Although it is blindingly obvious that no compromise short of party-switching will persuade any Republicans to support President Obama, some commentators have suggested that adding some tort reform provisions could give the bill a bipartisan air about it. I’m skeptical: given that the current proposals are substantially equivalent to moderate Republican proposals in 1993, it doesn’t figure to help much.
That said, if an idea is a good one, and does not injure the coalition for what is now a good bill, there is no reason not to pursue it.
So here’s an idea: combine Republican ideas about caps on pain-and-suffering damages with traditional civil rights law provisions allowing successful plaintiffs’ attorneys to recover their fees.
Critics of the tort system have long questioned the utility of pain and suffering damages because there is virtually no way to make them rational. Thus, jury awards of these damages tend to swing wildly from case to case, and theoretically, because the successful attorney working on continigency could always hit the jackpot, he or she will have an incentive to take a less-than-meritorious case if a win could result in high pain-and-suffering damages. For this reason, tort reformers have long advocated caps on such damages. California’s famous MICRA sets a cap of $250,000 of pain-and-suffering damages in medical malpractice cases, now indexed each year for inflation.
But because plaintiffs’ lawyers work on contingency, these damages are there to pay the lawyers, not compensate the plaintiffs. Thus, a pain and suffering damages cap essentially gets rid of meritorious cases as well. And because the cap is set so low, the attorney’s contingent fee starts eating into the client’s economic damages as well.
My proposal here is to combine a cap with allowing prevailing parties to get their attorneys’ fees, as civil rights plaintiffs’ lawyers have done for years, on the federal level since passage of the Civil Rights Attorneys’ Fees Award Act of 1976 (now codified at 42 USC 1988). It is also fair to give the judge discretion to award a suitable “multiplier” to the prevailing plaintiffs’ lawyer if the case was particularly difficuylt, well-litigated, or had public significance.
This would give defendants — and their insurance companeis — the certainty they say that they need, plus not provide the bizarre incentives that uncapped pain-and-suffering damages could entail. It would more effectively protect clients’ economic damages (perhaps it would be necessary to prohibit any contingent fees coming out of economic damages) and permit attorneys to take worthy cases that they believe have a strong chance of success on the merits.
I realize that none of this matters to Republicans or some conservatives, whose version of tort reform is essentially to let the loss lie where it falls, but intellectually honest conservatives and liberals might be able to generate consensus around a proposal like this — at least in some future where policy debate becomes intellectually honest.
Sounds like a great stand-alone bill. I’ve long been of the opinion that the winner in any court action should be paid their reasonable costs… Including acquitted criminal defendants. I can’t, off hand, think of ANY provision I’d like, that would be good enough to drag the other several hundred pages of this monstrosity along on it’s back, though.
I understand that the winning side recovering attorney’s fees is common in Europe. Supposedly the drawback is that it can make it risky for poor clients to sue, increasing the advantage the well-heeled already have in the current system.
On the other hand, I do think allowing acquitted defendants in criminal cases to recover SOME part of their fees is fair, although I think it should be capped at whatever the state would have paid for a public defender. Again, doing otherwise would provide an advantage to the well-off who can afford expensive legal help compared to regular folk. Paying the equivilent of public defender wages would be a big help to middle-class defendants who don’t qualify for public defenders but who also can’t afford Johnnie Cochrane-style dream teams. The partial subsidy provided by public defender rates culd make a difference in that cases and mitigate the chances of an unsuccessful prosecution still ruining the targeted defendant financially.
Reasonable, but Rs moan about malpractice suits not for a policy goal (in practice limits reduce neither malpractice premiums nor medical inflation) but to bash lawyers ala What’s The Matter W/Kansas.
Given the amount of junk science in med mal cases m(see, e.g., John Edwards’ entire career), there needs to be some disincentive to plaintiffs lawyers. So maybe some form of loser pays needs to be worked into your idea.
