Doctors are refusing to treat Lawyers and their families! [Archive]

rgporter

06-15-2004, 09:21 AM

So, I read in today's edition of Newsweek that there are doctors who are refusing to treat Lawyers and their families (including children) in any instances where the treatment is elective (non-emergency). This is being done as a protest against the rise of frivolous lawsuits.

They also mentioned an instance where a nurse whose husband worked for a medical malpractice law firm lost her job at a hospital because of a "conflict of interest and her access to medical records that she may pass on to her husband."

What do you guys think of this? Why don't we have patients sign waviers like doctors in Texas stating that by getting treated by us, you agree to waive your right to legal action in the case of accidental personal injury or death? Leave a clause stating that negligence warrants legal action or whatever. Things have got to change, people!!

I have to say, though, that I do not agree with refusing to treat lawyers and their families. That goes against everything I stand for.

They tried those mandatory abitration agreements here in utah (IHC did anyway). People freeked out, lawers had a field day with it. Used it as proof that the evil HMO was trying to limit your rights even more. Several lawers volunteered to "protect" the peoples rights and fight it in court.
What people don't realize is that the lawers were just looking out for themselves and the only right that they're protecting is the lawers right to take 30% of all those frivolous awards. How can people be so stupid, the law suits and insurence problems are driving the medical field into the ground and they're only worried about their rights to sue for some outrageous settlement?
This kind of thing drives me nuts.
This last year my wife and I had a personal tragedy, our baby died. He was stillborn actually, caused by something our OB/GYN should have caught. Litigation was never a consideration, money won't bring our child back and the doctor felt terrible already. Our country is full of people who just want a quick buck and who cares about the consequences. I hope the reality check isn't when they no longer have the service they used to enjoy, but that is where it looks like were headed.

Indebt4Life

06-15-2004, 09:38 AM

They tried those mandatory abitration agreements here in utah (IHC did anyway). People freeked out, lawers had a field day with it. Used it as proof that the evil HMO was trying to limit your rights even more. Several lawers volunteered to "protect" the peoples rights and fight it in court.
What people don't realize is that the lawers were just looking out for themselves and the only right that they're protecting is the lawers right to take 30% of all those frivolous awards. How can people be so stupid, the law suits and insurence problems are driving the medical field into the ground and they're only worried about their rights to sue for some outrageous settlement?
This kind of thing drives me nuts.
This last year my wife and I had a personal tragedy, our baby died. He was stillborn actually, caused by something our OB/GYN should have caught. Litigation was never a consideration, money won't bring our child back and the doctor felt terrible already. Our country is full of people who just want a quick buck and who cares about the consequences. I hope the reality check isn't when they no longer have the service they used to enjoy, but that is where it looks like were headed.

rgporter,
I am truly sorry for your loss. I can't even imagine what it must be like. However, I commend you for your bravery and the way in which you handled that matter. It is true. Money won't bring back a child and I am sure that your Doc did not intend to hurt your unborn baby. Unfortunately, things happen. It sucks when it happens to us. I hope that you and your wife will start a family someday. And I am sure that you will make a great father.
Indebt

Nike

06-15-2004, 09:56 AM

Personally, if I knew of a lawyer who has participated in frivolous malpractice lawsuits, I wouldn't want to help them (as long as it wasn't an emergency obviously), or, I would charge them some ridiculous amount of money if I could. If lawyers like that are going to put doctors out of business, then they (doctors) wouldn't be there to help them (lawyers) anyway.

samurai_lincoln

06-15-2004, 09:56 AM

No legal duty. This is true.

Judd

I concur with your point. Hippocratic oath, anyone? For those that trot out this argument - no legal duty to treat anyone - you are dancing on a dangerously slipperly slope. What if we were to substitute "blacks" or "gays" for lawyers. Would you still hold the same views? The distinction between refusing to provide medical service to someone based on their chosen vocational path and refusing based on traits beyond their control is a razor fine one indeed.

Further, I think blaming plaintiffs' attorneys is somewhat misguided, and focusing on only a small portion of the problem. Certainly there are some bad apples in the group that file frivolous suits. But should this prevent a patient from legitimate recovery when their doctor screws up? Should a honest, industrious med mal attorney be refused spinal surgery to alleviate debilitating pain just b/c he has won a few verdicts against doctors? Again, stereotyping an entire group based on the actions of a few is a dangerous exercise.

No, the real culprit is the greedy insurance companies. Here are some facts and statistics to back that claim up. First off, realize that insurance companies are exempted from federal antitrust laws, and may essentially price fix at will. Doctors have no choice but to pay these ridiculous fees... where else can they go? Eliminating this exemption would be a simple step in the right direction... let's see what the free market rates actually are for such coverage.

And insurance companies love to promote med mal recovery cap legislation (i.e. recovery may not exceed $250k or $500k). Which does make sense on some level... but what if you are the victim of malpractice, and your damages exceed this level? $250k is NOT much money for someone rendered helpless, in pain, and unable to work due to medical negligence. Furthermore, the idea that these caps make malpractice insurance more affordable is a complete sham. From 1991 to 2002, the median malpractice premium increased 48.2 percent in states that capped recovery of noneconomic damages. In states with no caps, the increase was 35.9 percent, according to Weiss Ratings Inc. Huh? Why are insurance companies raising their rates in states with caps? Greed, pure and simple. In Colorado, which caps both economic and noneconomic damages, malpractice payouts decreased from $39 million in 1997 to $36 million in 2001. Over that same time, premiums increased from $87 million to $119 million, according to a press release from Rep. Diana DeGette. This eliminates any notion that overall payouts have risen despite the cap. Insurance companies have simply bumped up their profit margin.

Support for legislation that would cap recovery of noneconomic damages in medical malpractice cases presumes that 1) malpractice litigation causes skyrocketing malpractice premiums, and 2) caps will make insurance more affordable. Those presumptions are absolutely false. The fact that so many people believe malpractice lawsuits are an important factor in rising health-care costs is a tribute to the success of insurance industry propaganda.

flighterdoc

06-15-2004, 10:00 AM

I concur with your point. Hippocratic oath, anyone? For those that trot out this argument - no legal duty to treat anyone - you are dancing on a dangerously slipperly slope. What if we were to substitute "blacks" or "gays" for lawyers. Would you still hold the same views? The distinction between refusing to provide medical service to someone based on their chosen vocational path and refusing based on traits beyond their control is a razor fine one indeed.

Further, I think blaming plaintiffs' attorneys is somewhat misguided, and focusing on only a small portion of the problem. Certainly there are some bad apples in the group that file frivolous suits. But should this prevent a patient from legitimate recovery when their doctor screws up? Should a honest, industrious med mal attorney be refused spinal surgery to alleviate debilitating pain just b/c he has won a few verdicts against doctors? Again, stereotyping an entire group based on the actions of a few is a dangerous exercise.

No, the real culprit is the greedy insurance companies. Here are some facts and statistics to back that claim up. First off, realize that insurance companies are exempted from federal antitrust laws, and may essentially price fix at will. Doctors have no choice but to pay these ridiculous fees... where else can they go? Eliminating this exemption would be a simple step in the right direction... let's see what the free market rates actually are for such coverage.

And insurance companies love to promote med mal recovery cap legislation (i.e. recovery may not exceed $250k or $500k). Which does make sense on some level... but what if you are the victim of malpractice, and your damages exceed this level? $250k is NOT much money for someone rendered helpless, in pain, and unable to work due to medical negligence. Furthermore, the idea that these caps make malpractice insurance more affordable is a complete sham. From 1991 to 2002, the median malpractice premium increased 48.2 percent in states that capped recovery of noneconomic damages. In states with no caps, the increase was 35.9 percent, according to Weiss Ratings Inc. Huh? Why are insurance companies raising their rates in states with caps? Greed, pure and simple. In Colorado, which caps both economic and noneconomic damages, malpractice payouts decreased from $39 million in 1997 to $36 million in 2001. Over that same time, premiums increased from $87 million to $119 million, according to a press release from Rep. Diana DeGette. This eliminates any notion that overall payouts have risen despite the cap. Insurance companies have simply bumped up their profit margin.

Support for legislation that would cap recovery of noneconomic damages in medical malpractice cases presumes that 1) malpractice litigation causes skyrocketing malpractice premiums, and 2) caps will make insurance more affordable. Those presumptions are absolutely false. The fact that so many people believe malpractice lawsuits are an important factor in rising health-care costs is a tribute to the success of insurance industry propaganda.

The caps are only on so-called "pain and suffering" awards. Even here in California (where we've had a $250k cap for years and years) the actual economic damages can be awarded - for example if you'll need full care for the rest of your life and you're expected to live 30 more years, thats how much you'd get. Plus the $250k pain and suffering.

samurai_lincoln

06-15-2004, 10:16 AM

The caps are only on so-called "pain and suffering" awards. Even here in California (where we've had a $250k cap for years and years) the actual economic damages can be awarded - for example if you'll need full care for the rest of your life and you're expected to live 30 more years, thats how much you'd get. Plus the $250k pain and suffering.

Not always. Read my post carefully:
"In Colorado, which caps both economic and noneconomic damages, malpractice payouts decreased from $39 million in 1997 to $36 million in 2001."

Colorado has a $1M total cap (econ and non-econ) which is a pretty freakin' low amount over a lifetime. See also Indiana, Louisiana, Virginia, etc. which also have total recovery caps.
http://www.issuespa.net/resources/image/caps-summary_of_state_laws.htm

Here is a link to the full Weiss study, which is well done:
http://www.weissratings.com/MedicalMalpractice.pdf

Also, if you think all non-econ damages are bogus, you either have little sense of compassion or don't completely understand the meaning of the term. Non-economic damages compensate people for injuries that are very real, like permanent disfigurement, loss of sight or a limb, loss of fertility, and wrongful death.

skiz knot

06-15-2004, 10:17 AM

And insurance companies love to promote med mal recovery cap legislation (i.e. recovery may not exceed $250k or $500k). Which does make sense on some level... but what if you are the victim of malpractice, and your damages exceed this level? $250k is NOT much money for someone rendered helpless, in pain, and unable to work due to medical negligence. Furthermore, the idea that these caps make malpractice insurance.

If I am not mistaken, the tort reform legislation that has been proposed puts a cap on non-economic damages, e.g. pain and suffering. If a patient had 50 million dollars in medical bills for continuing care throughout his/her life as a result of malpractice, they would still (presumably, if the insurance levels were that high) be covered. The cap of $250k protects against the frivolity of the lawsuits that ask for 39 million bucks to help ease the pain of the family that can no longer bear a child because x happened and the Doc should have known better... There would still be a way for the patient to recover expected wages for the rest of their life if he/she was unable to work because of disability or death.

Anyway, this is how I understand the malpractice caps that have been performed. Correct me if I am wrong on this.

samurai_lincoln

06-15-2004, 10:18 AM

If I am not mistaken, the tort reform legislation that has been proposed puts a cap on non-economic damages, e.g. pain and suffering. If a patient had 50 million dollars in medical bills for continuing care throughout his/her life as a result of malpractice, they would still (presumably, if the insurance levels were that high) be covered. The cap of $250k protects against the frivolity of the lawsuits that ask for 39 million bucks to help ease the pain of the family that can no longer bear a child because x happened and the Doc should have known better... There would still be a way for the patient to recover expected wages for the rest of their life if he/she was unable to work because of disability or death.

Anyway, this is how I understand the malpractice caps that have been performed. Correct me if I am wrong on this.

See above...

flighterdoc

06-15-2004, 10:31 AM

Not always. Read my post carefully:
"In Colorado, which caps both economic and noneconomic damages, malpractice payouts decreased from $39 million in 1997 to $36 million in 2001."

Colorado has a $1M total cap (econ and non-econ) which is a pretty freakin' low amount over a lifetime. See also Indiana, Louisiana, Virginia, etc. which also have total recovery caps.
http://www.issuespa.net/resources/image/caps-summary_of_state_laws.htm

Here is a link to the full Weiss study, which is well done:
http://www.weissratings.com/MedicalMalpractice.pdf

Also, if you think all non-econ damages are bogus, you either have little sense of compassion or don't completely understand the meaning of the term. Non-economic damages compensate people for injuries that are very real, like permanent disfigurement, loss of sight or a limb, loss of fertility, and wrongful death.

I agree that a million in economic damages is low. I also think that a quarter-million in non-economic damages is low. But, not having any limits is clearly a bad thing - juries giving hundreds of millions for BS is the result.

i61164

06-15-2004, 11:49 AM

Malpractice rates affect some docs more than others. I hear that OB/GYNs are hit the hardest. Just one more incentive to specialize in Botox.

BananaSplit

06-15-2004, 12:43 PM

How did the idea of malpractice insurance come about anyways? People make mistakes, even doctors. I think too many people expect doctors to be perfect; they don't understand that medicine is a PRACTICE (meaning you can never completely master it). If a firefighter fails to save a pet or a child, we don't blame them, we don't sue them. If he/she were in a burning building and went down corridor A instead corridor B (where a child was trapped), we don't have a jury sit down and decide whether he could've/should've gone down corridor B.

I understand that there are occasionally egregious and obvious violations of medical ethics and those doctors should be punished.

japhy

06-15-2004, 12:49 PM

the difference between refusing to treat lawyers and blacks, is that there are anti-discrimination laws protecting blacks that simply do not exist for lawyers. of course, it is difficult to prove that a doc refused to treat you because of your race. refusing to treat lawyers is legal but not ethical.

look in the everybody forum. there is a big thread about this.

http://forums.studentdoctor.net/showthread.php?t=127859

skiz knot

06-15-2004, 01:15 PM

I understand that there are occasionally egregious and obvious violations of medical ethics and those doctors should be punished.

