We Need Tort Reform!

[Diego in Seattle]

An excellant example of why can be found right here.

[Q, West Coast Style]

It's a bad idea to for tort reform supporters to point to cases from the headlines to make their point. There's a reason that the cases are in the headlines . . . they are not the norm.

Tort reform would interfere with access to justice, the right to a jury trial, and the rights of citicens to dispurse justice as jurors, in the vast majority of cases which never make the news.

[Wolfman]

Tort reform would interfere with access to huge judgments, the right to have a jury to award you a boatload of cash, and the rights of lawyers to tap into the juror's awards, the vast majority of cases which never make the news.

FTFY
you're welcome

[Mikey]

In what ways, if any, should our tort laws be changed?

The chocolate tort needs to be near the front of the display case.

[Terry in Crapchester]

The case Diego cited isn't a tort case per se, more a civil rights case than anything.

Rack Q and JSC, btw. Interesting that a med mal defense attorney is not leading the drumbeat for tort reform, which undoubtedly would benefit many of his clients.

[smackaholic]

The case Diego cited isn't a tort case per se, more a civil rights case than anything.

Rack Q and JSC, btw. Interesting that a med mal defense attorney is not leading the drumbeat for tort reform, which undoubtedly would benefit many of his clients.

Are you implying that someone who is paid to fend off these leeches has an interest in making them go away?

Interesting. Interesting that one can be a dumbfukk and still pass the bar.

[jiminphilly]

feel free to ask questions if you wish.

Explain to me how someone who is found to be either high on drugs or have a BAC above the legal limit (or both) is able to bring a lawsuit against a contractor or a civil engineering firm for a highway project in which the drive of a vehicle (car, motorcycle) is impaired enough to not recognize a new traffic pattern sign, cones etc.. and crashes into a crane or barrier and becomes injured/paralyzed? I recognize I'm not giving you all the facts but assume the roadway was properly marked to give the average driver ample warning to slow down and drive more carefully through a construction zone.

Whether that person actually collects on his lawsuit is immaterial to the fact that thousands upon thousands will be spent on cost of defense and the companies who insure the contractor or engineering firm are faced with the reality that they may end up paying out a few hundred grand JUST TO GET OUT OF THE LAWSUIT.

Please explain that.

[Terry in Crapchester]

The case Diego cited isn't a tort case per se, more a civil rights case than anything.

Rack Q and JSC, btw. Interesting that a med mal defense attorney is not leading the drumbeat for tort reform, which undoubtedly would benefit many of his clients.

Are you implying that someone who is paid to fend off these leeches has an interest in making them go away?

Interesting. Interesting that one can be a dumbfukk and still pass the bar.

As an attorney, your first obligation is to your client. Above yourself, even.

And before you accuse me of bullshit, ask my wife whether I believe that. She and I have gotten almost to the point of divorce over that.

Against that backdrop, there's no doubt that JSC's former clients are better off if they don't get sued in the first place, then even if they get sued and win. In the latter case, they're still spending a considerable amount of time and money to defend the case. Not to mention that the insurance carrier might end up dropping them anyway.

[Terry in Crapchester]

feel free to ask questions if you wish.

Explain to me how someone who is found to be either high on drugs or have a BAC above the legal limit (or both) is able to bring a lawsuit against a contractor or a civil engineering firm for a highway project in which the drive of a vehicle (car, motorcycle) is impaired enough to not recognize a new traffic pattern sign, cones etc.. and crashes into a crane or barrier and becomes injured/paralyzed? I recognize I'm not giving you all the facts but assume the roadway was properly marked to give the average driver ample warning to slow down and drive more carefully through a construction zone.

Whether that person actually collects on his lawsuit is immaterial to the fact that thousands upon thousands will be spent on cost of defense and the companies who insure the contractor or engineering firm are faced with the reality that they may end up paying out a few hundred grand JUST TO GET OUT OF THE LAWSUIT.

Please explain that.

That depends on the laws of the state you're in. Under the old system, contributory negligence barred any recovery in a lawsuit. Thus, a plaintiff who was even 1% liable for his injuries could not prevail.

