This topic has drawn out a lot of emotion, and a lot of ideas concerning what it costs for us all, and how it affects how we do business.

Going on the thought there is no perfect system for claims, and there is always room for improvement, let's have a sharing of ideas on what can be done to make the civil claims process fairer for all. HOWEVER, in doing so, let's look at it from the viewpoint of when we think we have been harmed in some way (we're the plaintiff) and not from the viewpoint of defending a claim. It's easy to put limits on what everyone else does to us as we try to make a living, but are we so restrictive on ourselves?

So, what do we want the "system" to do (e.g., administrative claim, mediation, arbitration, initial litigation and appeal, what's the limit, front money) WHEN its us with the claim? And let's not just limit it to medical malpractice, but the full scope of "harm" (e.g., auto damage, home repair, wrongful death from non-medical services, etc.). And do we want this handled in the federal legal system or the state legal system (big differences here)?

Thanks!

Good subject Steve. I would want to start with whoever wins the claim, pays legal cost on both sides. That would stop most of the frivolous law suits.

On medical there should be some way to limit the tests doctors do only to show in court if necessary that they explored all options. Perhaps an independent medical review board on required testing. Maybe a limit on the amount of an award for certain types of negligence. Was the person incompetent or did they just do what was normal and not go above and beyond that norm.

Good Samaritan laws to protect those trying to help others. Everyone will make mistakes. No one wants to make a mistake that causes damage to someone else. However it does happen. People who have been injured due to someones direct fault need recourse. But some of the awards for that recourse have been ridiculous at best.

Doctors feel the biggest impact today, but we all have to pay for the runaway cost of insurance. How many of us buy higher limits because we are afraid someone will slip and fall in your driveway and sue you for some incredible amount of money. And it just continues to escalate beyond the test of being reasonable.

Good Samaritan laws, interesting. There has been alot of "air time" lately on people not helping other people in need. The media shows the video of a man dying in the street and people just walking by without helping. Another shows someone shooting a person in a store and everybody just ignores it and continues to shop. Why is this happening?
I have my own ideas on this subject. When I was young it was part of the culture to help people and you were praised when you did.
Skip forward about 40 years and now people are taught to not get involved. Why is that?
Is it because you see it on television, movies and news reports that helping people gets you in trouble? YES. We have gone from a help your fellow man to "No good deed goes unpunished" Why....there is only one word that comes to my mind...lawsuits.

the request of the thread, I would like to mention a key factor in the reforming of the tort system.
That is the lawyer component. It is this profession that has been a major catalyst in the ongoing abuse of the system.I suppose one could argue as long as it is within the letter of the law it is not abuse. It is in the same vein as executives being astronomically paid for leading companies with failing financials.

Over the years tort has been a target for reform, with NO success. It has acknowledged that with lawyer dominated law making body it is unlikely to get any tangible results that involve penalizing the lawyer.

However, as mentioned above winner pays all fees, both sides, et al....or a cap per case....or something that takes the vulture/predator nature of the profession out of the equation.

Good luck, the wagons are circled!!!

btk

I am a little hazy on the details but reform took a back seat during the Clinton administration as laws were approved to help the attorney's lobbying efforts. Bush tried to beat back the fires but the flames were too spread and out of control.
You know what happens when there is too much power without checks and balances. Lawyers writing laws and lawyers making money from said laws. Is there any wonder that lawyers have a favorability rating equal to sharks?

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I don't think tort reform would be as big an issue as it is if not for the ridiculously large awards juries have made for loss of life, pain and suffering, or punitive awards against the defendant. That plus the class action suits that lawyers put together, principally as a way to make themselves a whole lot of money.

I think the following couple of rules would solve the problem. I even think that my proposals would be fairly hard to debate--I hope so at least. Here are my ideas...

-- Awards for loss of life should be required to be calculated giving significant weight to the education, occupation and recent income of the decedent. Said a little more coarsely, an award for an uneducated ditch digger should be less than the award for the CEO of a Fortune 500 company. In either case, however, the award for loss of life should be limited to a multiple of the decedent's recent annual income or potential to earn an income, maybe 3 to 5X, or an estimate of what that income would have been, based on his eduction and work experience.

-- Awards for pain and suffering should be limited to a fixed amount, somewhere in the range of $1 million maximum seems fair.