Unfortunately doctors aren't sued just for the egregious and obvious violations of medical practice and ethics. The fact is that people are suing (and winning) because they didn't get the results that they wanted, regardless of whether or not it was a result of mal-practice. There are too many variables to consider in human medicine to ever guarantee that something will turn out perfect, and that a doctor will never overlook something. I agree that doctors that make major mistakes, that should not have happened under any sort of reasonable circumstances, should be punished monetarily or otherwise. But mistakes happen, things don't turn out as planned, and their is nothing that can change that. The number of medical malpractice claims and awards in the last 10 years has skyrocketted (I don't want to quote specifics, b/c I can't remember the #'s exactly, but I think they have doubled?). There is no way that you can make the claim that the # of instances of egregious violations has risen at the same rate. I would assume that the number has remained constant.

japhy

06-15-2004, 02:00 PM

skiz knot

06-15-2004, 02:18 PM

shiz,

while you may not be able to claim that medical errors have substantially increased in the last several years you cuold make the claim that patients are more aware and educated about their health. thus, they are more likely to realize if and when a mistake has been made. thus leading to more lawsuits.
You could make the claim that they are encouraged by lawyers to file a claim because there is the lure of free money. People know when they have been wronged. When you have your kidney removed when you went in for a tonsilectomy, you can guess someone f'd up.

hakksar

06-15-2004, 02:26 PM

I feel that for elective care the physician would not be violating the hippocratic oath by refusing to treat a plaintiff lawyer. They already can refuse to treat you for elective procedures (and they are not required to give a reason). The point the physicians that started this were trying to make is that lawyers that bring frivolous lawsuits drive up the cost of healthcare so that it becomes less accessible to a segment of our population. They were trying to demonstrate to the lawyers how it felt to have less access to healthcare.

I think that the problem with tort reform is the same problem there is with the entire tort system: a misunderstanding of its purpose. As I understand it, the tort system is designed to provide compensation to a party who was harmed by the negligence or malice of others and to punish the offending party to prevent it from happening again. However, the tort system is often used as a form of "lottery ticket" for those who have suffered a tragedy. It is difficult for the jury to put aside the emotion of the case and accurately assess the amount of fault of the offending party. In addition, pain and suffering and other non-economic damages are nearly impossible to assess especially in a very emotional case (ie the loss of a child). However, with the exception of capping the amount that can be recovered for damages (which becomes a problem since damages are hard to assess), I have not heard any viable options to repair the system. Ironically, I think the best way to solve it would be lawyer peer pressure. Lawyers should be ethically bound to not bring cases that are not merited just as physicians are ethically bound to not provide treatment that harms patients. There will be some bad apples but if other lawyers drummed them out of the system by reporting them to the ethics board the problem would be a lot smaller.

skiz knot

06-15-2004, 02:48 PM

good ideas.

samurai_lincoln

06-15-2004, 03:29 PM

Ironically, this appeared in yesterday's Austin American-Statesman re: the effect of the damages cap legislation in Texas. The AAS tends to overplay human interest stories (and this is a good one) in order to promote its ultra-leftist editoral slants, but this does demonstrate 1) just how expensive these cases are to try for a plaintiff's attorney, and 2) how economic damages alone do not always provide a sufficient remuneration/deterrent effect in the tort system. Not that it justifies unethical, slimy behavior, but remember that plaintiffs' attorneys take these cases on a contingency basis, fund all of the discovery, and stand to lose a bundle if the recovery is inadequate.

Many lawyers avoiding malpractice cases
One mom is told that the new limit on damages makes a trial in her son's hospital death too costly

By Claire Osborn

AMERICAN-STATESMAN STAFF

Monday, June 14, 2004

Yvonne Harrison said her son had a fever when doctors urged him to check into Seton Medical Center in 2002. Nothing else was wrong, although he had already received two liver transplants and had to be carefully monitored, his mother said.

Three days later, 18-year-old Gerard Anthony August died in the hospital of pneumonia.

After months of grieving, Harrison, a registered clinical pathologist and a paralegal, tried to hire a lawyer to file suit against Seton because she said staff didn't follow the right medical procedures. She said she contacted 92 lawyers, and all of them turned her down.

The reason, she said, was a state law that took effect in September that limits damages in medical malpractice lawsuits to $250,000 for pain and suffering. Lawyers told her the new cap made it too expensive to try her case, Harrison said.

Approved in the 2003 legislative session, the law was designed to limit the number of lawsuits against doctors, help lower malpractice insurance and in the end make health care more accessible.

Opinion is divided over how it is working. Defense attorneys say it is too early to tell, and doctors -- who lobbied heavily for the law -- are optimistic but have yet to see much relief in their malpractice premiums. One major insurance company has lowered rates by 12 percent, but others haven't followed.

"I believe that most doctors are feeling pretty good about what has happened," said Dr. Norman Chenven, the founder of Austin Regional Clinic. Fewer lawsuits means fewer doctors leaving the profession, he said.

Meanwhile, several Austin lawyers say the number of medical malpractice suits they have filed since the new law has declined significantly because they cannot afford to handle them.

"The number of people who have called me where I've not been able to help them has grown, and the stories I'm hearing are heartbreaking," Alice London said.

Statistics showing the number of medical malpractice suits filed in Travis County and statewide since the law took effect were not available.

But in Harris County, which includes Houston, only 40 medical malpractice lawsuits were filed between January and March, compared with an average of 120 filed during the same period each of the previous three years, according to the Texas Medical Association.

Started with a fever

Harrison said her son's illness began in 1993 when a doctor diagnosed the 10-year-old Pflugerville boy with autoimmune liver disease. August had his first liver transplant in 2000. His body rejected it. After his second in 2001, he was put on a strict regimen of drugs to fight another rejection, Harrison said.

Her son refused to let his medical problems sideline him, Harrison said. He was a disc jockey at parties and remained active in St. Stephens Baptist Church in Austin. He had been home-schooled, then took a telemarketing job with MCI and was so successful that he was able to buy himself a car.

August wanted to become an electrical engineer and in 1998 won a University of Texas math and science competition, his mother said.

On June 1, 2002, August walked into the Seton Medical Center on West 38th Street complaining of a fever.

The transplant service in San Antonio that had handled his case had recommended that he get a few lab tests done, Harrison said. Seton staff wasn't familiar with the way lab test results should look for a kidney transplant patient and mistakenly demanded that August admit himself to the hospital June 5, Harrison said.

She said her son didn't want to admit himself but did at the insistence of Seton doctors.

The hospital didn't have the right kind of medicine, and August had to wait so long to get it that his body began breaking down, Harrison said. When his kidneys began to fail, the staff decided to insert a tube near his collarbone to start dialysis, according to medical records that Harrison is using in her lawsuit.

Harrison said that the placement of the tube failed the first two times and that August developed severe bleeding and swelling that crushed his trachea. The staff then had to insert a breathing tube, according to medical records.

"He was conscious, and he told me he was scared," Harrison said.

Harrison said she pleaded with hospital staff to fly her son to the transplant service at University Hospital in San Antonio or to Texas Children's Hospital in Houston because they would know how to handle his case.

Three days later, her son died of pneumonia.

After he died, Harrison said she had a nervous breakdown and moved in with her sister in Lufkin.

She eventually found lawyers who agreed to help her prepare a lawsuit, although they declined to represent her. She filed a lawsuit in Austin on June 4, representing herself against Seton Medical Center and the doctors involved in her son's care.

Seton has not yet been served with the lawsuit, and its lawyers declined to comment, according to a hospital spokeswoman.

Representing herself

The lawyers she contacted, Harrison said, explained to her that her case would be too expensive to handle.

The new law set a top limit of a little less than $1.5 million for wrongful death cases, regardless of the number of defendants. Most of that was for "economic damages" such as lost future wages. But for an 18-year-old with no spouse or children, any economic damages would be small.

That left the $250,000 maximum for pain and suffering. Not enough, the lawyers said.

Bill Whitehurst, who practices at one of the major medical malpractice law firms in Austin, said the cost of taking a medical malpractice suit to court can be up to $450,000.

"It's why this $250,000 cap is so ridiculous," Whitehurst said. "The cost of experts is very high, and you can't prove cases without experts."

Jay Harvey, president of the Capital Area Trial Lawyers Association, said it cost him $3,500 to get just a preliminary analysis by an expert in a medical malpractice suit.

Harvey said he has filed only one new medical malpractice lawsuit in the eight months since the law took effect, down from about one a month before. Whitehurst said his firm has filed fewer lawsuits since September, too.

On the other side, David Davis, a defense lawyer who represents doctors and hospitals, said he has seen a 95 percent reduction in the number of cases he is handling. He's not sure if that's a long-term trend or a natural dropoff after plaintiffs lawyers rushed to file lawsuits just before Sept. 1.

Without a lawyer, Harrison now faces the prospect of going against Seton's lawyers by herself.

Harrison "won't stand a chance" in her lawsuit without a lawyer, Whitehurst said. "The people she will be going up against are highly seasoned trial lawyers, and they will bring in their own experts who will fight her tooth and nail."

Harris said that she already has an expert who is willing to testify but that she is scared about representing herself.

"If I do something wrong or if I miss a step, it's possible the court will throw my legal petition out," she said. "It's frightening, because the people who are charged with protecting us are running scared because nobody wants to challenge that new rule."

cosborn@statesman.com; 445-3871

juddson

06-15-2004, 09:00 PM

kinetic

06-15-2004, 09:01 PM

juddson

06-15-2004, 09:08 PM

Once again, lawyers show their stripes. "Too expensive"? Hey, it's just the same as when physicians came under Medicare and started getting reimbursed pennies on the dollar. Physicians get close to zero for office visits. Did they just suddenly say, "well, no soup for you since I'm not getting paid!" Nope. Because they actually believe in what they are doing. Whereas for lawyers, it's all about payday. "I'm doing this to preserve freedom and liberty and rights and to make sure the little guy gets his just day in cour --- what? I only get a few thousand dollars? Screw that. I'm out." And they wonder why everyone hates lawyers.

read the story. If it costs as much as $450,000 to bring a suit to recover little more than $250,000, it isn't a matter of greed. It is a matter of math. You are delusional if you think docs work for free or at a loss. That docs continue to take medicare is precisely because the marginal income exceeds the marginal cost. Simple as that. This is not true for many of the suits in Texas that cannot be brought.

There is no comparison here. Your view of your profession is too idealistic.

Judd

juddson

06-15-2004, 09:10 PM

kinetic

06-15-2004, 09:12 PM

juddson

06-15-2004, 09:20 PM

"As much as" means that is the maximum cost, not the average cost. And the fact that those figures are coming from a medmal lawyer is suspect as well; I'd like to see some independent figures. Of course a lawyer is going to portray it as if the law was stifling lawsuits (sorry, RIGHTS) because it is in their best interest to have the status quo continue ...right up until the system is bankrupted, at which time these leeches will move on to some other endeavor.

No, but $100,000 is very typical. Do the math. You can't risk $100,000 to get 1/3 of $250,000, particularly if the chances of winning are 15%.

You sound like a broken record. Calling attorneys "money grubbing" because they can't throw away $100,000 for a 15% chance of recovering $83,000 is akin to accusing doctors of greed because they won't embrace socialized medicine.

Judd

hakksar

06-15-2004, 09:25 PM

kinetic

06-15-2004, 09:26 PM

No, but $100,000 is very typical. Do the math. You can't risk $100,000 to get 1/3 of $250,000, particularly if the chances of winning are 15%.

You sound like a broken record. Calling attorneys "money grubbing" because they can't throw away $100,000 for a 15% chance of recovering $83,000 is akin to accusing doctors of greed because they won't embrace socialized medicine.

Judd

Let's assume for the sake of argument that your numbers are correct. You're the one who sounds like a broken record. When it comes to lawyers, you're a complete champion of action on the basis of the dollar. Fine. But when people talk about choosing or not choosing to treat lawyers (for any reason they want), you're the first in line to start talking about how doctors are "obligated" to treat lawyers. So with us, it's all about obligations and for lawyers, it's all about the pocketbook.

In addition, you're all about this 15% chance of winning. Guess what? The reason it's 15% is because right now, you guys are just suing for any and every thing with very little discrimination. Just because there's absolutely NO risk in suing. You lose? Ah, no skin off my back; I don't have to pay for the defendent's costs. Maybe if you guys started actually figuring out which cases are legitimate, your percentages would rise.

Finally, who gives a crap if the chances are 15%? What, if it's not a guaranteed payday, you won't take up the cause? Nice.

P.S. Physicians have no choice about socialized medicine. And unlike lawyers, when we get thrown into a position we dislike, we continue to work.

superdevil

06-15-2004, 09:36 PM

That docs continue to take medicare is precisely because the marginal income exceeds the marginal cost. Simple as that.
well, judd, this may be crazy, but i don't think those in the medical professional with whom i've talked would totally agree with this. the blow of loss in these cases is softened by high service premiums for you and i.

juddson

06-15-2004, 09:39 PM

I agree that lawyers working on a contingency basis need to be able to recoup the cost of the case plus a little to make money. However, the majority of contingency plaintiff attorneys are looking for a large settlement and are hoping to not even go to trial (malpractice insurance encourages this behavior because the insurance company would rather settle than risk an extremely expensive loss in court). One possible way to limit this type of behavior would be to force the party that loses a case to pay all the attorney fees of the party that wins. However, this is a risky concept because money matters in the quality of a case that one can bring (thus, a person with a legitimate case could easily lose due to extreme financial disadvantage of the individual versus the malpractice insurance and therefore it might discourage legitimate cases). I still feel that the best way to solve this problem (without starting a whole new system) would be for ethical attorneys to assert peer pressure against plaintiff attorneys who bring frivolous lawsuits and to cap non-economic damages (since pain and suffering does not equate to any dollar amount) , just make the damages high enough to be punitive (I think $250,000 qualifies as substantially punitive for 99.9% of Physicians).

The non-economic damages are not meant to be punitive. They are "compensatory". They are designed to "compensate" the victim for the intangible loss associated with the loss of limb or bodily function, or perhaps the loss of a life of a child with little or no earning potential (and therefore no "economic" compensatory damages). $250,000 for non-economic "compensatory" damages are plenty for some injuries. It is inadequate for some others. How do you defend a system which treats injuries worth $250,000 the same as injuries with $1,000,000? And how support the notion that doctors (or Republicans) are better able to "value" an injury (all are worth at most $250,000) than lay people, who frequently decide that an injury is worth much more? What is the reasoned argument behind this other than it will, no doubt, reduce the number of suits.