Every state has since abolished the contributory negligence standard (which was thought to be too harsh) and replaced it with a comparative negligence standard. Under comparative negligence, a plaintiff who is partly responsible for his own injuries can prevail in a lawsuit, but his damages are reduced to the extent he is found liable. For example, a plaintiff who is 20% responsible for his own injuries can recover only 80% of his actual damages.

Now, there are actually two different comparative negligence standards: "pure" comparative negligence, and "modified" comparative negligence. In a "pure" comparative negligence jurisdiction, a plaintiff who is 99% responsible for his own injuries can proceed, although recovery would be limited only to 1% of his actual damages. In a "modified" comparative negligence jurisdiction, a plaintiff who is > 50% responsible for his own injuries is barred from recovery.

So in your example, such a lawsuit in a "modified" comparative negligence jurisdiction would probably be subject to dismissal at the outset. That wouldn't be the case in a "pure" comparative negligence jurisdiction, however.

[Cuda]

Why not just put the medical industry in charge of regulating the legal industry?

[jiminphilly]

The three defendants of course will show all of the faults of the driver, that he was drunk and fell asleep. But they will also argue that if any of the defendants caused injuries, then it was the other defendants and not them.

Correct. In my line of work I see the lawsuits as they relate to design professionals who get pulled into frivolous lawsuits for alleged design flaws/lack of standard of care on situations that I just outlined. In what amounts to legal extortion, assholes like that are able to file a lawsuit. That's a significant problem right there. The idiot was breaking the law and yet some how is afforded the opportunity to seek compensatory damages..

So in the middle of jury deliberations, the form will look kinda like this:
.....

I note that you breezed right past the whole settlement stage and went right for the jury trial.
You've heard of the term judicial hellhole? http://www.atra.org/reports/hellholes/report.pdf

I don't hold lawyers entirely responsible because there are just as many excellent lawyers who can negotiate down a multi-million dollar demand to a few hundred thousand and avoid a jury trial could quite honestly go the other way. But there is a legitmate segment of the legal profession who have earned the ambulance-chaser title and I have a hard time believing they are as Terry puts it

As an attorney, your first obligation is to your client. Above yourself, even.

when in reality that lawyer isn't looking at this as an obligation to the piece of trash he's representing but rather as a pay-day since a significant portion of any settlement is going in his pocket anyway.

[Terry in Crapchester]

The three defendants of course will show all of the faults of the driver, that he was drunk and fell asleep. But they will also argue that if any of the defendants caused injuries, then it was the other defendants and not them.

Correct. In my line of work I see the lawsuits as they relate to design professionals who get pulled into frivolous lawsuits for alleged design flaws/lack of standard of care on situations that I just outlined. In what amounts to legal extortion, assholes like that are able to file a lawsuit. That's a significant problem right there. The idiot was breaking the law and yet some how is afforded the opportunity to seek compensatory damages..

So in the middle of jury deliberations, the form will look kinda like this:
.....

I note that you breezed right past the whole settlement stage and went right for the jury trial.
You've heard of the term judicial hellhole? http://www.atra.org/reports/hellholes/report.pdf

I don't hold lawyers entirely responsible because there are just as many excellent lawyers who can negotiate down a multi-million dollar demand to a few hundred thousand and avoid a jury trial could quite honestly go the other way. But there is a legitmate segment of the legal profession who have earned the ambulance-chaser title and I have a hard time believing they are as Terry puts it

As an attorney, your first obligation is to your client. Above yourself, even.

when in reality that lawyer isn't looking at this as an obligation to the piece of trash he's representing but rather as a pay-day since a significant portion of any settlement is going in his pocket anyway.

It works the other way as well. I'll give you a thumbnail sketch of the facts of an actual med mal case I'm handling right now.

My client went into the hospital in labor. While she was in labor, a few nurses searched futilely for a vein from which to do a blood draw. One finally stuck a needle into her left (non-dominant) wrist. In so doing, she struck the ulnar nerve. My client stated in her deposition that the pain from that was more intense than the labor pain. My client still has pain, 4+ years later, in her left wrist. Her neurologist stated that the nerve was not severed, but that there was permanent minor damage to the nerve.

