stand based on the evidence introduced at trial, though he did reduce the damages to around $600,000.00. However, those facts and that reduction were never (or at best rarely) reported in the US media. I think I remember Newsweek actually doing a very good article on that case and some others that had become controversial.

Also, and this isn't popular to say, but lawyers don't help the cause sometimes. There are some people in my profession who are very hard to defend. Of course this is the case for any profession, but those are the ones whomake it hard to convince people that tort reform is evil. For some people who don't think about the actual issues involved, it is easy to say "Well if tort reform means ____ ______ makes less money, then it must be good." Some lawyers have become very, very wealthy from their practice, and are simply seen by the public as the robber barons of today. While most lawyers make a good living, the uber wealthy among us are the exception. But that's not the public's perceptin, and that is definitely something we must change.

Sorry for the book in response! This is just obviously an issue near and dear to my heart. The tort reform people use anti-lawyer rhetoric very effectively, and we must find a way to counter it or else we will all lose our rights. (course we already have in Texas!)

[AP]

90. How 'bout arbitration for frivolous lawyering, and courts for med neg?

?

[lastliberalintexas]

92. We basically have that already

since lawyers are subject to the Grievance Panel of their respective state bar associations. Thankfully I have never been through such a procedure, so I don't know if a state bar's decision is appealable to the courts or not.

Let me be clear- I am not against certain monitoring or constraints being placed on my profession. But just as with other regulations or laws meant to monitor our behavior, the regs must be clear as to exactly what is prohibited.

[sandnsea]

94. I must be confused

I thought judges could throw cases out as being frivolous, separate from making the case. I know it isn't done, but I thought it could be done. It puts an awful lot of power in the hands of a judge too, though. I don't know. Maybe it is just best to fight the whole concept of the evil trial lawyer. And have the HMO arbitration so people can try to get medical care before they die. And fight to get the stupid HMO's gone altogether.

[AP]

96. You make a motion for sumary judgment which the judge

decides. And then, I presume, different states have different rules for sanctioning lawyers for frivolous claims. Since bar associations are self-policing, they don't make it easy to take away a lawyer's license. Basically, Edwards is saying that we should look to punish innocent individuals for lawyers who tell them they have good claims when they don't. Let's look to bar associations and the courts and the law to police lawyers more aggressively than they do (and some jurisdiction might police lawyers aggressively already).

[lastliberalintexas]

97. No, you're not confused

Judges usually *can* make that determination, but it is so very rarely done. And that puts far too much potential power in the hands of judges- who in Texas are elected, political animals themselves. (but the Texas judicial system is an entire thread unto itself!)

It is also a VERY high burden to meet in order to find a case to be groundless. And it should be, b/c otherwise it would just be used as a hammer against plaintiffs and/or their attys. So the actual, legal definition of a frivolous/groundless suit or claim is rarely- if ever- met, unlike the concept of frivolous in the general public's mind!

But I think you're right- it's better to simply fight the evil trial lawyer image and outlaw HMOs! That's a win/win for our side!


And on edit- I think this also goes back to poor reporting. Many times a reporter will glibly say that a judge threw out a suit b/c it was frivolous, when what actually happened was a dismissal or summary judgment based on some other legal issue.

[diamondsoul]

106. The McDonald's coffee victim

required surgery for her wounds. It was a serious case. You're absolutely right about truth in reporting. When I initially heard about the case I couldn't help but laugh because it sounded absurd. When I finally learned about the injuries that poor woman sustained, I shuddered in horror and got very angry. Not only did she suffer burns serious enough to require hospitalization and surgery but afterwards, ridicule for seeking her rightful damages!

[AP]

107. Not only that, but McDonalds got dozens of complaints about being scalded

and they ignored them because of profit margins.

They thought they were avoiding food poisoning claims and that they could change the coffee less often if they turned the heat up, even though they knew the risk was that people were getting second and third degree burns.

It was the exact same calculus Ford did with the Pintos. It was wrong with Ford and it was wrong with McDonalds.