-- There shall be no punitive awards permitted.

-- Class action suits shouldn't be prohibited, but the same award limitations listed above should apply to the members of the class. In addition, the amount of the plaintiff's lawyer's fees should be limited to a percentage of the final award, say an amount not to exceed 15%, or 110% of the actual billable hours documented by the plaintiff's lawyers at their standard hourly rates in effect immediately prior to the filing of the suit.

-- In the case of any medical malpractice or personal injury lawsuit, the unsuccessful plaintiff should be required to pay the legal fees and court costs of the defendant.

These simple rules would dramatically reduce the number of medical malpractice suits filed. At the same time, the awards specified for successful plaintiffs seem (to me anyway) fair from the viewpoint of their "value" to society and their proven ability to earn an income.

Sorry VK but they don't work for me.

How about in the loss of life, no more then what the person who lost their life thought their life was worth? Not to exceed what ever they had for life insurance. That way every one assigns their own life value. If no insurance, then not to exceed 50K. And that's more then the government thinks a young soldiers life is worth.

And for injury maybe 50% of that amount.

Class action suits, lawyers could not exceed payments of more then 1 times their annual income for the past 5 year average. And that is better then what your beloved president wants CEO's to earn.

We agree on punitive.

Originally Posted by Villages Kahuna

I don't think tort reform would be as big an issue as it is if not for the ridiculously large awards juries have made for loss of life, pain and suffering, or punitive awards against the defendant. That plus the class action suits that lawyers put together, principally as a way to make themselves a whole lot of money.

I think the following couple of rules would solve the problem. I even think that my proposals would be fairly hard to debate--I hope so at least. Here are my ideas...

-- Awards for loss of life should be required to be calculated giving significant weight to the education, occupation and recent income of the decedent. Said a little more coarsely, an award for an uneducated ditch digger should be less than the award for the CEO of a Fortune 500 company. In either case, however, the award for loss of life should be limited to a multiple of the decedent's recent annual income or potential to earn an income, maybe 3 to 5X, or an estimate of what that income would have been, based on his eduction and work experience.

-- Awards for pain and suffering should be limited to a fixed amount, somewhere in the range of $1 million maximum seems fair.

-- There shall be no punitive awards permitted.

-- Class action suits shouldn't be prohibited, but the same award limitations listed above should apply to the members of the class. In addition, the amount of the plaintiff's lawyer's fees should be limited to a percentage of the final award, say an amount not to exceed 15%, or 110% of the actual billable hours documented by the plaintiff's lawyers at their standard hourly rates in effect immediately prior to the filing of the suit.

-- In the case of any medical malpractice or personal injury lawsuit, the unsuccessful plaintiff should be required to pay the legal fees and court costs of the defendant.

These simple rules would dramatically reduce the number of medical malpractice suits filed. At the same time, the awards specified for successful plaintiffs seem (to me anyway) fair from the viewpoint of their "value" to society and their proven ability to earn an income.

I would like to add a couple that I think are fair.

Med Mal cases should be heard and decided by a committee or jury that is truly of one's peers, people in the field that can digest the information and make decisions that are not based on the emotional aspect of the dog and pony show most cases turn into. (The side with the best actors, theatrics, and ability to manipulate people wins now).

Limits on attorney's fees in a settlement or judgement. (Physicians and hospitals fees are strictly limited and controlled: quid pro quo).

Standard guidelines for awards regarding pain and sufferring, future earnings, and other factors that figure into judgements.

Punative damages may not be awarded against a manufacturer or medical product that has been approved by the FDA (unless fraud during the approval process can be proven).

Physicians that follow evidence based medicine and guidelines should be afforded significant protection. This is how medicine is meant to be practiced. This would also result in a significant decrease in the likely billions of dollars being wasted on defensive medicine.

Spend more money and effort on patient saftey and prevention instead of the reactive behavior of lawsuits. This should speak to the crux of the matter.

Make it easier to report errors and look for solutions, people are scared to report anything right now.