My client has not been able to work since that incident. At the time, she was taking an online graduate course in Human Resources. She had to withdraw from the course of study because it was too painful to use the computer. She also was unable to work in either of the lines of work she previously had had -- cosmetology and bookkeeping (too painful to count large quantities of cash by hand). She took it upon herself to get retraining, and enrolled in a graduate course in education.

Meanwhile, all of the hospital employees, including the one my client identified to me as the nurse responsible for this, have gone into Sgt. Schultz mode -- "I see nothing." We made a settlement demand, admittedly a tad on the high side (my client picked the number). Off the record, I told the hospital attorney that if the problem was that the amount was too high, to come back to me with a reasonable counter-offer, and I would take that to my client, but I wouldn't bid against myself. I've heard nothing from the hospital's attorney. I can only conclude that either the hospital, or its insurance carrier, is refusing to settle under any circumstance, at least for the time being.

That, of course, leaves me no alternative but to push the case to trial. I don't mind trying the case, since if there is a trial, it probably will be mostly, if not exclusively, about damages. In other words, the question won't be will my client get anything, but how much will she get. What bothers me is that I would like to put this case to bed and move on, both for my client's sake and my sake. If it goes to trial, trial is probably another year away -- if I'm lucky. And the case already has been pending for over two years.

[Terry in Crapchester]

Terry, can you file a motion for summary judgment just on the issue of liability? If you win that, perhaps they would be more interested in a settlement.

That's what I'm planning to do. I have to file a little more discovery first. Unfortunately, my client is sometimes a little slow in complying.

[Q, West Coast Style]

Stop lying, asshole.

Stop menstruating, douchebag.

[jiminphilly]

It works the other way as well. I'll give you a thumbnail sketch of the facts of an actual med mal case I'm handling right now.

My client went into the hospital in labor. While she was in labor, a few nurses searched futilely for a vein from which to do a blood draw. One finally stuck a needle into her left (non-dominant) wrist. In so doing, she struck the ulnar nerve. My client stated in her deposition that the pain from that was more intense than the labor pain. My client still has pain, 4+ years later, in her left wrist. Her neurologist stated that the nerve was not severed, but that there was permanent minor damage to the nerve.

My client has not been able to work since that incident. At the time, she was taking an online graduate course in Human Resources. She had to withdraw from the course of study because it was too painful to use the computer. She also was unable to work in either of the lines of work she previously had had -- cosmetology and bookkeeping (too painful to count large quantities of cash by hand). She took it upon herself to get retraining, and enrolled in a graduate course in education.

Meanwhile, all of the hospital employees, including the one my client identified to me as the nurse responsible for this, have gone into Sgt. Schultz mode -- "I see nothing." We made a settlement demand, admittedly a tad on the high side (my client picked the number). Off the record, I told the hospital attorney that if the problem was that the amount was too high, to come back to me with a reasonable counter-offer, and I would take that to my client, but I wouldn't bid against myself. I've heard nothing from the hospital's attorney. I can only conclude that either the hospital, or its insurance carrier, is refusing to settle under any circumstance, at least for the time being.

That, of course, leaves me no alternative but to push the case to trial. I don't mind trying the case, since if there is a trial, it probably will be mostly, if not exclusively, about damages. In other words, the question won't be will my client get anything, but how much will she get. What bothers me is that I would like to put this case to bed and move on, both for my client's sake and my sake. If it goes to trial, trial is probably another year away -- if I'm lucky. And the case already has been pending for over two years.

Here's the difference between your scenario and mine. The nurse was attemping a medical procedure i.e. a professional service and has allegedly created a circumstance where a patient was injured as a result of her actions. Your client filed a lawsuit against the hospital and their insurance coverage kicked in. Got it.

In my scenario, the civil engineer wasn't even remotely liable. Some stupid, drugged up grease ball crashed his car into a crane and yet somehow he's allowed to file a lawsuit for damages. How this for a start. No longer allow anyone who is under the influence of any substance to be able file a lawsuit if they find themselves mangled on the side of the road because of their own stupidity?

[smackaholic]

It works the other way as well. I'll give you a thumbnail sketch of the facts of an actual med mal case I'm handling right now.