This is also a theme in the fourth chapter in Edwards's book, Four Trials.

[Lady President]

99. Lecturing the wrong person

Thanks for free lecture on professional ethics, but I'm a lawyer too.

You have to be kidding when you say lawyers won't take a frivolous claim. They also can make a lot of money representing clients that just want to sue someone. As one of my professors said in the first week of law school, "You'll never have a better client, than a deformed baby." Clearly, he was going for shock value, but he was right. Nuisance suits are settled all the time because it's cheaper than going to court and defendants don't want to risk a jury if the plaintiff is too sympathetic.

Anyway, in this situation my antipathy directed at attorneys was conscious.

[loyalsister]

50. Thanks

I have a legislator friend who has taken this very position for years. She has gotten support from doctors while she has been one of the strongest advocates for health care in the legislature. THIS is how Dean gets his health care plan passed. Doctors get behind it because they have a friend in the WH. Especially because he includes making sure they get paid adequately under medicaide as part of the plan. It's all about lining up allies, and he knows what he's doing.
I totally understand where he's coming from, because I have seen doctors who hoped to have their own practices and answer their own phones have to move into these massive corporate practices. Many of them truly hate it. And, they don't believe the Democrats are on their side. We've come to a point where doctors and lawyers are at political crosshairs. Gep and Edwards want the support of their colleagues, Dean wants the support of his. I want health care. The doctors are going to get it done faster than the lawyers.

[AP]

51. HMOs that you can't sue in a court of law isn't health care.

Did you read sandnsea's post. When four doctors say that you need a surgery and you have to appeal through some internal process that doesn't obey the rules of evidence and you have to waive your right to sue in a court of law, and you have no appeal if you're denied, you do not have a system which promotes good health for Americans.

By the way, if you check out Four Trials by Edwards, you see how the courts actually encourage people to change their behavior to provide better health care. Read Ch 1, if you don't read anything else.

[sandnsea]

58. Doctors are businessmen

That doctors are only concerned about their patients is the first myth that needs to be exploded. They are businessmen and want to be paid and want to operate their business at the lowest cost and highest prices, just like every other businessman. If doctors have to choose between Medicaid reimbursement and policies that will keep their taxes, insurance and other costs down; they'll go for the costs. That's why they don't think Democrats are on their side. Doctors lean right.

And as to doctors moving into corporate practices, well that's because of managed care, Medicaid and Medicare HMO's. The managed care people are directing how medicine is delivered, not doctors and certainly not lawyers. Those big massive corporations are, with the help of the government moving the health programs that direction. This trend is going to continue and I can't see anything we can do about it. You really want to give these corporations the final decision over your health care with no ability to hold them accountable in a court of law?

[redqueen]

59. Some, or most... but not all.

Just trying to be fair.

[sandnsea]

63. Most..

Doctors themselves have told me that, and in general discussions with doctors they are more concerned with the economic issues than whether people are getting care or not. Listen to them closely, the discussion tends to focus around the money. Not the fact that people are dying in our current health care system.

But it's true, not all. There was a doctor in Montana who treated everybody, sent out one bill, and that was it. That was her philosophy, treat the people and figure out the money later.

[Lady President]

55. Very, very disturbing

I've read through all the posts in this thread and there are still some issues that are bothering me. My focus in law school was alternative dispute resolutions and I am usually in favor of using these processes, however I have some serious concerns.

Who will be paying the arbitrators? How will they be hired? Will there be a list that allows the parties to choose them or will they be automatically assigned?

Lawyers fee are another concern. Many people seem to think an individual can go to an arbitration without counsel. The HMOs will have a team of highly paid attorneys to handle these matters. Depending on the arbitration, costs and attorney fees would not automatically be considered part of damages the way they would at trial. The end result could be that it's more expensive for a patient to use arbitration than go to court. Of course, it would be a savings to the HMOs.