Judd

kinetic

06-15-2004, 09:44 PM

The non-economic damages are not meant to be punitive. They are "compensatory". They are designed to "compensate" the victim for the intangible loss associated with the loss of limb or bodily function, or perhaps the loss of a life of a child with little or no earning potential (and therefore no "economic" compensatory damages). $250,000 for non-economic "compensatory" damages are plenty for some injuries. It is inadequate for some others. How do you defend a system which treats injuries worth $250,000 the same as injuries with $1,000,000? And how support the notion that doctors (or Republicans) are better able to "value" an injury (all are worth at most $250,000) than lay people, who frequently decide that an injury is worth much more? What is the reasoned argument behind this other than it will, no doubt, reduce the number of suits.

Judd

Ha ha. Too bad, but lawyers broke the system and now they are crying about it. They are the ones who don't care about the TRUE punitive costs; their mentality is "give me as much as possible ...and then DOUBLE it!" Don't lecture US about the "real" cost of an injury because that's the LAST thing on a lawyer's mind. As usual, though, you are pretending to take the high road, bleeding in the streets because your clients are being abused, right? It has nothing to do with lawyers making less money, right? :rolleyes: And of course you would prefer lay people to make the decisions on how much to dole out -- that way, you can take advantage of jackpot juries, whose idea of logic is "hey, the hospital makes a lot of money, so they can afford this! It's time we got ours!"

juddson

06-15-2004, 09:55 PM

Let's assume for the sake of argument that your numbers are correct. You're the one who sounds like a broken record. When it comes to lawyers, you're a complete champion of action on the basis of the dollar. Fine. But when people talk about choosing or not choosing to treat lawyers (for any reason they want), you're the first in line to start talking about how doctors are "obligated" to treat lawyers. So with us, it's all about obligations and for lawyers, it's all about the pocketbook.

I never said this. I have said several times that there is no obligation to treat attorneys. Nor have I been "first in line". Moreover, you are moving the goalposts. I would be the first in line to say that you have no "moral" or "legal" obligation to treat people who cannot pay you (the emergency treatment laws notwithstanding). I don't see any reason to treat doctors differently than lawyers. The facts are these. Both professionals work because they believe in what they do (by and large) and monetary reward is secondary (neither would do what they do if they hated it even if the money were great). However, neither will work for free in the aggregate. Marginal income MUST exceed marginal cost or both lawyers AND doctors stop coming to work. As evidence of this I direct you to all those reports of doctors leaving states with high malpractice premiums (even while, I suspect, marginal income STILL exceeds marginal costs, I'm willing to bet).

In addition, you're all about this 15% chance of winning. Guess what? The reason it's 15% is because right now, you guys are just suing for any and every thing with very little discrimination. Just because there's absolutely NO risk in suing. You lose? Ah, no skin off my back; I don't have to pay for the defendent's costs. Maybe if you guys started actually figuring out which cases are legitimate, your percentages would rise.

NOPE. That's 15% chance of winning in front of jury. By then you've spent $100,000 getting there. There is enormous risk in sueing and taking it the distance. The article above disproves your point anyway. If there was "NO risk in sueing" then the caps would NOT reduce the number of suits in TX. But they have. Why? Because sueing costs money. You can't bring a suit if you don't have money.

Finally, who gives a crap if the chances are 15%? What, if it's not a guaranteed payday, you won't take up the cause? Nice.

Are you actually reading what you are writing? Seriously? Are you? No sane person risks 1$ for a 15% chance of wining 83 cents. That's a loser every time. These arguments you are making are ridiculous.

P.S. Physicians have no choice about socialized medicine. And unlike lawyers, when we get thrown into a position we dislike, we continue to work.

Not true. When doctors can no longer operate profitably, just like all other sane people, they stop coming to work. Witness OB/GYns and Nuero in FL. Tons of docs in WV. Doctors are obligated to provide medical care in emergency situations free of charge. But if this marginal costs ever exceeded marginal income, these doctors would stop coming to work. Fortunately, with all the free work they do, EM docs still pull down in the 2's.

I've said this a billion times - you need some introspection.

Judd

kinetic

06-15-2004, 10:03 PM

juddson

06-15-2004, 10:07 PM

well, judd, this may be crazy, but i don't think those in the medical professional with whom i've talked would totally agree with this. the blow of loss in these cases is softened by high service premiums for you and i.

That is what I said. In the aggregate, marginal income exceeds marginal costs. Whether Medicare, when taken in isolation, is a positive deal for docs is a seperate matter. Still, I'm betting docs are just as "rational" as everybody else, which means that they would no longer take medicare if in isolation marginal income did not exceed marginal costs. IF, in fact, marginal income did NOT exceed marginal costs, AND docs continue to participate, it must be because the system is tied to another incentive (I don't know enough about it to know what it is) - which, in that case, it is not appropriate to look at medicare in isolation.

In any event, I do not believe that docs do in fact work in the red if not otherwise required to. Here's an example: my wife's OB charged the insurance company $990 for her cerclage. They paid him $210. That's 21 cents on the dollar. Pretty freaking low. It took him 20 minutes. If we stretch that time to one hour (for prep, clean-up, etc.) he earned $210 in that hour (surgery center, nurses, CRNA and MDA all charged seperatley). That works out to $420,000 on an annualized basis for his surgery work. Not everything he does is surgery, of course, and he has overhead. Though, not everything he does is as quick and easy as a cerclage either. He probably pulls in near $300,000 a year. There's NO WAY to look at his practice in the aggregate and say he works for free even if he makes "pennies on the dollar" for things like medicare.

judd

juddson

06-15-2004, 10:11 PM

Ha ha. Too bad, but lawyers broke the system and now they are crying about it. They are the ones who don't care about the TRUE punitive costs; their mentality is "give me as much as possible ...and then DOUBLE it!" Don't lecture US about the "real" cost of an injury because that's the LAST thing on a lawyer's mind. As usual, though, you are pretending to take the high road, bleeding in the streets because your clients are being abused, right? It has nothing to do with lawyers making less money, right? :rolleyes: And of course you would prefer lay people to make the decisions on how much to dole out -- that way, you can take advantage of jackpot juries, whose idea of logic is "hey, the hospital makes a lot of money, so they can afford this! It's time we got ours!"

Now you're just flailing about wildly. I'm not lecturing you. I'm saying there is no basis to to suggest that doctors know the "value" of an injury more than a lay person does. Doctors don't feel pain differently. They don't have greater insight into what it means to lose a child. How is this "taking the high road"?

BTW, on what basis do you presume that I am looking out for the income of my "brethren". I'm going into medicine. I was never a med mal attorney to begin with. I didn't even litigate. It won't be enough for you to simply impune my motives you will actually have to address the arguments at some point.

Judd

Judd

kinetic

06-15-2004, 10:15 PM

Now you're just flailing about wildly. I'm not lecturing you. I'm saying there is no basis to to suggest that doctors know the "value" of an injury more than a lay person does. Doctors don't feel pain differently. They don't have greater insight into what it means to lose a child. How is this "taking the high road"?

BTW, on what basis do you presume that I am looking out for the income of my "brethren". I'm going into medicine. I was never a med mal attorney to begin with. I didn't even litigate. It won't be enough for you to simply impune my motives you will actually have to address the arguments at some point.

Judd

Judd

Now you're just rambling on like a senile moron. (Hey, starting off my post with a subjective insult IS fun! Thanks, Judd!) If laypeople are just as adept at interpreting how painful something is, then why do you prefer them? Hmm?

BTW, you are the one who has posted a number of times that you are a lawyer. And thanks for signing your post twice.

hakksar

06-15-2004, 10:20 PM

juddson

06-15-2004, 10:22 PM

Never said there was an obligation to treat lawyers, eh?

How about: "No legal duty. This is true." (Implying there is a moral duty to treat lawyers.)

Or:

It is legally defensible, but ethically suspect.

And as for the rest of your argument, read your own post. You prove my point. It's all dollars and cents. Which is fine. But note that when you defend lawyers, it's all "we're here to protect your liberties ...without us you'd have no rights, blah blah blah." That's my point. Hypocrisy in action.

Perhaps you will never quite get it. I have bent over backwards to explain to you that reforms such as caps and ethical rule changes are not principled and reasoned, and lead to perverse and inequitable results - and that these reforms should be rejected on those grounds. I have also said that these reforms should be rejected because they make pursuing even meritorious claims economically impossible. These are two sides of the same coin. There is no hypocracy there.

Perhaps you will be able to understand it better if I talk of doctors rather than attorneys. It's IMPORTANT, from my perspective, that we have good and adaquate medical care in the US. BUT, I reject a system that would make provision of that care economically impossible (such as capping physican salaries at $25,000 a year). According to you, this is "hypocracy in action". It's all "dollars and cents" because I think docs should not have to work for $25,000 a year (or even at a loss) but then I'm all in your face with "we need good medical care and patient access". Oh the hypocracy. :rolleyes:

judd

juddson

06-15-2004, 10:26 PM

Now you're just rambling on like a senile moron. (Hey, starting off my post with a subjective insult IS fun! Thanks, Judd!) If laypeople are just as adept at interpreting how painful something is, then why do you prefer them? Hmm?

[/quote

I have no preference for lay people. They are just as good as engineers, lawyers, doctors, scientists, whoever. My ONLY preference for a jury is that it not be made up of people who have a personal or professional interest in the outcome. fair enough?

[quote]
And thanks for signing your post twice.

:eek: proof I have the wrong end of this argument, then.

Judd

kinetic

06-15-2004, 10:26 PM

kinetic

06-15-2004, 10:28 PM

:eek: proof I have the wrong end of this argument, then.

Judd

When did I say that had anything to do with your argument? I was just making fun of you for a completely isolated incident. Does everything have to revolve around the topic of the thread? :laugh:

flighterdoc

06-15-2004, 10:29 PM

No, you're the one who still doesn't get it. The system was broken by lawyers. The solution may not be perfect, but it was necessitated by LAWYERS. Lawyers didn't care at all about what was "fair compensation" in the past ...they just wanted to bleed everyone dry. Now all of a sudden, we're talking about "what is fair for the patient" and "how this will affect the patient". Riiiiiight.

Not only that, but the so-called unfair reforms (like caps) are passed by the legislatures, which are filled with and lobbied heavily with lawyers. Asking lawyers to "fix" anything is asking them to take a bad situation and make it worse.

kinetic

06-15-2004, 10:30 PM

I have no preference for lay people. They are just as good as engineers, lawyers, doctors, scientists, whoever. My ONLY preference for a jury is that it not be made up of people who have a personal or professional interest in the outcome. fair enough?

In theory, yes. In practice, no. That's the kind of jury we have today. Technically, they have no personal or professional interest in the awards. But they hand out cash like it grows on trees because of their attitudes towards physicians, who are percieved to be "rich like Nazis" (to quote Homer Simpson) and can take any financial hit (class envy/warfare, anyone?).

superdevil

06-15-2004, 10:32 PM

That is what I said. In the aggregate, marginal income exceeds marginal costs.
my bad, judd. i read too fast and mistook that statement as medicare payments *themselves* exceeding associated costs. oh well.

juddson

06-15-2004, 10:33 PM

I know they were meant to be compensatory (as well as punitive). However, as I stated it is impossible to adequately compensate someone for death, loss of limb, pain, etc. since money will never bring any of these things back. I think it is wrong to compensate an intangible loss with a tangible economic loss (maybe the offending parties guilt is so extreme that they are suffering more the person harmed). Compensating intangible losses turns tragedy into a lottery ticket. Therefore, the only fair reason to have non-economic damages is to punish the offending party so that they do not offend again.

No, you are right about this. I'm guessing that no matter HOW MUCH money somebody gets for the loss of a part or function, they would gladly give it back in exchange for its restoration. That does not mean that the only compensation we know how to give is not ethically due.

edit: BTW, I noticed your Republican argument in your response to me . . . I happen to be a proud liberal . . . I just think our tort system is broke.

No, not directed at you. This issue regarding protecting doctors from frivilous suits is NOT a republican thing. The sad part is that this is supported by Republicans because of its other often overlooked effects, which are to protect big pharma, medical device manufacturers and large healthcare organizations. For instance, I recall a large pharma company (can't remember who) has just settled with a class and the FDA over some supressed medical data regarding one of its products (a weight loss drug, if I recall). Under these caps this company would NEVER have settled. It did 6 billion in revenue last year (or was that quarter?). What's $250,000?

Judd

stinkycheese

06-15-2004, 10:33 PM

Unfortunately doctors aren't sued just for the egregious and obvious violations of medical practice and ethics. The fact is that people are suing (and winning) because they didn't get the results that they wanted, regardless of whether or not it was a result of mal-practice.

A doctor I know is an excellent, well-respected opthalmologist who is 20 years PG.

15 years ago, about five years into his private clinical practice, he had an urgent call from parents of an infant who said that their GP had referred them to the opthalmologist because the baby had some sort of glaucoma. At 5:00pm that night, they rushed into his office. He told them that he could not perform the necessary treatments right then, but that he would do so immediately the next morning. The next day, he successfully performed treatment and followed up with this patient for several years. The child developed normal vision, but did need glasses (as many people do!)

When the child turned 14, the parents sued this opthalmologist for malpractice, stating that if he had treated the child when they brought him (unannounced) to his office, the child wouldn't need glasses today.

They won a $12 million dollar settlement and put this physician out of practice until he won an appeal.

juddson

06-15-2004, 10:36 PM

Lawyers didn't care at all about what was "fair compensation" in the past ...they just wanted to bleed everyone dry. Now all of a sudden, we're talking about "what is fair for the patient" and "how this will affect the patient". Riiiiiight.

You have no basis to make this claim. Lawyers are just like everybody else.

That's like me saying that doctors in the past only cared about money. But now that socialized medicine is a possibility, it's all about the "best medical care, blah blah blah. "Riiiiiiiight."

Both arguments are stupid and have no basis on fact.

Judd

juddson

06-15-2004, 10:39 PM

In theory, yes. In practice, no. That's the kind of jury we have today. Technically, they have no personal or professional interest in the awards. But they hand out cash like it grows on trees because of their attitudes towards physicians, who are percieved to be "rich like Nazis" (to quote Homer Simpson) and can take any financial hit (class envy/warfare, anyone?).

This is not supported in fact. I think doctors are JUST as sympathetic to patients as lay people are. Why wouldn't they be?

Judd

kinetic

06-15-2004, 10:40 PM

You have no basis to make this claim. Lawyers are just like everybody else.