My client went into the hospital in labor. While she was in labor, a few nurses searched futilely for a vein from which to do a blood draw. One finally stuck a needle into her left (non-dominant) wrist. In so doing, she struck the ulnar nerve. My client stated in her deposition that the pain from that was more intense than the labor pain. My client still has pain, 4+ years later, in her left wrist. Her neurologist stated that the nerve was not severed, but that there was permanent minor damage to the nerve.

My client has not been able to work since that incident. At the time, she was taking an online graduate course in Human Resources. She had to withdraw from the course of study because it was too painful to use the computer. She also was unable to work in either of the lines of work she previously had had -- cosmetology and bookkeeping (too painful to count large quantities of cash by hand). She took it upon herself to get retraining, and enrolled in a graduate course in education.

Meanwhile, all of the hospital employees, including the one my client identified to me as the nurse responsible for this, have gone into Sgt. Schultz mode -- "I see nothing." We made a settlement demand, admittedly a tad on the high side (my client picked the number). Off the record, I told the hospital attorney that if the problem was that the amount was too high, to come back to me with a reasonable counter-offer, and I would take that to my client, but I wouldn't bid against myself. I've heard nothing from the hospital's attorney. I can only conclude that either the hospital, or its insurance carrier, is refusing to settle under any circumstance, at least for the time being.

That, of course, leaves me no alternative but to push the case to trial. I don't mind trying the case, since if there is a trial, it probably will be mostly, if not exclusively, about damages. In other words, the question won't be will my client get anything, but how much will she get. What bothers me is that I would like to put this case to bed and move on, both for my client's sake and my sake. If it goes to trial, trial is probably another year away -- if I'm lucky. And the case already has been pending for over two years.

Here's the difference between your scenario and mine. The nurse was attemping a medical procedure i.e. a professional service and has allegedly created a circumstance where a patient was injured as a result of her actions. Your client filed a lawsuit against the hospital and their insurance coverage kicked in. Got it.

In my scenario, the civil engineer wasn't even remotely liable. Some stupid, drugged up grease ball crashed his car into a crane and yet somehow he's allowed to file a lawsuit for damages. How this for a start. No longer allow anyone who is under the influence of any substance to be able file a lawsuit if they find themselves mangled on the side of the road because of their own stupidity?

I see little difference other than the unfortunate woman did not cause this case. She merely had the misfortune of having small veins.

How is this the nurse's fault?

Can they show that the nurse was hammered?

Can they prove incompetence? A trail of victims of this nurse?

I doubt it.

Your client, from the looks of it suffered a case of shit happening.

Why the fukk should she get paid?

I hope that hospital buttfukks you and this gimp bitch square in your pieholes.

Unfortunately, this case will probably go to a jury of sympathetic, hand out layabouts.

And this is the real problem. The jury of your peers bullshit needs to be rehashed because our "peers" are often mouthbreathing shitstains. OJ verdict out front should have told you.

[Terry in Crapchester]

It works the other way as well. I'll give you a thumbnail sketch of the facts of an actual med mal case I'm handling right now.

My client went into the hospital in labor. While she was in labor, a few nurses searched futilely for a vein from which to do a blood draw. One finally stuck a needle into her left (non-dominant) wrist. In so doing, she struck the ulnar nerve. My client stated in her deposition that the pain from that was more intense than the labor pain. My client still has pain, 4+ years later, in her left wrist. Her neurologist stated that the nerve was not severed, but that there was permanent minor damage to the nerve.

My client has not been able to work since that incident. At the time, she was taking an online graduate course in Human Resources. She had to withdraw from the course of study because it was too painful to use the computer. She also was unable to work in either of the lines of work she previously had had -- cosmetology and bookkeeping (too painful to count large quantities of cash by hand). She took it upon herself to get retraining, and enrolled in a graduate course in education.

Meanwhile, all of the hospital employees, including the one my client identified to me as the nurse responsible for this, have gone into Sgt. Schultz mode -- "I see nothing." We made a settlement demand, admittedly a tad on the high side (my client picked the number). Off the record, I told the hospital attorney that if the problem was that the amount was too high, to come back to me with a reasonable counter-offer, and I would take that to my client, but I wouldn't bid against myself. I've heard nothing from the hospital's attorney. I can only conclude that either the hospital, or its insurance carrier, is refusing to settle under any circumstance, at least for the time being.