The most difficult paper I ever wrote was on the arbitration system used by Ohio regarding employee relations issues. For the most part the records of an arbitration are sealed and it is next to impossible to determine why a decision was made. This actually slows the system as much as trials do. There is no way to show precedent, so similar fact patterns have to reviewed from square one everytime.

Also, a court can look at future damages. The patient doesn't need to show that they have already been harmed, just that harm will certainly result from a lack of care.

Bottom line, doctors are often the worst at seeing the problems of the health care system. They'll never be without health care options and don't understand the intimidation of the HMOs.

[AP]

57. To reiterate a point I made above, when you have parties

with equal bargaining power, arbitration is great. For example, with construction contracts, it probably makes sense for a builder and sub-contractor to agree to arbitration. But when you have unequal bargaining power, it's a huge mistake, I think.

[rucky]

65. Here's another solution:

I don't agree with Dean's structuring (insurance commission), but arbitration is the best way. Time is of the essence in many of these situations, and attorneys & courts just bog things down. Not to mention Dean's excellent point of proving damages.

So here's another solution:

A screening panel consisting of a chairperson, three volunteer physicians and three volunteer lawyers (counts as pro-bono time for the AMA & Bar). They listen to both sides in an informal yet structured arbitration & make their ruling if the claim is valid or not. If the claim is deemed valid, it is expidited to the courts... if not, it's dead in the water.

This would weed out the frivolous claims on the patient side, as well as give the patients extra bargaining power if the panel rules in their favor for the go-ahead. Usually enough to force a settlement & avoid court altogether.

They've been doing it in New Mexico for malpractice cases for years. It works quite well.

[AP]

67. Why not, your doctor decides what you need in consultation with you.

The problem here with HMOs is that HMOs create and have financial incentives to deny service. That's why these problems occur.

As I said above, the idea that you can only have an expedited procedure if you waive your constitutional rights to access to the courts is a false dichotomy. These are not mutually exclusive choices. You shouldn't have to waive access to the courts just to get expedited proceudre.

But, more importantly, we shouldn't have a health care system in which a panel of doctors have to solve a conflict between a doctor who advises care and an HMO which wants to deny you care.

[sandnsea]

71. What about regular people??

That's one thing missing from this equation. Regular people who do have the ability to look at situations from the human standpoint.

And we're not talking about arbitration to see if a lawsuit should go forward, that's fine. We're talking about getting treatment in the first place.

Padraig up there praises HMO arbitration because he got his treatment. But if 4 doctors agreed to it at the arbitration panel, obviously he should have gotten his treatment to begin with. If a large corporate HMO knew it would be sued for millions if it DIDN'T give treatment, it wouldn't make such stupid decisions in the first place. We KNOW corporations put money before people, we've seen it over and over and over for decades. Why would people give up their right to hold these corporations accountable in the only way they've EVER responded to?

[lastliberalintexas]

68. Ok, several points

As an attorney, I actually believe that a non-binding, expedited arbitration is the best initial route for a patient. Attorneys' fees can be recoverable in arbitration matters just as in court cases, so the attys could still take these cases on a contingency fee basis. No one has argued that the patient must go through the arbitration process without counsel.

Furthermore, the vast majority of arbitration panels actually ARE subject to the rules of evidence and procedure applicable in state or federal courts. It simply depends on the terms of the agreement to arbitrate. This means that a good and fair arbitration agreement would need to be drafted to cover all HMOs so that consumers do not lose their rights in the arbitration process.

Non- binding would mean that the decision of the arbitrator or panel of arbitrators would actually be appealable. In non-binding cases, the claim is usually appealable to the trial court level, though sometimes you proceed directly to the appellate court. IMHO, it is much better to go to the trial court.

Arbitration/mediation are wonderful tools for litigants if used properly. Yes, safeguards need to be in place to protect consumers. But that is also true of our courts today!

Furthermore, not every lawsuit is binding authority. Only if a case actually proceeds to trial, and has a final disposition by the finder of fact (judge or jury) and/or is resolved on appeal, and is PUBLISHED in that state's reporter may it serve as precedential authority. A non-published lawsuit may as well have never existed for precedential purposes. Another problem in arguing that lawsuits are better for setting precedent is that the vast majority of lawsuits are not actually tried, but instead settle before final disposition at the trial or appellate court level. A case which was filed in state or federal district court and later settled means nothing for other litigants.