I don't? Wow! Amazing! I guess everyone just decided to get together one day and start badmouthing lawyers because we drew their name out of a hat. "Lawyers are just like everyone else"? Now THERE'S a claim without basis.

kinetic

06-15-2004, 10:41 PM

This is not supported in fact. I think doctors are JUST as sympathetic to patients as lay people are. Why wouldn't they be?

Judd

We're talking about jury awards. Your attempt at deliberate misinterpretation of my statement is great.

hakksar

06-15-2004, 10:42 PM

juddson

06-15-2004, 10:43 PM

my bad, judd. i read too fast and mistook that statement as medicare payments *themselves* exceeding associated costs. oh well.

yes, that was the point I made. But I am willing to go one step farther, which is that docs would NOT take medicare if IN FACT margin costs exceeded marginal income when considering medicare UNLESS there was some other incentive to take medicare (or disincentive to give it up). doctors are rational economic actors like everybody else. I simply refuse to accept the notion that doctors have some special sense of altruism that compells them to work at an economic loss. As evidence of this I point to those docs who IN FACT do stop coming to work in so-called "crisis" states.

doctors are like everybody else. in the aggregate they don't want to work for free if they don't have to.

Judd

juddson

06-15-2004, 10:47 PM

A doctor I know is an excellent, well-respected opthalmologist who is 20 years PG.

15 years ago, about five years into his private clinical practice, he had an urgent call from parents of an infant who said that their GP had referred them to the opthalmologist because the baby had some sort of glaucoma. At 5:00pm that night, they rushed into his office. He told them that he could not perform the necessary treatments right then, but that he would do so immediately the next morning. The next day, he successfully performed treatment and followed up with this patient for several years. The child developed normal vision, but did need glasses (as many people do!)

When the child turned 14, the parents sued this opthalmologist for malpractice, stating that if he had treated the child when they brought him (unannounced) to his office, the child wouldn't need glasses today.

They won a $12 million dollar settlement and put this physician out of practice until he won an appeal.

that's incredible.

Judd

juddson

06-15-2004, 10:50 PM

I don't? Wow! Amazing! I guess everyone just decided to get together one day and start badmouthing lawyers because we drew their name out of a hat. "Lawyers are just like everyone else"? Now THERE'S a claim without basis.

Yes, it is unfortunate that people have felt this way about attorneys for a long time. It used to be acceptable to suggest Jews were cheap as well. Thankfully, it is no longer acceptable to make one of those remarks.

Judd

juddson

06-15-2004, 10:52 PM

We're talking about jury awards. Your attempt at deliberate misinterpretation of my statement is great.

Pardon? I was talking about jury awards. Why would a juror doctor be less sympathetic to a patient than a lay juror? How have I missrepresented you?

Judd

kinetic

06-15-2004, 10:52 PM

Yes, it is unfortunate that people have felt this way about attorneys for a long time. It used to be acceptable to suggest Jews were cheap as well. Thankfully, it is no longer acceptable to make one of those remarks.

Judd

Woooooo! Nice! Associating ripping on lawyers with anti-Semitism! Me likey. It's ALMOST like the Holocaust, but not quite. This is getting juicy. Now, talk about how capping lawsuits is like "slavery."

superdevil

06-15-2004, 10:52 PM

I simply refuse to accept the notion that doctors have some special sense of altruism that compells them to work at an economic loss.
when this occurs (and, episodically, not in aggregate, it does) i don't even think the doctors themselves would cite altruism. maybe feelings of guilt or a fear of people taking a moral highground against them for trying to make a business decision? i'm no psychotherapist, though.

carry on with your thread, fellas. :thumbup:
sd

juddson

06-15-2004, 10:57 PM

I agree that $250,000 is not adequate compensation for a death (but neither is $10 million) . . . I do feel that there is a punitive function that has value. I also agree that $250,000 is not punitive for big pharma etc. However, for most physicians it is more than punitive. I would propose non-economic caps that are graduated with the net worth of the offending party, but that would only encourage lawsuits against wealthy parties. To prevent this I would have a graduated non-economic cap but allow only a limited amount to go to the plaintiff, any amount awarded over this amount would go to an oversight agency (ie FDA for Pharm, State Medical Board for Physicians, etc). That would have the effect of punishing the offending party and increasing oversight of the industry while at the same time preventing frivolous lawsuits because there would be no potential million dollar payoff for just bringing the suit.

I think punishment is only appropriate for excessive culpability, such as malice or recklessness or perhaps gross negligence. Most malpractice is simple negligence - an unintentional deviation (for whatever reason) from what the standard of care. Ie, an honest mistake.

"honest mistakes" get up the feathers of many people here because, after all, everybody makes honest mistakes. But I submit that "compensation" is still due. For instance, failing to stop at a red light (assuming no dui, reckless driving, etc.) because you "didn't see it" is an "honest mistake". But here few would argue that the offending party should not have to compensate the injured driver for this "honest mistake". right?

BTW, this debate is SOOOOO much more productive than the stupid back and forth I'm having with Kinetic over who loves money more.

Judd

juddson

06-15-2004, 10:59 PM

Woooooo! Nice! Associating ripping on lawyers with anti-Semitism! Me likey. It's ALMOST like the Holocaust, but not quite. This is getting juicy. Now, talk about how capping lawsuits is like "slavery."

NO. It to suggest that long held prejudices can have no basis in fact. But you knew that was my point, didn't you.

Lawyers are hardly oppressed. In fact, I'd suggest only one other professional group is less oppressed.

Judd

juddson

06-15-2004, 11:00 PM

when this occurs (and, episodically, not in aggregate, it does) i don't even think the doctors themselves would cite altruism. maybe feelings of guilt or a fear of people taking a moral highground against them for trying to make a business decision? i'm no psychotherapist, though.

carry on with your thread, fellas. :thumbup:
sd

agree with this 100%.

Judd

samurai_lincoln

06-15-2004, 11:13 PM

I think punishment is only appropriate for excessive culpability, such as malice or recklessness or perhaps gross negligence. Most malpractice is simple negligence - an unintentional deviation (for whatever reason) from what the standard of care. Ie, an honest mistake.

"honest mistakes" get up the feathers of many people here because, after all, everybody makes honest mistakes. But I submit that "compensation" is still due. For instance, failing to stop at a red light (assuming no dui, reckless driving, etc.) because you "didn't see it" is an "honest mistake". But here few would argue that the offending party should not have to compensate the injured driver for this "honest mistake". right?

BTW, this debate is SOOOOO much more productive than the stupid back and forth I'm having with Kinetic over who loves money more.

Judd

Whoa, this thread took off in a hurry! :) I think Judd makes an important point here. This circumstances he describes above are in fact the current state of affairs regarding punitive damages. These jackpot punitive damage awards everyone fears (or craves, depending on your point of view) are not the norm for a garden variety screwup. Punitives may only be awarded in the case of gross negligence or worse, to include intentional harm or recklessness.

Alright, I have no brain cells active right now, time for bed.

Gleevec

06-15-2004, 11:38 PM

Yes, it is unfortunate that people have felt this way about attorneys for a long time. It used to be acceptable to suggest Jews were cheap as well. Thankfully, it is no longer acceptable to make one of those remarks.

Judd

LOL, what's the name of that rule where as soon as someone mentions World War II, The Holocaust, Hitler, Nazis, etc, they automatically forfeit an argument on an internet thread?

Gleevec

06-15-2004, 11:43 PM

While I was working out I saw on the CNN news ticker something along the lines of:

"Man diagnosed with anxiety the <day of> murdering wife and child sues hospital for $10 Million"

Yup, because we all know his doctors DIRECTLY CAUSED the murderer to kill his family.

I put "day of" in brackets because it was either the day of or day after or day before or something. I dont know about you, but most people with anxiety don't go murdering their families.

I guess there is no such thing as personal responsibility. Maybe everyone who gets rejected from Harvard Med should go sue their Ob/Gyn for malpractice :rolleyes: :rolleyes: :rolleyes:

The sad thing is, I bet there are tons of lawyer scum out there ready to take up such a case.

samurai_lincoln

06-15-2004, 11:55 PM

Gleevec

06-16-2004, 12:55 AM

Hmmm... are you sure you went to the gym or was it the bar? ;) I ordinarily give your posts an automatic certain level of respect, but this is such a complete non sequitur with regard to the subject at hand that I have to wonder about your current blood alcohol level.

It was the gym =)

I tried finding the link on cnn.com but didnt have any luck. Ill keep looking though, I know its hard to believe if you dont have proof (and I actually had to do a double take myself). Hopefully some other SDNer saw this and might know whats up.

Also, my post wasnt directly related to the main subject, its just another example of one of what I believe to be a completely frivolous lawsuit.

kinetic

06-16-2004, 05:34 AM

...without whom all this would not be possible! Honorable mention to the "reasonable" juries who OK'd the awards!

In 1994, a New Mexico jury awarded $2.9 million U.S. in damages to 81-year-old Stella Liebeck who suffered third-degree burns to her legs, groin and buttocks after spilling a cup of McDonald's coffee on herself.

This case inspired an annual award - The "Stella" Award - for the most frivolous lawsuit in the U.S. The ones listed below are clear candidates. All these cases are verging on the outright ridiculous and yet with the right attorney you could win anything!

1. January 2000: Kathleen Robertson of Austin Texas was awarded $780,000 by a jury of her peers after breaking her ankle tripping over a toddler who was running amok inside a furniture store. The owners of the store were understandably surprised at the verdict, considering the misbehaving tyke was Ms. Robertson's son.

2. June 1998: A 19 year old, Carl Truman of Los Angeles won $74,000 and medical expenses when his neighbour ran over his hand with a Honda Accord. Mr. Truman apparently didn't notice there was someone at the wheel of the car, when he was trying to steal his neighbours hubcap.

3. October 1998: A Terrence Dickson of Bristol Pennsylvania was exiting a house he finished robbing by way of the garage. He was not able to get the garage door to go up, because the automatic door opener was malfunctioning. He couldn't re-enter the house because the door connecting the house and garage locked when he pulled it shut. The family was on vacation. Mr. Dickson found himself locked in the garage for eight days. He subsisted on a case of Pepsi he found, and a large bag of dry dog food. Mr. Dickson sued the homeowner's insurance claiming the situation caused him undue mental anguish. The jury agreed to the tune of half a million dollars.

4. October 1999: Jerry Williams of Little Rock Arkansas was awarded $14,500 and medical expenses after being bitten on the buttocks by his next door neighbour's beagle. The beagle was on a chain in it's owner's fenced-in yard, as was Mr. Williams. The award was less than sought because the jury felt the dog may have been provoked by Mr. Williams who, at the time, was shooting it repeatedly with a pellet gun.

5. May 2000: A Philadelphia restaurant was ordered to pay Amber Carson of Lancaster, Pennsylvania $113,500 after she slipped on soft drink and broke her coccyx. The beverage was on the floor because Ms. Carson threw it at her boyfriend 30 seconds earlier during an argument.

6. December 1997: Kara Walton of Claymont, Delaware successfully sued the owner of a night club in a neighbouring city when she fell from the bathroom window to the floor and knocked out her two front teeth. This occurred while Ms.Walton was trying to sneak through the window in the ladies room to avoid paying the $3.50 cover charge. She was awarded $12,000 and dental expenses.

7. Jan 2002. A man was stopped by police in Vermont. After running his name, it came back that there were warrants for his arrest from Florida. Before the police could arrest him, he fled into a nearby forest (in the middle of winter). The police searched for him, but were unable to find him. Three days later, the suspect turns himself in to police and was taken to the hospital with frostbite. He ended up having several fingers and toes amputated. He is now suing the police. Why? The police didn't look for him hard enough! He stated in an interview, "If they had searched harder, they would've found me." He's accusing the police of dereliction of duty leading to his loss of limbs.

SoulRFlare

06-16-2004, 06:18 AM

here's a nice rambling post to chew on:

One point that keeps coming up in my mind is the phrase "a jury of peers." It seems to me, particularly in the more complex medical cases, that a physician is entitled to a well informed and knowledgeable jury--ie made up of other physicians. Before anyone brings up arbitration, keep in mind that I am considering a system identical to the present, with the exception of the jury. (maybe that is what arbitration boils down to, i don't know...)

Now this introduces its own set of problems: the possibility of sympathy/professional courtesy/deference, as well as the fact that defendant is likely to know at least some of the physicians on the jury. But I would argue that this could be the case with any jury. Perhaps the biggest stumbling block to this system, however would be public perception. Regardless of the merits of a given case, if found in favor of the defendant, some ppl would immediately suspect cronyism.

I'm a bit baffled as to why the pain and suffering cap is preventing lawyers from being compensated. For example, if a person wins a 2.5 million dollar lawsuit, which includes the $250,000 pain and suffering award, whats to stop the attorney from taking his or her cut from the economic damages portion? (legal fees, after all, to seem to be an economic "loss" stemming directly from the injury.)

Aside from the potential economic gain, it seems that the prodigious number of lawsuits stem from public perception/envy/fear of the medical profession. Ppl don't like to feel helpless, and being fed into the medical system can be one of the most disempowering experiences one can face. In such a situation, rational or not, we might fantasize that the healthcare providers are omnipotent in order to allay the fear/helplessness. When something goes wrong then, the patient, in leveling a suit could be saying "how dare you have the power to render me helpless, and then allow me to lose X, Y, or Z!"

I think too, a doctor's attitude toward their patients goes a long way in determining whether they are more or less likely to be sued. Lets say that two doctors perform the same procedure, on identical patients, and make the same mistakes under indentical conditions. Furthermore, the mistake is unavoidable--no negligence involved. One doctor routinely exudes arrogance and condescension, while the other routinely involves patients in their own treatment, relates well to the patients, and shows the patients that he/she genuinely cares. I'd bet that the first doctor would be sued 9 times out of 10, and is much more likely to lose the suit. The second may still be sued, but I think that honest folks would be much less likely to sue the second over the first (as we all know, good caring doctors are still sued by unscrupulous ppl looking for a quick buck). Furthermore, the jury may be more hesitant to level stiff penalties against a physician whom they like (assuming the physician is a sympathetic witness).

i61164

06-16-2004, 07:29 AM

i61164

06-16-2004, 07:31 AM

Did you see that episode of Seinfeld where Elaine get blackballed by the doctors? She does something to piss one of them off and he writes a note in her chart. From then on, every doctor that sees the note refuses to treat her.