That, of course, leaves me no alternative but to push the case to trial. I don't mind trying the case, since if there is a trial, it probably will be mostly, if not exclusively, about damages. In other words, the question won't be will my client get anything, but how much will she get. What bothers me is that I would like to put this case to bed and move on, both for my client's sake and my sake. If it goes to trial, trial is probably another year away -- if I'm lucky. And the case already has been pending for over two years.

Here's the difference between your scenario and mine. The nurse was attemping a medical procedure i.e. a professional service and has allegedly created a circumstance where a patient was injured as a result of her actions. Your client filed a lawsuit against the hospital and their insurance coverage kicked in. Got it.

In my scenario, the civil engineer wasn't even remotely liable. Some stupid, drugged up grease ball crashed his car into a crane and yet somehow he's allowed to file a lawsuit for damages. How this for a start. No longer allow anyone who is under the influence of any substance to be able file a lawsuit if they find themselves mangled on the side of the road because of their own stupidity?

I see little difference other than the unfortunate woman did not cause this case. She merely had the misfortune of having small veins.

How is this the nurse's fault?

Can they show that the nurse was hammered?

Can they prove incompetence? A trail of victims of this nurse?

I doubt it.

Your client, from the looks of it suffered a case of shit happening.

Why the fukk should she get paid?

Jesus, are you really this dumb?

She tried to draw blood through my client's wrist. Ever have that happen to you? Count your blessings if you haven't.

I deposed two nurses, both employees at the hospital (including the one that my client identified to me as the one who did it). Both of them told me that, as a matter of practice, you don't attempt to draw blood through the wrist. Yet that's exactly what happened.

Light starting to come on yet?

You might want to eject at this point.

[smackaholic]

Jesus, are you really this dumb?

She tried to draw blood through my client's wrist. Ever have that happen to you? Count your blessings if you haven't.

I deposed two nurses, both employees at the hospital (including the one that my client identified to me as the one who did it). Both of them told me that, as a matter of practice, you don't attempt to draw blood through the wrist. Yet that's exactly what happened.

Light starting to come on yet?

You might want to eject at this point.

You admit yourself that they tried to get a vein from the usual place and couldn't. In this case, you get one where ever the hell you can.

I 'spose they should have just told her to HTFU (harden the fukk up) and take that labor pain like a man.

[Terry in Crapchester]

Jesus, are you really this dumb?

She tried to draw blood through my client's wrist. Ever have that happen to you? Count your blessings if you haven't.

I deposed two nurses, both employees at the hospital (including the one that my client identified to me as the one who did it). Both of them told me that, as a matter of practice, you don't attempt to draw blood through the wrist. Yet that's exactly what happened.

Light starting to come on yet?

You might want to eject at this point.

You admit yourself that they tried to get a vein from the usual place and couldn't. In this case, you get one where ever the hell you can.

Yet they also admitted that you don't take a blood draw from the wrist under any circumstances. That's a deviation from accepted standards of medical treatment.

Then her neurologist's records confirm a causal relationship between the blood draw and her injury. Game over on liability, as long as the jury believes her. Keep in mind, the hospital hasn't even proffered an alternate version of the facts; their employees don't remember (or so they say). And on this point, the only other eyewitness to the incident who remembers it is her husband (now estranged, so there goes the bias argument), who confirmed her version of the facts.

After all of that, the only question left is how much is she entitled to.

[Bizzarofelice]

The non-lawyers are having a very difficult time defending themselves against the lawyers in this thread.

[Dinsdale]

If by "reform," it means that juries should be better educated before the litigation starts, and the lazy-ass judges keep them grounded in reality, like saying "You don't award $1 Billion for a broken toe," ...

Then I agree with "reform."

Otherwise, I like our system just fine.

How fucking dumb/liberal do you have to be to actually try and curtail people being judge by a jury of their peers?


Fuggit -- just let Obama decide each and every court case... he IS the savior and all.

[Dinsdale]

what changes, if any, would you make to our tort system?

Loser pays would be a good start.

I don't disagree that there should be a system in place to remedy bullshit claims.

I don't see that as "reform" -- I see that as "common sense."


