3 January 2004
Bruce talks about slapping a cap on damage awards in malpractice cases:
If a doctor commits a grievous error in your care you want to have the ability to receive compensation for that error. Do we really want to say that all errors are only worth $250,000 as one federal bill would have it? Think of your life and what its worth. Now think about the burdens your disability would have on your family should you lose your ability to work and care for yourself and you were only able to recoup $250,000 for that injury.
The drive for Tort Reform will not keep the insurance companies from looking for new ways to make a bigger profit. Remember that every business is a growth business. They just see paying out claims as a drag on their profitability and this rush to limit awards is a way to boost profitability at the expense of hurt people. They are punishing doctors as a way of putting pressure to get the legal action they want from politicians.
What we always hear about are the truly bizarre cases Cam Edwards talked about one this week on his radio show, some woman who suffered burns after spilling her coffee and sued Starbucks but using the man-bites-dog theory, I have to assume that these are the exception rather than the rule.
There are, indeed, too many lawsuits, and many of them are indeed frivolous; but the truly useless suits can be handled with a loser-pays system. And thinning out the docket is, I think, the most important "reform" that needs to take place.
The solution to high malpractice awards is simple: eliminate malpractice. The problem arises when you try to pin a workable definition onto the word, since medicine is at least as much art as it is science, and there's still a lot we don't know about everyday bodily functions. Sometimes all you can do is make an educated guess. I'd hate to think I could be sued for guessing wrong.
On the other hand, outside the medical realm, sometimes it's clear that bungling or malfeasance is at fault. Here's a comment from a page linked by Bruce, posted by Angry Bear, that cuts to the chase:
My first thought was, "if frivolous lawsuits are so rare...why is there such a vociferous tort-reform movement?" But then an answer suggested itself: the issue is probably not so much the awards themselves as the actions that prospective awards deter. For example, action X may not be profitable if there's a 1 in 100 chance of getting caught and having to pay $5 million. But if the cap is $250 thousand (with the same 1/100 chance of getting caught) then action X may be profitable. (X represents things like polluting or not testing for safety.)
I hadn't really thought of it this way before that tort-reform isn't necessarily about avoiding big judgments for existing actions, but rather changing the range and extent of activities that firms can profitably undertake.
Actions, conservatives are fond of saying, have consequences, and indeed they do. There's no reason that corporate entities should be exempt from the consequences of their actions, or to have their liability artificially limited, when individual persons are granted no such exemptions. The argument is made that numerous damage awards can destroy a company; I suggest that if a firm has actually done something to justify numerous damage awards, it may well deserve to be destroyed.