Alas most of this will not come to pass. Culturally there is an attitude that whenever there is a negative outcome, somebody should be paying money to someone else. Sometimes these outcomes just happen, and no one is truly at fault, but "talented" attorneys can twist any event into a costly legal morass more easily circumvented by giving up a quick settlement regardless of fault. Additionally, we have more technologies, with resultant higher expectations, making failures seem more outstanding. Couple this with the sense of entitlement that our society seems to have that they "have to get something" to have been treated well (antibiotics for common colds, high tech and high dollar tests out of proportion to symptoms and findings etc..) and the resultant anger if they don't get it, and the whole mess is near impossible to overcome.

So far, no one has put themselves in the position of the plaintiff/claimant. If you were the one who was harmed (regardless of the type of harm), what do you think is the maximum that you should expect, and what's "fair"?

If a person broke your arm "by accident," what's the most that should be?
If you are killed by an "OJ" type, what should your family expect?
If you are crippled at age 40 due to a preventable medical error, what is your "fair expectation" of claim?
If your house is destroyed because the plumber screwed up the gas lines, should the plumber be liable for losses beyond your insurance coverage, and by how much?
If your grandchild chewed on a toy made of a toxic substance, what should the maximum be for that cchild's injuries or death, or for a class-action suit against the parties who sold/made the toy?

Again, it's easy to gore the other guy's ox, especially if we see the issue only through the defendant's eyes. Defendants want caps, and usually plaintiffs want the sun, moon and the stars. As a plaintiff/claimant, what are your proposed reforms? This is where it gets hard - putting constraints on us.

Originally Posted by SteveZ

So far, no one has put themselves in the position of the plaintiff/claimant. If you were the one who was harmed (regardless of the type of harm), what do you think is the maximum that you should expect, and what's "fair"?

If a person broke your arm "by accident," what's the most that should be?
If you are killed by an "OJ" type, what should your family expect?
If you are crippled at age 40 due to a preventable medical error, what is your "fair expectation" of claim?
If your house is destroyed because the plumber screwed up the gas lines, should the plumber be liable for losses beyond your insurance coverage, and by how much?
If your grandchild chewed on a toy made of a toxic substance, what should the maximum be for that cchild's injuries or death, or for a class-action suit against the parties who sold/made the toy?

Again, it's easy to gore the other guy's ox, especially if we see the issue only through the defendant's eyes. Defendants want caps, and usually plaintiffs want the sun, moon and the stars. As a plaintiff/claimant, what are your proposed reforms? This is where it gets hard - putting constraints on us.

I would be completely comfortable submitting to things outlined above as a plantiff because they are fair and real, and some are easily extrapolated to the non medical or tort environment.

Recovery for injury claims is outlined in state statutes. As you would expect, the elements of recovery vary by state. The vast majority of these claims are handled in state court versus federal court, and the overwhelming majority of claims are settled between the involved parties and no trial is ever held.

Typically, the non at fault party can recover for incurred expenses (meds, lost of wages, etc) past and future pain and suffering, future loss of income, and disability. There may be more or fewer elements of recovery depending on the statute. The injured party has the burden of proving what damages were sustained.

Wrongful death statues outline the elements of recovery in death cases. They would include loss of society and companionship to certain loved ones, as outlined in the state statute (usually spouse and children) pain and suffering if death is not immediate, future loss of income and other elements varying by state. If an immediate family happens to witness the event, they may be able to recover for wrongful infliction of emotional distress

If you break my arm on a non displaced fracture, not worth a lot of money. If you crush CC Sabathia's pitching arm, good luck with that one.

If a plumber screws up he doesn't get an "offset" due to the fact you had insurance. The plumber is liable for all damages as outlined in the applicable statute. Whatever the insurance company pays, they'll go after the plumber for and if they didn't cover everything, you can pursue him.

To many individual variables involved to try to determine what's "fair" for each party under every conceivable circumstance.

The press always reports the large verdicts because the plaintiff bar makes sure they get some kind of new release. You don't see many headlines stating "Seriously injured man loses case". So while we always hear about the extremes of the legal system, overall, it works OK, not great however.

Class action litigation is a mess and so is venu shopping, joint and several liability and the lack of financial penalties agains the non prevailing party. You can file a frivolous lawsuit and the defendant, without any fault, is faced with excesive defense costs to prove they are without fault. So they dump defense costs as an offer to eliminate the lawsuit. The loser, not the winner, needs to pay defense costs to the prevailing party in all litigation.