This is the answer!

Here's how the plan will work on a global scale. I will start a website called www.blackballed.com. On the site I will maintain a list of lawyers that bring "frivolous" malpractice suits. If it's a legitimate suit, they will not be blackballed. Doctors will pay me a small fee to access my site where they can check to make sure that their patients are not blackballed.

I think that this will be a great deterrent to frivolous malpractice suits and as a side benefit, I will get rich.

Everybody wins (except the scumbags that deserve to be blackballed)!!!

Oops. I guess that URL is already taken. Anybody have a better name?

IcedCube

06-16-2004, 07:34 AM

no doctor is refusing to treat trial lawyers and their families. the proposal was brought up in jest and was only meant to shine light on the issue of ridiculous malpractice insurance feez

juddson

06-16-2004, 08:12 AM

LOL, what's the name of that rule where as soon as someone mentions World War II, The Holocaust, Hitler, Nazis, etc, they automatically forfeit an argument on an internet thread?

read my response to Kinetic. I'm not comparing lawyers to jews. I'm saying that stupid long held opinions about anybody are often not based in fact. It matters not who holds them or for how long. They are stupid.

Judd

juddson

06-16-2004, 08:15 AM

juddson

06-16-2004, 08:19 AM

I'm a bit baffled as to why the pain and suffering cap is preventing lawyers from being compensated. For example, if a person wins a 2.5 million dollar lawsuit, which includes the $250,000 pain and suffering award, whats to stop the attorney from taking his or her cut from the economic damages portion? (legal fees, after all, to seem to be an economic "loss" stemming directly from the injury.)

).

The lawyer CAN take his 1/3 from the whole award. The problem is that the economic portion may be small or nothing (for instance, th death of a minor has very few economic compensatory damages because he or she did not work). This leaves only non-economic damages (which can be very real and visceral, of course). The case in TX is one such case. Moreover, an elderly patient, who is at the end of his or her working life may also have virtually nothing in the way of "economic" damages. But a life cut short by 30 year can certainly generate non-economic damages. When they are capped at $250,000, not only is the patient not adaquately compensated (if the injury is great enough) but the economic realities of the situation are that no lawyer could even afford to bring the case on her behalf.

Judd

juddson

06-16-2004, 08:23 AM

Did you see that episode of Seinfeld where Elaine get blackballed by the doctors? She does something to piss one of them off and he writes a note in her chart. From then on, every doctor that sees the note refuses to treat her.

This is the answer!

Here's how the plan will work on a global scale. I will start a website called www.blackballed.com. On the site I will maintain a list of lawyers that bring "frivolous" malpractice suits. If it's a legitimate suit, they will not be blackballed. Doctors will pay me a small fee to access my site where they can check to make sure that their patients are not blackballed.

I think that this will be a great deterrent to frivolous malpractice suits and as a side benefit, I will get rich.

Everybody wins (except the scumbags that deserve to be blackballed)!!!

let's go with this.

Who determines whether a suit was frivolous?

How is that determination made? Is a jury winner a good suit? Are all jury losers frivolous suits?

Suppose a case is settled (the vast majority are) - are these good suits or frivolous ones?

Assuming you can nail down what that means, suppose a lawyer filed four mertorious suits last year and two "frivolous" ones. Is he blacklisted?

Judd

i61164

06-16-2004, 08:31 AM

Being blackballed will be a very serious punishment, so we must take great care to make sure that only the truly deserving receive it. Something along the lines of "innocent until proven guilty" would be appropriate. Maybe we can reach a general consensus of what should be considered "abuse" of the legal system. Many details to work out...

exgatr

06-16-2004, 08:35 AM

i61164

06-16-2004, 08:45 AM

The whole controversy about malpractice caps vs. low lawyer compensation can be resolved easily.

Malpractice lawyers should charge an hourly rate, just like all other lawyers. Families with clear-cut malpractice cases can then pay them from their winnings, and families trying to sue frivilously won't pony up the dough.

But who will pay the 100K+ for the expert witnesses and other legal expenses? If the lawyers pay, their hourly rate will have to be pretty high. If the plaintiff pays, he may not be able to afford it, even if he has a legitimate case (I assume that these expenses need to be paid before the plantiff receives any winnings).

japhy

06-16-2004, 10:02 AM

doctors are in fact refusing to treat lawyers, their families, even state legislators families. totally absurd!

below are excerps from this link.
http://www.sltrib.com/2004/Jun/06162004/business/175767.asp

Doctors blame lawyers as costs soar

By Don Babwin
The Associated Press

"If somebody takes a position that is very deleterious to your welfare, you have a right not to do business with him," said Clinton "Rick" Miller, a neurosurgeon in Portsmouth, N.H. Miller did just that, telling Tim Coughlin, president of the state's trial lawyers association, that he would not treat him for elective surgery because he lobbied against limits on malpractice lawsuits.

While Miller said he would have no problem treating Coughlin's family, Hawk would. He dropped a patient when he found out her husband was a prominent local trial attorney.
"I don't think it violates the Hippocratic oath," he said.
Nor, apparently did Michael Kanosky, a plastic surgeon in Mississippi. Just last week it was reported that Kanosky refused to treat the daughter of a state lawmaker who opposed limits in damage lawsuits against physicians in the state.
"He asked me who I worked for and then asked me who my father was," Kimberly Banks told The Associated Press. "I told him [State Rep.] Earle Banks. He told me, 'I can't see you because your father is against tort reform.' "

flighterdoc

06-16-2004, 10:07 AM

But who will pay the 100K+ for the expert witnesses and other legal expenses? If the lawyers pay, their hourly rate will have to be pretty high. If the plaintiff pays, he may not be able to afford it, even if he has a legitimate case (I assume that these expenses need to be paid before the plantiff receives any winnings).

And why should the defendent have to pay for successfully defending a suit? A doctor looses, even when they win - loss of income in the time spent in the suit, damage to their reputation, increased insurance premiums, pain and suffering for the stress of the trial, etc. It makes no matter the justification for the suit, the costs are still there.

The only ones who ALWAYS make out (no matter which position they take) are the lawyers.

flighterdoc

06-16-2004, 10:23 AM

let's go with this.

Who determines whether a suit was frivolous?

How is that determination made? Is a jury winner a good suit? Are all jury losers frivolous suits?

Suppose a case is settled (the vast majority are) - are these good suits or frivolous ones?

Assuming you can nail down what that means, suppose a lawyer filed four mertorious suits last year and two "frivolous" ones. Is he blacklisted?

Judd

How is the determination made now? A lawyer has the $15 or whatever to file the papers at the court, and a judge (who lacks any knowledge pertinent to the case) decides it has merit?

How about mandatory, binding arbitration, with the arbitrators actually qualified to judge - you know, physicians in the pertinent specialties? Of course, that would mean that lawyers wouldn't be able to get the 1/3 plus expenses.

Or, if the lawyer looses, he's on the hook for not only his time, but his expenses as well? The frivolous suits won't go anywhere, the realistic ones will.

BTW, the "expertness" of the expert witnesses needs to be addressed, as well. Professional witnesses (ie people with MD titles who's practice consists soley of testifying at $1k+ per day, plus expenses) shouldn't be allowed to testify as to the competence of a physician, or the appropriateness of the treatment provided. Lawyers can find a physician that will testify to almost anything, the back pages of the American Lawyer (the ABA magazine) had dozens of ads last time I looked at one.

I even used to be an expert witness in certain types of aircraft crash lawsuits. I only charged $400/day (it was a long time ago), but my qualifications included having a degree in astro engineering from a pretty good school, 3000+ hours flying military aircraft, more than 1000 hours in the particular make and model of aircraft involved in the suits, a flight instructor who taught the factory qualification course for the particular aircraft, and working as a production test pilot for the manufacturer. BTW, I was NEVER asked to be a witness for the plaintiff, always the defense (the manufacturers).

Judges need to be far more critical in accepting the bona fides of anyone offered (by either side) as an expert, including their expertise in the field (not in testifying about the field), their associations with groups that might have a particular agenda (for example the Lancet child vaccination/Autism articlek, written by a "qualified" expert with an ax to grind), and the judges should have some degree of knowledge in basic science - oh, but if they knew anything about science, they'd be doctors: Never mind.

hakksar

06-16-2004, 10:49 AM

I think punishment is only appropriate for excessive culpability, such as malice or recklessness or perhaps gross negligence. Most malpractice is simple negligence - an unintentional deviation (for whatever reason) from what the standard of care. Ie, an honest mistake.

"honest mistakes" get up the feathers of many people here because, after all, everybody makes honest mistakes. But I submit that "compensation" is still due. For instance, failing to stop at a red light (assuming no dui, reckless driving, etc.) because you "didn't see it" is an "honest mistake". But here few would argue that the offending party should not have to compensate the injured driver for this "honest mistake". right?

I agree the offending person should compensate for economic damages for honest mistakes. However, compensating non-economic damages for honest mistakes is unfair. Money does not do anything to eliminate or even mitigate intangible losses and therefore it only functions as a means to get rich quick out of tragedy and to further punish the offending party (who already will be feeling extreme guilt if it just was an honest mistake that caused bodily injury or death). I think it is not only not ethically justified to compensate intangible losses with money but even ethically wrong to compensate these losses with money because we do not want people to profit from tragedy.

juddson

06-16-2004, 11:32 AM

The only ones who ALWAYS make out (no matter which position they take) are the lawyers.

huh??!!

The lawyer loses his investment in the case if he loses the case. How is it that he "ALWAYS" wins no matter what position he takes. Step back a minute and look at what you are saying.

judd

flighterdoc

06-16-2004, 11:47 AM

huh??!!

The lawyer loses his investment in the case if he loses the case. How is it that he "ALWAYS" wins no matter what position he takes. Step back a minute and look at what you are saying.

judd

So, a lawyer looses a few hours of billables on a BS case. They also have the potential to make millions for the same few hours. And more than a few "contingency" agreements (at least in California) are expenses plus contingency - there are cases where after winning a suit, the plaintiffs not only don't get ANY money, they owe their lawyers more.

The physician on the other hand looses not only his income opportunity, he has the other economic and non-economic losses I addressed.

samurai_lincoln

06-16-2004, 12:14 PM

Flighterdoc, I have a beef or two with the issues you bring up regarding expert witnesses.

BTW, the "expertness" of the expert witnesses needs to be addressed, as well. Professional witnesses (ie people with MD titles who's practice consists soley of testifying at $1k+ per day, plus expenses) shouldn't be allowed to testify as to the competence of a physician, or the appropriateness of the treatment provided. Lawyers can find a physician that will testify to almost anything, the back pages of the American Lawyer (the ABA magazine) had dozens of ads last time I looked at one.

The "expertness" of such witnesses has indeed been addressed, in a series of controversial U.S. Supreme Court cases. See Daubert v. Merrell Dow Pharmaceuticals, Inc., General Electric v. Joiner, and Kumho Tire Co., Ltd. v. Carmichael and their progeny. Essentially, the test as to whether an expert's theories are admissible boils down to the following five part test:

1. Can the theory or technique be tested or has it been tested?
2. Has the theory or technique been subject to peer review and publication?
3. Is there a known or potential rate of error?
4. Is the technique maintained by standards and controls?
5. Has the theory been generally accepted?

The cases have substantially raised the bar for difficulty of admitting expert testimony, to the consternation of many plaintiffs' attorneys. I would think that someone who has previously worked as an expert would be aware of this situation. Speaking of which...

I even used to be an expert witness in certain types of aircraft crash lawsuits. I only charged $400/day (it was a long time ago), but my qualifications included having a degree in astro engineering from a pretty good school, 3000+ hours flying military aircraft, more than 1000 hours in the particular make and model of aircraft involved in the suits, a flight instructor who taught the factory qualification course for the particular aircraft, and working as a production test pilot for the manufacturer. BTW, I was NEVER asked to be a witness for the plaintiff, always the defense (the manufacturers).

Judges need to be far more critical in accepting the bona fides of anyone offered (by either side) as an expert, including their expertise in the field (not in testifying about the field), their associations with groups that might have a particular agenda (for example the Lancet child vaccination/Autism articlek, written by a "qualified" expert with an ax to grind), and the judges should have some degree of knowledge in basic science - oh, but if they knew anything about science, they'd be doctors: Never mind.

OK, now we can see where some of your anti-plaintiff rhetoric is coming from. Of course anyone with a dog in the hunt (or at least formerly in the hunt) is going to have some bias in addressing these issues. As for your point that plaintiffs never hired you as an expert... well, duh, you were working as a production test pilot for a manufacturer. Unless you were completely willing to become a pariah to your employer (not likely), no plaintiff would even think of approaching you to serve as an expert.

flighterdoc

06-16-2004, 12:26 PM

Flighterdoc, I have a beef or two with the issues you bring up regarding expert witnesses.

The "expertness" of such witnesses has indeed been addressed, in a series of controversial U.S. Supreme Court cases. See Daubert v. Merrell Dow Pharmaceuticals, Inc., General Electric v. Joiner, and Kumho Tire Co., Ltd. v. Carmichael and their progeny. Essentially, the test as to whether an expert's theories are admissible boils down to the following five part test:

1. Can the theory or technique be tested or has it been tested?
2. Has the theory or technique been subject to peer review and publication?
3. Is there a known or potential rate of error?
4. Is the technique maintained by standards and controls?
5. Has the theory been generally accepted?

The cases have substantially raised the bar for difficulty of admitting expert testimony, to the consternation of many plaintiffs' attorneys. I would think that someone who has previously worked as an expert would be aware of this situation. Speaking of which...

OK, now we can see where some of your anti-plaintiff rhetoric is coming from. Of course anyone with a dog in the hunt (or at least formerly in the hunt) is going to have some bias in addressing these issues. As for your point that plaintiffs never hired you as an expert... well, duh, you were working as a production test pilot for a manufacturer. Unless you were completely willing to become a pariah to your employer (not likely), no plaintiff would even think of approaching you to serve as an expert.

I was never asked after I ceased working for the manufacturer (they temporarily went out of business, was purchased by another manufacturer, and the production was moved to Florida). Also, I didn't have much involvement with the manufacturer, it was a part time job while I was on active duty in the AF.