Finally, Illinois, Vermont, Maine and a handful of other states have very good procedures in place to help prevent a lawsuit from becoming necessary, though it isn't prohibited. An impartial panel (of uninterested persons) will give the patient a faster, better answer than a lawsuit. In a lawsuit, I can not recover medical treatment for the patient- that is assuming s/he is still alive. All that I can recover is money. IF- and that's a big if- an impartial panel of arbitrators in a non-binding decision can actually get the patient care so as to prevent his/her condition from worsening, I say that's the best procedure.

The key is that the arbitration must be appealable to the courts. So long as that is the case, the patient gets the best of both worlds- hopefully treatment, but if not, still retains the right to go to court.

[sandnsea]

72. Exactly

You can get the arbitration without giving up your right to hold massive corporate HMO's accountable for putting money before patient care. Health care, not healthy profits.

[AP]

73. So what's this dichotomy Dean uses, "I don't like lawsuits I like arb."?

What you described isn't arbitration instead of lawsuit. It's a NON-BINDING expedited procedure. That's fine. That makes sense. Why does Dean not only phrase it as if he likes one not the other, but he goes out of his way to say he doesn't like lawsuits?

And what about the failure to admit what we all know? That HMOs suck really bad becuase they have a financial incentive to deny you service (and that the whole reason this issue arrises is becasue the HMO might be telling the doctor to deny service).

[lastliberalintexas]

80. Well

I can't access the link you provided since I am not a webMD member, so I am not sure what it says on this in its entirety. However, in Dean's own policy statement on these issues, he says that patients must still have access to the court system. From what I understand, the system he advocates is basically a non-binding arbitration with a lawsuit not prohibited (even if not preferred), though he may not use the legal jargon in describing same. :shrug:

[AP]

91. Well, there's the problem with Dean. Are we judging gov dean or candidate

dean?

He's usually on both sides of every issue. You have these quotes from the past, and you have the campaign web site which seems to be the yang to his past yings.

[lastliberalintexas]

93. No

The statement that you cited (or the portion I can read anyway) does not actually state whether a suit was then prohibited or not. All that the portion of the article does is quote Dean talking about an appealable "arbitration". Thus, they don't actually appear to be mutually exclusive statements.

[AP]

95. I bet dean wouldn't put this sentiment on his campaign website.

[sandnsea]

98. I aim to help!

Login name is hd2004 and the password is abc123, I found that on the Dean blog when googling up this interview again. I have access from when this site first went live years ago. Hopefully this access will work for you, I didn't try it. In my mind, when you connect the statement below with the wild statements he's made about courts and lawyers and technicalities in general, you've got a guy who is against the court system unless it's sending people to prison.

http://www.medscape.com/viewarticle/405541?RSS

Healthplan: Do you think consumers should be able to sue their HMO?
Dean: No, I don't think that is helpful. I think lawsuits in general aren't helpful. I favor arbitration. But we do need external review. In Vermont, we have a panel that works with the state government where someone who feels they are not getting proper care from their HMO can appeal. Ultimately, an ombudsman is called in and (where appropriate) the banking and insurance commissioner enforces the HMO to grant the care. I think that is fine. I think that is good. I think that system is much better than lawsuits. The reason is that system takes care of a problem before it gets out of hand. In order to file a lawsuit you have to show damages. Well what's the point of waiting until the patient is damaged so that you can file a lawsuit? I prefer arbitration up front before damage is caused, rather than lawsuits afterward. It certainly has been used in our state and it seems to be used successfully.

[ebw]

74. Re: Does anyone have a problem with this statement by Dean re HMO lawsuits

Going arb means loosing a whole bucket of stuff, like punies. Not wise if the parties are asymetric. You have to wonder about people who fail to see this as a straight ahead tort issue, and who also fail to see that the plaintiff's bar funds our party more than the corporate bar does.