If you ever need a real laugh, do some research on the wonderful Florida No Fault statute and you will rapidly see why we are bombarded with never ending ads from the wonderful plaintiff bar.

Originally Posted by l2ridehd

Good subject Steve. I would want to start with whoever wins the claim, pays legal cost on both sides. That would stop most of the frivolous law suits.

On medical there should be some way to limit the tests doctors do only to show in court if necessary that they explored all options. Perhaps an independent medical review board on required testing. Maybe a limit on the amount of an award for certain types of negligence. Was the person incompetent or did they just do what was normal and not go above and beyond that norm.

Good Samaritan laws to protect those trying to help others. Everyone will make mistakes. No one wants to make a mistake that causes damage to someone else. However it does happen. People who have been injured due to someones direct fault need recourse. But some of the awards for that recourse have been ridiculous at best.

Doctors feel the biggest impact today, but we all have to pay for the runaway cost of insurance. How many of us buy higher limits because we are afraid someone will slip and fall in your driveway and sue you for some incredible amount of money. And it just continues to escalate beyond the test of being reasonable.

Yes sounds good except for the poor guy who is in the right and looses. Then he is really screwed. Sorry ,but think this is a terrible idea.

Originally Posted by SteveZ

So far, no one has put themselves in the position of the plaintiff/claimant....Defendants want caps, and usually plaintiffs want the sun, moon and the stars.

Steve, there's no absolutely correct answer. But I think the general drift of the responses so far is that constraints on awards, pretty significant constraints, are both needed and fair. When I laid down my proposals, I wasn't trying to gore the plaintiff's ox or the trial lawyers. I was trying to set down some limitations that seemed to make common sense. l2ridehd set down some limits even tighter than I proposed. I'm sure he/she thought they were fair and appropriate, as well.

What it boils down to, I think, is that award limitations and some way to address trail lawyer's fees should be important parts of any tort reform considered. I just wish it would be considered. But I'm not holding my breath.

There is something happening in the industry that is making it less profitable to just sue. Medicare is requiring both workers comp and liability claims to fund part of the settlement for the future medical expenses - a medicare set aside. It is not required for small claims - but any claims over $25000 where there is a likelihood of the person being on Medicare or qualifing for Medicare within the next 36 months (due to injury, age, etc.). Before, claimant got the settlement and then could file for his bills to be paid by Medicare in the future - no more until that fund is exhausted and they tell you exactly how much of the settlement must go into that fund.
Mediation has been an excellent tool in Florida to hold costs down under workers compensation. It is required by law before anything actually goes to a work comp hearing in Florida. I would say I settled 90% of my cases through mediation. It can be done without attorneys or with. It is actually easier with attorneys since the claimant feels he has someone on his side. If you look at how the insurance rates have plummeted in Florida for business (workers comp) in the last few years, I think it is certainly a tool to be considered across the board.
I disagree with the thought the winner of the suit pays everyones costs. The winner is often the defense - why should a homeowner's insurance company have to pay for the plaintiff to sue you just because they prevailed. I think that would cause more suits, not less. Many cases are dismissed because they are proved beforehand there is no liability - I would not want to have to fund everyone that wanted to bring an action against someone.
Just my two cents.

There is one aspect of tort actions that has always bewildered and frustrated me. That is "punitive damages." (Should that be "those are punitive damages" even though I call it one aspect? Help, Boomer.) Okay, something happens, someone has damages. They should have those damages remedied. We'll even throw in a bundle for pain and suffering for the plaintiff and lawyer to split. But suppose the court rules that the tort was the result of egregious action/inaction/misaction on the part of the defendant. They want to make sure he gets the point that he is in the wrong and maybe set an example, so the court adds another $25mil in punitive damages.

So, why the hell should that $25mil go to the plaintiff and shyster -- oops -- attorney? They have already been handsomely rewarded in the other remedies ordered. They have no right or claim on this additional award. I'd initially thought the money could go into the community general fund, but I now question whether that might turn the courts into revenue grabbers, kinda high tech speed traps. Then I thought maybe give all punitive fines to charity. I wouldn't mind seeing the money go to the local County Home for the Bewildered or other worthwhile organization, but I realize the inherent danger in trying to select a few out of so many. But rather than go to the plaintiff team, I'd rather see the punitive awards collected, converted to cash, and burned on the courthouse steps.





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