And as far as malpractice and whatnot, like Terry wrist case for example -- it's a cause/effect dealio. The medical profession has decided that they're going to hold your life hostage to seize your wallet, and they're now reaping what they've sown -- when they want such a high premium for their services, they should damn well expect to pay dearly when those services aren't properly rendered... turnabout is fair play. That's the level they chose to escalate things to, and it's not unreasonable to expect people to see them in a bad financial light, and jump when the opportunity arises to stick it to the theives.


Then again... before Big Brother Fed started making laws about insurance, it was very typical to PURCHASE INSURANCE YOURSELF, before having any major medical procedure. It was very cheap to do, and pretty much took the doctor/hospital's liability down to near-nothing, and created rampant competition in the insurance industry...

But noooooo... a corrupt government couldn't let that happen, what with the larger insurance companies lining their pockets and whatnot. So, they actually OUTLAWED a person's ability to insure themself, FORCED people into HMOs, and now we're paying the price.


And if I wasn't actually witnessing it with my own eyes, I think I'd have a hard time believing that, in response to the complete fucktangle that GOVERNMENT REGULATION has caused in the medical/health insurance industry (since they're now one and the same), that...

No, really, I'm not making this up...

To attempt to reverse the end result of government interference...

Some retarded motherfuckers think the answer is...


More government?


Are you people fucking insane?


Wanna "fix" the problems with health care? GET THE FUCKING GOVERNMENT THE HELL OUT OF IT. The ONLY rules the fed should impose on the health care industry are those of every other industry -- antitrust laws, should the need arise.

Other than that, that ol' Constitution thingy works pretty fucking well, if we let it.

[Terry in Crapchester]

Before a med mal case goes to trial in Louisiana, the case has to be presented to a medical review panel. If the defendant is a neurologist, then there will be three neurologists who will review the medical records and then render an expert opinion for the Court.

Does New York have a similar system? If not, do you have another neurologist who can testify, someone other than a treating physician?

In New York, before an attorney can file a med mal complaint, he/she has to sign a certification stating that he/she has consulted with at least one physician licensed to practice in an appropriate area of medicine, and that physician has stated that in the opinion of the physician, a cause of action for medical malpractice exists.

Medical malpractice defendants also get the benefit of a shorter statute of limitations -- 2 years and 6 months vs. 3 years for most other personal injury defendants.

[Cuda]

The non-lawyers are having a very difficult time defending themselves against the lawyers in this thread.

Which is exactly why the lawyers should be regulated by non lawyers.
You surely don't expect them to regulate themselves, do you? Foxes in charge of the henhouse and all that.

[Bizzarofelice]

The non-lawyers are having a very difficult time defending themselves against the lawyers in this thread.

Which is exactly why the lawyers should be regulated by non lawyers.

But all this vitriol has been drummed up not by lawyers, but by failed radio DJs.

[Cuda]

ElvisMonster doesn't even post here anymore

[rozy]

Stop lying, asshole.

Stop menstruating, douchebag.

Q, Kansas City Style

[PSUFAN]

Difference being Q brings the funny

[War Wagon]

While you bring the douchebag.

What's with this horrid color scheme, btw? Halloween is 6 weeks away.

[Bizzarofelice]

I'd rather lawyers from both sides tell me where the problems are in the industry instead of failed radio DJs. Lawyers seem to have more insight in law.

[Cuda]

You'd probably also rather have burglars advise you on which doors and windows to leave unlocked on your house and what the best time is to be away for 3 or 4 hours

[Tom In VA]

Mark Levin is a lawyer.

[Bizzarofelice]

What Tom in VA said.

There are plenty of conservative lawyers who can point out the problems. I would much rather they speak out andwork towards tort reform than to listen to demagogues and failed radio DJs like Limbaugh or Beck for their takes on tort reform. The demagogues should step aside but considering the idiots listening to them why should they. Those hicks sell a lot of Brawndo to the likes of mvscal.

[Diogenes]

In what ways, if any, should our tort laws be changed?

A) No change to actual damages.
B) Limit lawyers' fees on pain and suffering to 15%.
C) Punitive damages go to a general fund to defray the costs of the legal system instead of to the plaintiff.




You're welcome.

[Diogenes]

Difference being Q brings the funny

Link?