But med mal reform still would not justify the risk that Obamacare is going to be a disaster for those of us with insurance policies and doctors we like. There’s nothing in this bill for us and too many ways in which it could end up costing us money, quality of care, choice, or all 3.
Skimp on the bank presidents medical testing? Not a chance. Botch him up so he can’t work, and you’re liable to wind up replacing his $5 million/year compensation package for decades. Skimp on a retired music teacher’s medical testing? Well, you’ve gotta cut costs somewhere!
Not that you want to hurt any patient, but you gotta draw some lines. And they will. And do.
How about showing you have some way to limit the harm and the frequency of malpractice before you start whacking away at the only thing that creates a disincentive for it?
There have been a number of smart efforts to force doctors out of their omniscient, omnipotent pose and make them use the advanced technology noted for reducing mistakes in fields like submarines and nuclear power plants — they’re called “checklists” and “procedures.” Where adopted, they produce a remarkable drop in med mal suits by producing a remarkable drop in med mal. Made of win, wouldn’t you say?
Putting the cart before the horse — or the caps before the steep drop in negligent practice — only rewards the negligent at the expense of their victims.
Leaving aside the esteemed Prof. Bainbridge’s groundless fearmongering, his appeal to the narrow self-interest of middle-class people like himself who have good, secure insurance is highly revealing.
It is not necessary that “loser pays” apply to both plaintiffs and defendants, or equally to plaintiffs and defendants. Under federal civil rights law, a prevailing plaintiff recovers his attorneys’ fees almost automatically, whereas a prevailing defendant recovers them only if the plaintiff’s suit was frivolous. That rule serves the purpose of fee-shifting by encouraging civil rights suits but not encouraging frivolous ones.
“Leaving aside the esteemed Prof. Bainbridge’s groundless fearmongering, his appeal to the narrow self-interest of middle-class people like himself who have good, secure insurance is highly revealing.”
Yeah, suggests he actually has some desire to persuade people, rather than just spout rhetoric so he can feel good about despising them.
Why not scrap the whole thing, and go to something like the vaccine compensation system? (I don’t see any benefit to anyone in trying to determine what good medical practice is/isn’t in a lay jury.)
What we physicians need more than caps and loser pays, is an effective method to prevent innocent physicians like from routinely becoming defendants. See http://www.MDWhistleblower.blogspot.com under Legal Quality.
Speaking as a middle class person with good, secure health insurance (for the moment, anyway), I fail to see what’s so wrong with trying to provide for the health of myself and my family. If that’s “narrow self-interest”, then there are tens of millions of Americans, of all economic backgrounds, acting in a narrowly self-interested manner.
The best way to deal with Prof. Bainbridge’s junk science objection, though, would be a stricter approach to the admission of expert testimony, not loser-pays. I believe John Edwards tended to win his junk science cases.
Why not “loser’s lawyer pays? After all, who’s supposed to be able to recognize a frivolous case? The layman plaintif, or his lawyer?
Brett Bellmore says:
“Why not “loser’s lawyer pays? After all, who’s supposed to be able to recognize a frivolous case? The layman plaintif, or his lawyer?”
Brett, you’ve surpassed even yourfelf.
Actually, Federal Rule of Civil Procedure 11 authorizes federal courts to sanction attorneys for filing frivolous claims or defenses. The sanction may include “part or all of the reasonable attorney’s fees and other expenses directly resulting from the violation.”
On expert witnesses, the pioneer in making them primarily accountable to the court rather than the party hiring them seems to be Australia. http://www.fedcourt.gov.au/how/prac_direction20040319.html These rules provide for a dialogue between the experts. I don´t know how this really works out, but it´s definitely worth looking into.
Cut me some slack, Barry: I’ve got peripheral neuropathy from the chemo. How good do you suppose YOUR typing would be if you couldn’t feel the keyboard?
“Actually, Federal Rule of Civil Procedure 11 authorizes federal courts to sanction attorneys for filing frivolous claims or defenses.”