But, my testimony (for ancillary manufacturers who were sued, like fuel pump, instrument and hose clamp manufacturers) invariably was the same, and at least aguably the truth - the airplane was safe, every airplane has idiocyncracies, the particular idiocyncracies were explained to the pilots and they ignored them.

But, I have a dog from another fight - I was sued by a patient I treated when I was a paramedic. Not for anything I did wrong, but for things that weren't possible to do. It was a wilderness river rescue, and I was sued along with everyone else involved including the doctors, hospital, school district (the patient was 16 and ditched school that day), the highway patrol, the agency I worked for, and dozens of others. Fortunately I had documented everything I did as I did it (a very, very good rule to follow) and I could show the pt was already seriously injured before I got to him.

Imagine that - I go and risk my life, and get sued for it. It worked out well in the end (it was part of my motivation for joining the Air Force), but it also meant that I couldn't get a job as a paramedic anywhere else - I had a pending lawsuit against me for years and years. I couldn't get my own malpractice insurance, and at the time med school applications specifically asked if you had ever been accused of anything like malpractice.

So, no, I don't think much of the plaintiffs bar. And working for attorneys didn't help. I had a brother in law (a trial attorney, and really a nice guy) that he never took a case that he didn't think had a good basis in law, and I believe him. However, there are lots of attorneys who lack his character, and there are too many gray areas that let scum slide.

g3pro

06-16-2004, 03:18 PM

samurai_lincoln

06-16-2004, 03:26 PM

The idea of making court cases more "costly" to lawyers to make it not worth pursuing the case as they have done in the past is essential to getting liability insurance problems out of the way. If a lawyer needs to hire several "expert" witnesses to help him grandstand a trial to punish an "innocent" lawyer, and he can't afford those experts now, then good riddance! Gross malpractice cases are easily won without a cadre of expert witnesses. The problem for lawyers is when they need to pull out all the stops to do everything possible to punish physicians who "don't do everything they need to do" or whatever.

Oh, and STFU, Judd.

I'm sure you know this through all your vast years of experience as a trial attorney :rolleyes: You conveniently overlook the fact that most defendants have a huge bankroll of resources, and are paying their white shoe law firms by the hour, who are in turn enticed to rack up fees and drown the plaintiff in paperwork. You think a huge HMO or hospital will think twice about trotting out an army of expert witnesses? How do you expect the plaintiff to counter this evidence... by putting em's mother on the stand?

beambright

06-16-2004, 03:39 PM

Doctors have the right to refuse to treat anybody they want to refuse to
treat....just like a lawyer doesn't have to take on cases they don't want to
take....the lawyers are like a bunch of vultures and deserve to see that
their frivilous lawsuits have not only made doctors wary of taking them as
patients but has caused many good doctors to retire early....there is going
to be a huge shortage of doctors in the next few years....especially general
surgeons....they train for 5 years post med-school but get poorly paid but
have huge liability.....when someone needs their gallbladder or gunshot wound
fixed, there will be a shortage of available surgeons....it is already happening.
So....in answer, I don't think a lawyer would be denied emergency treatment
but for elective procedures, they can be turned down by any private physician for any reason.

juddson

06-16-2004, 05:16 PM

So, a lawyer looses a few hours of billables on a BS case. They also have the potential to make millions for the same few hours. And more than a few "contingency" agreements (at least in California) are expenses plus contingency - there are cases where after winning a suit, the plaintiffs not only don't get ANY money, they owe their lawyers more.

The physician on the other hand looses not only his income opportunity, he has the other economic and non-economic losses I addressed.

Perhaps you have not been reading the posts above. It takes about $100,000 in out of pocket expenses to brings a suit to trial. It also takes thousands of hours. It is true that filing a suit is inexpensive (perhaps less than $100 in many jurisdictions), but you cannot get past summary judgement unless you get an expert. And this costs THOUSANDS - every penny of which comes right out of the lawyer's pocket and is put at risk of loss. You don't normally get to settlement talks (perhaps a settlement will be reached) until after expert affidavits and discovery. That's thousands and thousands of dollars down the road. The lawyer pays for ALL of this out of his own pocket and cannot expect to see any of it again unless his client recovers. This is all set forth above.

Your assertion that after a case a plaintiff might owe his attorney money is ridiculous. Expenses come out first. IF (possible, I suppose) the recovery does not exceed the actual expenses, the lawyer is entitled only to that amount of the recovery that can cover expenses. Surely you are not advocating that lawyers should be obliged to lose money to bring a case. If he spends $75,000 to bring a case, and the recovery is $60,000, explain to me how the lawyer wins. Seems to me that nobody wins.

judd

flighterdoc

06-16-2004, 05:38 PM

Perhaps you have not been reading the posts above. It takes about $100,000 in out of pocket expenses to brings a suit to trial. It also takes thousands of hours. It is true that filing a suit is inexpensive (perhaps less than $100 in many jurisdictions), but you cannot get past summary judgement unless you get an expert. And this costs THOUSANDS - every penny of which comes right out of the lawyer's pocket and is put at risk of loss. You don't normally get to settlement talks (perhaps a settlement will be reached) until after expert affidavits and discovery. That's thousands and thousands of dollars down the road. The lawyer pays for ALL of this out of his own pocket and cannot expect to see any of it again unless his client recovers. This is all set forth above.

Your assertion that after a case a plaintiff might owe his attorney money is ridiculous. Expenses come out first. IF (possible, I suppose) the recovery does not exceed the actual expenses, the lawyer is entitled only to that amount of the recovery that can cover expenses. Surely you are not advocating that lawyers should be obliged to lose money to bring a case. If he spends $75,000 to bring a case, and the recovery is $60,000, explain to me how the lawyer wins. Seems to me that nobody wins.

judd

Well, the lawyer would get his expenses (60K), the doctor or his insurance company would loose the 60K, the doctor is out 60K plus the total cost of trying the case including HIS lawyers fees, lost work, etc, the plaintiff gets nothing, and the plaintiffs atty gets 4/5'ths of what he wanted - which was no doubt padded to the hilt. I worked at Latham & Watkins when the "born to bill" scandal happened concerning one of their offices. So, it seems that the lawyer does make out. Just not as much as he might have wanted, but far, far better than everyone else.

samurai_lincoln

06-16-2004, 05:57 PM

Well, the lawyer would get his expenses (60K), the doctor or his insurance company would loose the 60K, the doctor is out 60K plus the total cost of trying the case including HIS lawyers fees, lost work, etc, the plaintiff gets nothing, and the plaintiffs atty gets 4/5'ths of what he wanted - which was no doubt padded to the hilt. I worked at Latham & Watkins when the "born to bill" scandal happened concerning one of their offices. So, it seems that the lawyer does make out. Just not as much as he might have wanted, but far, far better than everyone else.

Ummm, he just stated in the hypo that the lawyer's out of pocket expenses (actual) were $75k... so the lawyer doesn't even cover his expenses if the recovery is $60k. Using my high powered supercomputer to perform this complex calculation, the plaintiff's attorney still loses $15k in said scenario. Please explain to us how the plaintiff's attorney "makes out" here.

And I hate to be a complete grammar timmy, but this is just freain' killing me since you've done it at least three times. If you spell "lose" as "loose" again, I am going to bust loose and lose it!! ;)

g3pro

06-16-2004, 06:00 PM

I'm sure you know this through all your vast years of experience as a trial attorney :rolleyes: You conveniently overlook the fact that most defendants have a huge bankroll of resources, and are paying their white shoe law firms by the hour, who are in turn enticed to rack up fees and drown the plaintiff in paperwork. You think a huge HMO or hospital will think twice about trotting out an army of expert witnesses? How do you expect the plaintiff to counter this evidence... by putting em's mother on the stand?

I'm sure you know this through all your vast years of experience as a trial attorney. :rolleyes: You forget that most defendents are privately practicing physicians with a tiny bankroll of resources. Gross negligence is difficult to prove by physician testimony and documentation? :rolleyes:

It's like what Clinton used to say: "It is easy to convict an innocent man if you have the right number of witnesses, but it is far easier to set a guilty man free using false logic and predictable liberal ignorance."

:laugh:

NonTradMed

06-16-2004, 06:04 PM

Hm, you know, I think it's interesting that as soon as we bring up socialist medicine, people are up in arms about physicians losing income blah blah, but in this thread, lawyers are the greedy money grubbers out to get those noble doctors. :laugh:

Hey, lawyers will say the current system of litigation, while imperfect, is still necessary for a civil society of law, just as physicians will say that the current medical system, while imperfect, is still necessary for our current society. But in the end, all argument is just on the bottom line. The only difference is, people are hypocrites when they protray certain people of one profession as 'more noble' than another. One person can be more noble than another person, but I have yet to see any proof that a degree determines a person's morale.....but perhaps it's just where i went to school. :)

I won't comment on how best to fix our tort system, but I will make the comment that anything people say about 'greedy' lawyers, can be said of 'greedy doctors'.

People choose a profession for a variety of reasons. If a doctor refused treatment for a lawyer and his family b/c of his degree, maybe a CPA can refuse to accept a physician as a client b/c they had a lousy experience with doctors. Refusing treatment based on a profession is about as dumb and ineffective as refusing treatment on race. True, you can't change your race, but we all know the reason we don't assume that all blacks are criminals is that most aren't. So, since MOST lawyers dont' even try medical malpractice, and half of all lawyers are transactional lawyers that dont' even see the inside of a courtroom....you're pretty much refusing treatment on a very flimsy reason.

juddson

06-16-2004, 06:07 PM

The idea of making court cases more "costly" to lawyers to make it not worth pursuing the case as they have done in the past is essential to getting liability insurance problems out of the way. If a lawyer needs to hire several "expert" witnesses to help him grandstand a trial to punish an "innocent" lawyer, and he can't afford those experts now, then good riddance! Gross malpractice cases are easily won without a cadre of expert witnesses. The problem for lawyers is when they need to pull out all the stops to do everything possible to punish physicians who "don't do everything they need to do" or whatever.

A plaintiff WILL NOT survive summary judgment without expert testimomy no matter how "easy" the case is. The doctor could be Mengelev himself - no expert, no jury trial. Your ignorance of the legal system is staggering. It's OK to be ignorant (for instance, I know nothing about medicine) - but then I don't go spouting off about the proper way to perform an apendectomy.

The STFU stuff is very mature. Perhaps this forum should be reserved only for doctors AND, of course, ONLY those doctors who agree with you. You are an immature .

Oh, and STFU, Judd.

brilliant!!! I'm sure you'll be an asset to the medical profession.

Judd

samurai_lincoln

06-16-2004, 06:09 PM

I'm sure you know this through all your vast years of experience as a trial attorney. :rolleyes: You forget that most defendents are privately practicing physicians with a tiny bankroll of resources. Gross negligence is difficult to prove by physician testimony and documentation? :rolleyes:

It's like what Clinton used to say: "It is easy to convict an innocent man if you have the right number of witnesses, but it is far easier to set a guilty man free using false logic and predictable liberal ignorance."

:laugh:

Wrong... all physicians must carry malpractice insurance, so the real defendant is the insurance company. And while I don't touch med mal, I have three years of background in corporate/securities and another year (and counting) in litigation. I think I have a bit more standing to opine on what goes on a courtroom, clown.

I have no idea what the Clinton quote has to do with anything here... besides, why would he use the term "predictable liberal ignorance"??? :confused:

juddson

06-16-2004, 06:11 PM

Well, the lawyer would get his expenses (60K), the doctor or his insurance company would loose the 60K, the doctor is out 60K plus the total cost of trying the case including HIS lawyers fees, lost work, etc, the plaintiff gets nothing, and the plaintiffs atty gets 4/5'ths of what he wanted - which was no doubt padded to the hilt. I worked at Latham & Watkins when the "born to bill" scandal happened concerning one of their offices. So, it seems that the lawyer does make out. Just not as much as he might have wanted, but far, far better than everyone else.

yes, as I said, nobody wins. A med mal case represents a "cost" on the system. Remember, however, that even when the recovery is small, there is still a recovery. This means that the plaintiff won (something). Why should that case not have been brought?

In any event, your math does no good. The lawyer who recovered only 60k of his 75k expenses has LOST 15k. The plaintiff suffered an uncompensated wrongful injury and the insurance company lost 60k to pay the award plus the costs to defend (insurance companies themselves pay for the doctors cost of defense as well as the award - a doctor may also hire his own attorney if he likes). There are no winners here. The lawyer did NOT get 4/5 of "what he wanted". He doesn't practice law to "break even" any more than doctors practice medicine to "break even". Neither would do what they do without being paid.

Judd

Judd

beambright

06-16-2004, 06:16 PM

Some things just aren't fair are they? bump bump oops splat :D :laugh:

juddson

06-16-2004, 06:19 PM

I'm sure you know this through all your vast years of experience as a trial attorney. :rolleyes: You forget that most defendents are privately practicing physicians with a tiny bankroll of resources. Gross negligence is difficult to prove by physician testimony and documentation? :rolleyes:
:laugh:

You aim to please, I see.

Doctors don't defend themselves. That is why they have insurance companies. These HUGE companies foot the bill for the cost of defense AND the award. The doctors own "out of pocket" expenses are minimal (unless he decides to hire his own attorney). Moreover, plaintiff's attorneys (the vast VAST majority of them) are NOT wealthy and cannot afford to hire nearly the number and breadth of experts that insurance companies can.

Judd

juddson

06-16-2004, 06:22 PM

beambright

06-16-2004, 06:29 PM

My father is a surgeon and spent 2 weeks defending an attempt by a
unscrupulous attorney and money seeking patient to sue him because she
didn't like the way her scar healed. After two weeks trial, the whole
thing was dismissed. However, my dad missed two weeks of work, went
through a great deal of stress, and his insurance company had to defend
the stupid attempt to get money for this lady & her attorney. Thankfully
they both lost but so did my dad. It is a screwed up system....obviously
if someone has the wrong leg cut off there should be some compensation
but anyone can sue anyone for anything in our current legal setup....there
MUST be a basic review that there is some merit to the case. I hate
lawyers myself now and the whole thing put our entire family through a great
deal of stress unnecessarily. It was an attempt to win the lottery. Ridiculous! Docs left and right are retiring in our town due to the stress of
malpractice and the unfairness of insurance reimbursements. I seriously
think the problem will get solved soon though because there will be no docs
in some parts of the country soon and no docs in some specialties. The
lawyers are responsible....99% Selfish insurance companies l%

Indebt4Life

06-19-2004, 11:50 PM

When we say "Lawyers are to blame" I don't think that we should point the finger at everyday malpractice lawyers. It's not to say that I don't think that they are scum...because I do. However, they are doing what they were trained to do..sue and make money for themselves. It is their livelihood. The lawyers that I have in mind that I really think should be blamed for all the healthcare crisises are the politicians. Most politicians are lawyers and lots of their campaigns are funded by lobbys composed of lawyers. So, they want to protect their own and screw the docs over.