Sure, lets de-fund the Ds and sell it as good policy... Wait, the caffine is kicking in -- ah! I can't wait for Trippi to announce that for the Good of the Party, Trial Lawyers will be shot at dawn (or sent down to family and domestic law) and their assets given to the RNC, which the very next Bat will replace many times over anyway.

Uh, its fine in a Rockafeller Republican. How it got over onto our side of the table is sort of funny.

[AP]

75. That was an eye opener. I completely forgot about the real politik angle.

Thanks.

[NewYorkerfromMass]

77. an excellent post

Rockefeller Republican indeed. People talk about Clark as a Trojan Horse, but it's fairly clear who the real threat is.

[lastliberalintexas]

79. I'm sorry?

We should not be focused so much on the patients' rights and ability to actually get the care s/he needs, we should be worried about supposedly de-funding a profession which contributes to our party? Surely you didn't actually mean that.


And arbitration does not necessarily mean that punitive damages are unavailable. The terms of the arbitration are governed by the agreement to arbitrate- ergo, it is necessary to have a fair agreement drafted tobe used by the HMOs.

[sandnsea]

83. In a real politik way

I don't think it can be ignored. What is the real goal of Republicans? It ain't the damn money, look at the way they toss money around. If they can attack one of the main supporters of the Democratic Party, take away a stream of money, and weaken the entire party as a result; they'd damn sure do it. And I think those people absolutely DO think along those lines.

Certainly the care of people is more important, but like I said earlier, attorneys ARE compassionate. You just proved my point.

[ebw]

86. Re: I'm sorry?

Are you? The "I'm sorry" convention looks a little contrived.

Share your thoughts on the role of punies and tobacco litigation, or lead, or hey, why not MBTE, a highly popular beverage additive in New Hampshire and adjacent states. Show how better, or equivalent results would occur if arb'd replaced juried damages.

What Howie is pushing is something Indian Country already has. Indian Health Service. They mean well, mostly, but they don't make mistakes. If you think they do, you're mistaken. Litigation? Ha!

[AP]

87. The trial lawyers interersts tend to align with patients interests.

Which is why a lot of lawyers would get freaked out by an HMO system that takes away the right to sue doctors. That's bad for patients and lawyers.

[Andromeda]

84. Where have you been?

If you find this so "stunning" you must have led a priviledged and insulated life. This is nothing new. At least for the past twenty years or so arbitration has been standard in California for HMO's and some other states I'm sure.

That is only the first step for patients who feel they've been wronged. If the problem can be worked out in arbitration there is no need to file a lawsuit which probably won't be successful anyway. Insurance companies have more resources that the individual so the cost alone for a lawsuit would be prohibitive and most people don't have that kind of money.

Lawsuits can be long, drawn out and expensive. Most people are not prepared to invest that much time and money when they are sick.

It sucks, but most lawyers won't touch medical malpractice here in CA unless it's a slam dunk, then it's usually on a contingency basis. We also have a cap on punitive damages here in CA but that's another issue.

[AP]

89. I know that it exists. I just didn't know "Democratic" pres. candidates...

...were big fans of it.

[DemDogs]

100. Doesn't matter how old it is - Dean is on the Repug side of this

This IS the Republican position. This is position that Bush wanted in the Patients Bill of Rights.
Now the real POR (Kennedy McCain Edwards) was supported by doctors and lawyers and consumer groups for one reason: the HMOs wanted to continue to manipulate the arbitration policy.

And let's be clear: the rationale for arbitration as being quicker is also the Republican response and it is nonsense. The Patients Bill of Rights dealt with that issue.

Howard Dean: the more you know, the less you like him.

[AP]

104. Well said. Can't believe it took 100 posts before someone

made this point.

Glad someone did though.

[ebw]

105. Re: Well said. Can't believe it took 100 posts before someone

Maybe DU has some delay and/or impeadence issues. I thought it was made plain in the thread-initial post.