Yeah, it “authorizes” them to do it. But they almost never do. Lawyers are funny that way about sanctioning lawyers…
Jonathan,
I really think that advocacy of limits on pain and suffering awards is glib policy-wonk stuff that does not take into account the real consequences of malpractice. Think about what you would consider fair compensation for being paralyzed, or suffering brain damage that reduced your cognitive abilities. Think about it if the victim were your child. Are you really going to accept that a totally arbitrary cap on all cases is reasonable?
Surely there are better ways to get away from the lottery aspects. No-fault laws, perhaps, or even formulaic approaches to calculating the awards might work. Regardless of whether these are good ideas, it can hardly be beyond our ability to design a system that is both more rational and more equitable.
While I’m here, let me offer a point in support of Michael Kirsch. I’ve had friends who were physicians who were named as defendants even though they had nothing to do with the alleged malpractice, having seen the patient only for an unrelated, speciliazed matter. Yes, they were dropped in due course, but not without depositions, legal consultations, stress, time wasted, and so on. Not to mention whatever record was created of theior being named. The “sue them all and sort it out later” approach needs to be changed.
[...] Jonathan Zasloff on medical malpractice reform: “My proposal here is to combine a cap with allowing prevailing parties to get their attorneys’ fees, as civil rights plaintiffs’ lawyers have done for years, on the federal level since passage of the Civil Rights Attorneys’ Fees Award Act of 1976.” [...]
Another political reason to bash malpractice suits is that it promotes a myth: there is a simple, relatively painless way to solve the healthcare problem. It’s a myth, but as has been demonstrated (see “Welfare Queen”) the effectiveness of a myth does not depend on being factual.
I would also point out that the primary purpose for malpractice suits and punitive damages is deterrence: you don’t want providers cutting corners to save costs, and the uncertainty of punitive damages can do a good job of discouraging that.
An alternative here would be to require providers to provide information about outcomes of their medical treatments, so consumers and insurers could judge track records. It makes sense completely on its own as well.
JMG wrote, “How about showing you have some way to limit the harm and the frequency of malpractice before you start whacking away at the only thing that creates a disincentive for it?”
Agreed.
You’ve got doctors out there committing crimes against humanity(*) and essentially going unpunished.
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(*) Reference to one or two heart doctors out West (maybe N. California) who operated on (I think it was to stent) perfectly healthy people to rack up (IIRC) Medicare bills.
This is clueless. Do you have any idea how expensive it is for a plaintiff’s lawyer to mount a strong case in big-money litigation? The idea of taking such a chance on a weak case is absurd. Let’s see, I’ll spend $500 K on the 25% chance I’ll win, and a 2% chance I’ll get a really gigantic fee. What a shrewd investment.
On the other hand, if my chances are 50-50, and the party’s cannot settle, then it’s a case that should be litigated as a matter of social good.
The real costs of litigation is corporate defense attorneys doing everything possible to raise the cost of litigation regardless of how meritorious the case is — in fact, raising it more the more meritorious the case is. Everyone’s idea of what’s wrong is back-assward. Let’s see, which side spends tens of millions to advance its political agenda?
“On the other hand, if my chances are 50-50, and the party’s cannot settle, then it’s a case that should be litigated as a matter of social good.”
If your chances are 50-50, then half the time the wrong guy is going to win, meaning the “social good” and social harm net out at zero, leaving behind the dead weight cost of having had the litigation. Except, lawyers don’t see that as a cost, because it goes to them…
Brett,
This is only true if you assume that all verdicts perfectly reflect the facts and the blame. I rather doubt this, myself; I have no idea whether there’s an imbalance in favor of defendants or in favor of claimants, or even a system that manages to award judgments to the correct proportion of claimants but often to the wrong ones - but it would be truly naive to think that a 50/50 chance of winning the judge and jury over to your side corresponds perfectly to a 50/50 chance that your client is correct in their belief that they were mistreated - not to mention that it’s probably not possible to be absolutely certain whether the client is correct in this belief.