Why is it that docs are "obligated" by law to provide service without compensation or before being compensated? Is there any other profession out there that allows this? I don't think so.

If the law requires the "docs" to do something, don't you think that the law could also very easily place some reforms to lessen the blow of frivolous suits. Yes, of course they can. But they don't because the politicians do not want to bite the hand that feeds them. All of the sudden some lawyers would find themselves without a job. If there was a way for doctors to unite and stop putting up with the BS; I believe that we could remedy the issues.

I was speaking to an EM doc and he told me that there is a cap placed for Emergency medicine in Florida at 150K and other specialties at 500K. Is this true ?

kinetic

06-20-2004, 05:34 AM

Wrong... all physicians must carry malpractice insurance, so the real defendant is the insurance company.

Is anyone else here blown away by this statement? The premise is so upside-down that I don't even know what to do with it.

Neuronix

06-20-2004, 05:38 AM

Wrong... all physicians must carry malpractice insurance, so the real defendant is the insurance company.

Ummm, no. Only some states (inclduing mine, PA) require a doctor to carry malpractice insurance. It's an increasing trend now for physicians to go without malpractice insurance, especially in high-risk specialties like OB/GYN. The name for it in medicine is "going bare". They pull all sorts of tricks, like renting all equipment, putting owned stuff in the spouse's name, and generally keeping no assets. This way, if they are sued, the negotions start at 0 and go up, as opposed to start at millions and go down.

See: http://www.ama-assn.org/amednews/2004/04/05/prl10405.htm for example.

kinetic

06-20-2004, 05:48 AM

No, no ...I wasn't even concerned with the "all physicians must carry malpractice insurance" part (although I agree with you that it's not required). It's what comes AFTER that which is cracking me up.

And the scary (or informative) part is: that's coming from a lawyer.

kinetic

06-20-2004, 05:58 AM

Hm, you know, I think it's interesting that as soon as we bring up socialist medicine, people are up in arms about physicians losing income blah blah, but in this thread, lawyers are the greedy money grubbers out to get those noble doctors.

I'm not sure how to put this other than: you (and juddson by extension, since he agrees with you and "has been saying this for years) don't even understand the issue, do you? Socialist medicine does not refer to how much the DOCTOR makes; it refers to how SOCIETY AS A WHOLE funds health care. Now, undeniably, physicians will probably make less, but in other socialist health systems physicians are still quite well off. The problem is that HEALTH CARE DOLLARS are spread thinly to cover everyone, making services unavailable to people. In other words, physicians -- UNLIKE LAWYERS -- care ultimately about taking care of patients. Otherwise, we could care less how the system was structured, punch our time card, and scoot on home. LAWYERS don't care what the impact of ANYTHING is on society -- as long as they get theirs.

Like I said, lawyers blabber on and on about "making sure your rights are protected" and other high-falutin' issues. But note: they don't care if their client is right or wrong. AT ALL. With the exception of D.A.s and criminal prosecutors, their ONLY ALLEGIANCE (and they will tell you this) is to their client. (And, technically, since D.A.s have us as their clients, it's true of them, too; but at least they are looking out for society as a whole.) They only want "to get you the money that you deserve!" (And which they will promptly take a large percentage of.)

NICE! :thumbup:

flighterdoc

06-20-2004, 08:49 AM

When we say "Lawyers are to blame" I don't think that we should point the finger at everyday malpractice lawyers. It's not to say that I don't think that they are scum...because I do. However, they are doing what they were trained to do..sue and make money for themselves. It is their livelihood.

And drug dealers livelihood is dealing drugs. Does that make it right?

The lawyers that I have in mind that I really think should be blamed for all the healthcare crisises are the politicians. Most politicians are lawyers and lots of their campaigns are funded by lobbys composed of lawyers. So, they want to protect their own and screw the docs over.

Exactly!

Why is it that docs are "obligated" by law to provide service without compensation or before being compensated? Is there any other profession out there that allows this? I don't think so.

If the law requires the "docs" to do something, don't you think that the law could also very easily place some reforms to lessen the blow of frivolous suits. Yes, of course they can. But they don't because the politicians do not want to bite the hand that feeds them. All of the sudden some lawyers would find themselves without a job. If there was a way for doctors to unite and stop putting up with the BS; I believe that we could remedy the issues.

I was speaking to an EM doc and he told me that there is a cap placed for Emergency medicine in Florida at 150K and other specialties at 500K. Is this true ?

How about the people deciding that any lawyer has to provide excellent legal service (defined as winning the case) for free, for anyone who crawls across the doorway - and with no guarantee of getting paid, even for a sucessful outcome?

Thats what the lawyers (via the politicians) have decided doctors have to do.

samurai_lincoln

06-20-2004, 09:05 AM

Ummm, no. Only some states (inclduing mine, PA) require a doctor to carry malpractice insurance. It's an increasing trend now for physicians to go without malpractice insurance, especially in high-risk specialties like OB/GYN. The name for it in medicine is "going bare". They pull all sorts of tricks, like renting all equipment, putting owned stuff in the spouse's name, and generally keeping no assets. This way, if they are sued, the negotions start at 0 and go up, as opposed to start at millions and go down.

See: http://www.ama-assn.org/amednews/2004/04/05/prl10405.htm for example.

OK, I apologize and stand corrected. I amend my statement, which I knew I should have researched to start with, but was too lazy... in the state where I currently practice, the one with which I am most familiar, all doctors must carry malpractice insurance. Still, despite this growing trend, the vast majority of doctors carry insurance, and in these cases the insurance company is the true defendant in the law suit. They essentially take over representation in the case, including providing the defense attorney.

As for these "tricks", ironically these are things that an attorney would often be assisting in during partnership (professional association, whatever) formation. The only thing I would caution against is that anyone who strips almost all assets out of their company can have the "corporate veil" pierced, and personal assets will then be used to satisfy the judgment. But obviously some judicious asset planning is a wise move.

samurai_lincoln

06-20-2004, 09:17 AM

LAWYERS don't care what the impact of ANYTHING is on society -- as long as they get theirs.

Like I said, lawyers blabber on and on about "making sure your rights are protected" and other high-falutin' issues. But note: they don't care if their client is right or wrong. AT ALL. With the exception of D.A.s and criminal prosecutors, their ONLY ALLEGIANCE (and they will tell you this) is to their client. (And, technically, since D.A.s have us as their clients, it's true of them, too; but at least they are looking out for society as a whole.) They only want "to get you the money that you deserve!" (And which they will promptly take a large percentage of.)

NICE! :thumbup:

Of course lawyers have complete allegiance to their clients. This is the premise behind the American legal system. It is required by state professional responsibility codes, and any lawyer who fails to live up to their obligation of zealous (within reason) representation runs a serious risk of facing a malpractice suit. Yes, attorneys face these considerations as well, particularly with unhappy clients in personal injury or estate planning situations.

Lawyers, like doctors, do have some choice in which cases they take. But once they take the case, there is no place for judging whether your client is truly in the right. You must provide representation to the best of your abilities either way. And initial screening of cases is an imprecise science, since your clients often fail to tell you the whole story.

From the sounds of it, you have a beef with the legal system in general. Which is fine, but don't shoot the messenger in the process. Individual attorneys are just following the rules of the road and attempting to make a living within this construct, just as their physician counterparts are.

kinetic

06-20-2004, 07:10 PM

Of course lawyers have complete allegiance to their clients. This is the premise behind the American legal system.

Lawyers SHOULD have allegiance to the truth. The fact that this matters little to nothing to them is disturbing at best. Their job is to represent their client; their duty is to uphold what is right and just. Unfortunately, the latter has fallen by the wayside.

flighterdoc

06-20-2004, 07:43 PM

juddson

06-20-2004, 08:09 PM

Lawyers SHOULD have allegiance to the truth. The fact that this matters little to nothing to them is disturbing at best. Their job is to represent their client; their duty is to uphold what is right and just. Unfortunately, the latter has fallen by the wayside.

Believe me, this is not something that is lost on attorneys. But there is also a recognition that nobody can actually know the "truth". It's an imperfect concept at best, and therefore a conscious decision was made early on in American (and British) jurisprudence that the BEST way to arrive at the "truth" (whatever the hell that is) is through a rigorous adversarial process. And THIS process only works when the attorney's allegance is to his client, and nobody else. If we had a magic crystal ball that could "see" the truth, we wouldn't need this sort of system. But we don't.

This is not to say that there are no safegaurds in this process - there are. For instance, an attorney cannot present the testimony of a witness who he believes (or has reason to believe) is not telling the truth. Likewise, prosecuting attorneys have a legal (and ethical) obligation to present exculpatory evidence to the defendant no matter how much he thinks the guy did it.

Anyway. . . .

continue

judd

gary5

06-20-2004, 11:40 PM

Most lawyers are scum. Physicians shouldn't feel obligated to treat a malpractice lawyer who spends his/her time attacking physicians in court. Don't worry, they can always find someone else to treat them. They can also not mention what they do, or they could lie and say they help people for a living.

kinetic

06-21-2004, 04:46 AM

But there is also a recognition that nobody can actually know the "truth".

True, in many cases. The problem with this rationalization is we have lawyers who act like the mob -- the legal system is all based on technicalities and loopholes and that's what passes for "justice" these days, thanks to lawyers. "Don't tell me whether you did it or not ...I don't want to know because then I might actually have a problem! (Well, not with my conscience ...)" So, TECHNICALLY they can argue, "uh, to the best of my knowledge, my client is innocent :D ," even though the REALITY is they know better. Or worse, with malpractice lawyers, they go IN knowing their suit is frivolous, but "what the hell, it's a good enough sob story that I may be able to get the jury to throw some cash at me!"

It's an imperfect concept at best, and therefore a conscious decision was made early on in American (and British) jurisprudence that the BEST way to arrive at the "truth" (whatever the hell that is) is through a rigorous adversarial process. And THIS process only works when the attorney's allegance is to his client, and nobody else.

Wrongo! The "rigorous adversarial process" only serves to show who can PERSUADE people better -- in other words, at best it generally proves only who is a better "lawyer," not who was "right or wrong." Moreover, since you have to fight about what is permissible to present as evidence, it's even more hypocrisy by lawyers. "Well, I know this and you know this, but we can't talk about it! Yippee!"

kinetic

06-21-2004, 04:47 AM

ken37

06-21-2004, 05:20 AM

True, in many cases. The problem with this rationalization is we have lawyers who act like the mob -- the legal system is all based on technicalities and loopholes and that's what passes for "justice" these days, thanks to lawyers. "Don't tell me whether you did it or not ...I don't want to know because then I might actually have a problem! (Well, not with my conscience ...)" So, TECHNICALLY they can argue, "uh, to the best of my knowledge, my client is innocent :D ," even though the REALITY is they know better. Or worse, with malpractice lawyers, they go IN knowing their suit is frivolous, but "what the hell, it's a good enough sob story that I may be able to get the jury to throw some cash at me!"

Wrongo! The "rigorous adversarial process" only serves to show who can PERSUADE people better -- in other words, at best it generally proves only who is a better "lawyer," not who was "right or wrong." Moreover, since you have to fight about what is permissible to present as evidence, it's even more hypocrisy by lawyers. "Well, I know this and you know this, but we can't talk about it! Yippee!"
Do you actually know anything about lawyers or the law, or do you get this all from watching TV and 3rd hand knowledge?

kinetic

06-21-2004, 05:36 AM

Do you actually know anything about lawyers or the law, or do you get this all from watching TV and 3rd hand knowledge?

Well, I mug people on the streets, beat old ladies, and pistol-whip little kids for loose change ...so, yeah, I know about lawyers.

juddson

06-21-2004, 08:38 AM

Do you actually know anything about lawyers or the law, or do you get this all from watching TV and 3rd hand knowledge?

:laugh: :laugh: :laugh:

I know, I know. His arguments are so illconceived and without nuance. They lack any sort of real insight. Holding an opinion like "all lawyers are money grubbing scum" is harldy more insightfull than insisting that Claudia Shiffer is the hottest woman on the planet. Sure she's nice looking - but show some ambition fer christ's sake.

Judd

flighterdoc

06-21-2004, 09:32 AM

Well, I mug people on the streets, beat old ladies, and pistol-whip little kids for loose change ...so, yeah, I know about lawyers.

So you ARE one! :laugh:

flighterdoc

06-21-2004, 09:33 AM

Please join us in the Lounge for the new "Lawyer Jokes" thread!

Gleevec

06-21-2004, 10:02 AM

Do you actually know anything about lawyers or the law, or do you get this all from watching TV and 3rd hand knowledge?

Do malpractice lawyers and their jackpot juries actually know anything about doctors or medicine, or do they get this all from watching TV and 3rd hand knowledge?

Doesnt seem to stop lawyers from making medical arguments and collecting big bucks, so it seems as if kinetic is OK on that account (especially since he isn't even getting paid to post this stuff, though some of his posts might be worth a pay-per-view).

ms2209

06-21-2004, 10:10 AM

Doesnt seem to stop lawyers from making medical arguments and collecting big bucks

Or the MBAs who are heading up insurance companies, for that matter!

Catalyst

06-21-2004, 10:18 AM

An interesting NYTimes editorial today on medical malpractice that argues from a patient's perspective... http://www.nytimes.com/2004/06/21/opinion/21HERB.html

jpro

06-21-2004, 10:41 AM

the "truth" (whatever the hell that is)

I think that pretty much sums it up for me.

flighterdoc

06-21-2004, 10:51 AM

An interesting NYTimes editorial today on medical malpractice that argues from a patient's perspective... http://www.nytimes.com/2004/06/21/opinion/21HERB.html

Nobody is saying that the injured shouldn't be taken care of - but what, exactly, is the right degree of "being taken care of"

Medicine is an art - not a science. People are all not the same.

What exactly was the problem with the woman who had a tubal ligation? That an AA wasn't seen? Even with tens of thousands of dollars of imaging, you can't always see everything, and mistakes happen. The AA was hit, the gynecologist called in a surgeon to fix it, and she's alive now. Who, exactly is responsible? Should we have angiography of all major vessels before every procedure? Crap like this is why costs go out of control - CYA tests that are useful in 1/10000 cases.

The woman who had both breasts removed is a tragedy,and the alleged response is insensitive. How much is having your feelings hurt, vs a bad path read, worth?

juddson

06-21-2004, 11:28 AM

(especially since he isn't even getting paid to post this stuff, though some of his posts might be worth a pay-per-view).

:laugh: :laugh: :laugh:

Judd

juddson

06-21-2004, 11:31 AM

Medicine is an art - not a science. People are all not the same.

This is the smartest thing you have said. So why, then, should everybody be restricted to $250,000 for pain and suffering no matter HOW MUCH pain and suffering they experience? Everybody is different - every injury is distinct. And yet, despite your moment of epiphany, you support a "one size fits all" solution.

Judd

gary5

06-21-2004, 12:27 PM

on_the_fence

06-21-2004, 12:35 PM

What do you guys think of this? Why don't we have patients sign waviers like doctors in Texas stating that by getting treated by us, you agree to waive your right to legal action in the case of accidental personal injury or death? Leave a clause stating that negligence warrants legal action or whatever.

I was thinking this exact same thing just this morning! I am interested in OB/GYN, but the malpractice suits are terrible!! People are too sue happy.

flighterdoc

06-21-2004, 02:36 PM

I was thinking this exact same thing just this morning! I am interested in OB/GYN, but the malpractice suits are terrible!! People are too sue happy.

It doesnt hold up, legally. The lawyers have it all figured out. They charge the doctors for drawing up the waiver, then they represent the people suing, even though they signed the waiver, because the patient is too fing stupid to understand what they signed. Or, because the doctor didn't stress that there is a 1/1-million chance that freezing a wart off might result in hiccups. Or nothing at all.

samurai_lincoln

06-21-2004, 03:14 PM

It doesnt hold up, legally. The lawyers have it all figured out. They charge the doctors for drawing up the waiver, then they represent the people suing, even though they signed the waiver, because the patient is too fing stupid to understand what they signed. Or, because the doctor didn't stress that there is a 1/1-million chance that freezing a wart off might result in hiccups. Or nothing at all.

C'mon, think about this from a bit broader perspective and consider the policy implications. The reason why such waivers are rarely upheld is the huge disparity in bargaining power between the two parties. Particularly in the case of medical care, which is for all practical purposes a necessity, even in non-emergency cases. If the doctor refuses to provide treatment unless a patient waives his rights, then of course the patient will relent and sign away. Add this coercion to the doctor's already vastly superior knowledge of healthcare, and it is clear that the patient has little bargaining power. And that is the essence of contract law: that the contract was formed between two parties of relatively equal sophistication and bargaining power, free from any undue influence, fraud, etc.

To anticipate the counterargument... yes, the patient has the option of seeing another doctor. But this may not always be true, as in the case of specialists, rural areas, etc. And services are usually considered "unique" items, i.e. the service provided by Doctor X is considered different from that provided by Doc Y, even if performing the same procedure.

Addressing another point of yours, it isn't as if the same lawyers representing doctors in drafting contracts and the like are then turning around and suing doctors for malpractice. Two totally separate groups. But of course you are too busy stereotyping all lawyers to see this distinction. :rolleyes: Evidently I am the only one who doesn't have it "figured out", since I have yet to see this money rolling in hand over fist you seem to think is par for the course in the practice of law.

flighterdoc

06-21-2004, 03:36 PM

C'mon, think about this from a bit broader perspective and consider the policy implications. The reason why such waivers are rarely upheld is the huge disparity in bargaining power between the two parties. Particularly in the case of medical care, which is for all practical purposes a necessity, even in non-emergency cases. If the doctor refuses to provide treatment unless a patient waives his rights, then of course the patient will relent and sign away. Add this coercion to the doctor's already vastly superior knowledge of healthcare, and it is clear that the patient has little bargaining power. And that is the essence of contract law: that the contract was formed between two parties of relatively equal sophistication and bargaining power, free from any undue influence, fraud, etc.

To anticipate the counterargument... yes, the patient has the option of seeing another doctor. But this may not always be true, as in the case of specialists, rural areas, etc. And services are usually considered "unique" items, i.e. the service provided by Doctor X is considered different from that provided by Doc Y, even if performing the same procedure.

Addressing another point of yours, it isn't as if the same lawyers representing doctors in drafting contracts and the like are then turning around and suing doctors for malpractice. Two totally separate groups. But of course you are too busy stereotyping all lawyers to see this distinction. :rolleyes: Evidently I am the only one who doesn't have it "figured out", since I have yet to see this money rolling in hand over fist you seem to think is par for the course in the practice of law.

So, the physician is supposed to have less rights than the patient? To be chattel?

BTW, I understand the varieties of lawyers - I just like lumping them all together into the slime bucket. :rolleyes:

juddson

06-21-2004, 04:47 PM

So, the physician is supposed to have less rights than the patient? To be chattel?

What does this mean? A chattel is a piece of personal property. How does this relationship make a doctor a chattel?

The reasons that waivers don't work is because our laws do not permit a patient to consent to negligent care (or, to "assume the risk that somebody will be negligent). That, of course, is the ONLY effect a waiver of liability would have in practice because, after all, a poor outcome that is NOT the result of negligent care is not compensable anyway.

Think for a moment about what a meaningful waiver of this type must look like - in effect the contract would specify that the doctor need not exercise due care for the safety of his patient - which is patently absurd, as I'm sure you will agree. The other (softer) waiver might include language to the effect that the patient agrees not to sue the doctor for poor outcomes outside of his control. But the softer waiver is meaningless and ineffectual because culpable conduct on the part of the defendant is part of the plaintiff's prima facia case anyway.

The following example suffices to explain why: Some patients simply do not respond well to general anesthetic, and despite the fact that the MDA has complied with all applicable standards of care pre-operatively, performed the administration of anesthetic brilliantly and was compliant with all other requirements, there are a certain percentage of patients who will simply never get off the table due to the serendipity of their individual physiologies that no doctor could have previously discovered.

What effect will the sort of waiver you contemplate (no liability for "accidents" - not sure what that is supposed to mean) have on the doctor's liability? The answer is none. Why? Because the patient would still have to demonstrate a deviation from the standard of care in order to make a prima facia case. And in this case, no such demonstration is possible. Hence, there is no liability whether the waiver was in place or not.

On the other hand, suppose that the MDA administered pharma A when she should have administered pharma B. There's no question of "malice" or recklessness here. Just as "honest mistake" due to fatigue or a fight she had with her husband over breakfast, or whatever. No matter how you slice it, this is "negligence" - a palpable deviation from the standard of care, which required the administration of pharma B rather than pharma A. The ONLY sort of waiver that would protect a doctor from a suit arising out of this second situation is one that waived the doctor's obligation to exercise "due care" (ie., not be "negligent") in the administration of anesthetic. For reasons I hope you can see, courts are not prone to enforce this sort of agreement, and for good reason.

That is why waivers are worthless.

I know that most of this dodges the real issue for you - which I gather is that you think doctors should be able to make so-called "honest mistakes" without the threat of liability - and that liability should be premises only upon some level of culpability that rises above that which you call an "honest mistake". Even if we were to ignore the legal equivalence of "honest mistakes" with what we call "negligence", there is a sound philosphical basis to require doctors (everybody, really) to pay for "honest mistakes" when they happen. And it is the same reason we require people who run red lights to pay for the cost of thier "honest mistakes", which is that the "cost" of the injury is rightly borne by the most culpable party - in that case, the red light running motorist.

Doctoring is a risky business because it is fraught with opportunities to make errors. However, it is also a well compensated business, no doubt based in part on the risk a doctor assumes when he picks up a scalpel or offers to diagnose a condition.

Judd

gary5

06-21-2004, 04:56 PM

This is the smartest thing you have said. So why, then, should everybody be restricted to $250,000 for pain and suffering no matter HOW MUCH pain and suffering they experience? Everybody is different - every injury is distinct. And yet, despite your moment of epiphany, you support a "one size fits all" solution.

Judd

Doctors can't charge enough to pay for multimillion dollar lawsuits, thanks to HMOs, etc. If a patient wants to be able to sue for $1,000,000, then he needs to be willing to pay $1,000-$10,000 to see any doctor, not $100.

juddson

06-21-2004, 06:48 PM

Doctors can't charge enough to pay for multimillion dollar lawsuits, thanks to HMOs, etc. If a patient wants to be able to sue for $1,000,000, then he needs to be willing to pay $1,000-$10,000 to see any doctor, not $100.

This makes some intuitive sense, but the reality is different. For instance, even the very high cost of medical malpractice insurance (which corresponds - theoretically - to the cost of malpractice cases in the aggregate) permits the overwhelming majority of doctors who must pay high premiums to make in the 2's and better (those docs who make less than 2's normally are in low risk catagories anyway). There is plenty of anecdotal reports of neurosurgeons and OB/GYN's who take home less than $100,000 after premiums, but they are in the super-minority. Most OB's still clear $220k and most neurosurgeons clear above $300k even in this climate. And there are just as many anecdotal reports of doctors continuing to carry on a lucrative practice having been sued multiple times. How do they continue to make a living?

Judd

kinetic

06-21-2004, 07:51 PM

Is it just me, or when you read juddson's posts anymore, do you go:

What does this mean? A chattel is ...

:sleep: :sleep: :sleep:

...offers to diagnose a condition.

Judd

WalterSobchakk

06-21-2004, 09:41 PM

How about they just cap the amount lawyers can take? That way, victims will get what they're entitled to, and lawyers won't be tempted to abuse their power. Problem solved. Of course, who would pass a stupid law like that... :(

flighterdoc

06-21-2004, 09:54 PM

This makes some intuitive sense, but the reality is different. For instance, even the very high cost of medical malpractice insurance (which corresponds - theoretically - to the cost of malpractice cases in the aggregate) permits the overwhelming majority of doctors who must pay high premiums to make in the 2's and better (those docs who make less than 2's normally are in low risk catagories anyway). There is plenty of anecdotal reports of neurosurgeons and OB/GYN's who take home less than $100,000 after premiums, but they are in the super-minority. Most OB's still clear $220k and most neurosurgeons clear above $300k even in this climate. And there are just as many anecdotal reports of doctors continuing to carry on a lucrative practice having been sued multiple times. How do they continue to make a living?

Judd

Because, the ones wh don't want to pay out 33% or more of their gross in insurance premiums move to a less expensive field, or location. Physicians who get sued a lot may just be in fields where physicians get sued a lot (neuro, ob/gyn). Or, they may be crappy physicians, but they're the only ones left in an area so they continue to get work. A trauma center, for instance, has to have neurosurgeons available or on call, and if the only BC neuro is a quack, he's still a BC neuro.

flighterdoc

06-21-2004, 09:56 PM

What does this mean? A chattel is a piece of personal property. How does this relationship make a doctor a chattel?

Judd

Sorry. I should have said a chattel of the state. If a physician is obliged to do something they don't want to under the penalty of law, they are no more than a serf or slave.

samurai_lincoln

06-21-2004, 10:21 PM

Sorry. I should have said a chattel of the state. If a physician is obliged to do something they don't want to under the penalty of law, they are no more than a serf or slave.

Are you seriously advocating the position that the fact that a doctor cannot enforce an unconscionable contract against his patient, abrogating all potential liability, makes him a slave of the state? Keep in mind that such contracts are virtually unenforceable across the board against consumers, in all areas of business.

There are all sorts of things I want to do, but the law prohibits, and likewise many things I only do because the law requires. I hardly consider myself a serf or slave as a result. Your hyperbole knows no bounds.

flighterdoc

06-21-2004, 11:32 PM

Are you seriously advocating the position that the fact that a doctor cannot enforce an unconscionable contract against his patient, abrogating all potential liability, makes him a slave of the state? Keep in mind that such contracts are virtually unenforceable across the board against consumers, in all areas of business.

There are all sorts of things I want to do, but the law prohibits, and likewise many things I only do because the law requires. I hardly consider myself a serf or slave as a result. Your hyperbole knows no bounds.

No. Neither do I advocate a situation where the doctor has fewer rights than others.

And, if my hyperbole knows no bounds, perhaps I should have gone to law school. Fortunately, my parents raised me right, even if my grandparents screwed up 2 out of three times.

flighterdoc

06-22-2004, 10:12 AM

Here is another reason why lawyers are held in such low esteem. From the NY Post:

http://www.nypost.com/postopinion/editorial/26188.htm

June 22, 2004 -- If judges and lawyers wonder about why they are held in such low esteem by so many Americans, they might consider the loose lips of Federal Appeals Court Judge Guido Calabrese.

Like many, Calabrese didn't like the Supreme Court decision that decided the 2000 presidential election in favor of George W. Bush. And, like so many other unrepentant liberals, he's still very angry about it.

The New York Sun reports that at last weekend's annual convention of the American Constitution Society in Washington, Judge Calabrese compared Bush's election to the rise of totalitarian despots Adolf Hitler and Benito Mussolini.

....

Now, Calabrese thinks that none of this was in any way political: "I'm a judge, and so I'm not allowed to talk politics," he told the audience.

Which means he doesn't comprehend judicial propriety.

Now, it would be easy to ignore the 71-year-old jurist's rantings ? except that he occupies a seat, courtesy of Bill Clinton, on what is often regarded as the nation's second-most important court, the 2nd Circuit U.S. Court of Appeals, which sits in Manhattan.

As such, he hears ? and helps decide ? some of the most critical federal cases and constitutional issues. And he has a lifetime job: He can be removed from office only if impeached and convicted by the Senate.

In other words, the nation is stuck with him.

But common sense ? and judicial fairness ? demand that, given his blatant and public political bias, Judge Calabrese recuse himself from any and all cases involving the Bush administration, including any case on which the administration has taken a public position.

Clearly, he is in no position to evaluate such cases fairly.

Of course, that would undermine his effectiveness as a Court of Appeals judge ? in which case he could do everyone a huge favor, and simply resign.