I would favor the following: 1. elimination of punitive damages, except in very limited findings 2. attorney's fees and all costs to prevailing party 3. limiting pain and suffering to no more than one-half of compensatory damages 4. pre-trial relief for plaintiffs who can show a high need for treatment and a high probability of success, such relief in the form of medical care and treatment, as needed. Cases are made more serious because the injured cannot afford decent care - care which would help diminish the loss to the person.
This is too logical. If you are a member of the Legislature, how is this going to get you "love" from the lobbyists?
After disagreeing with most of your posts on this topic, I find myself agreeing wholeheatedly with this one!! I'd add that there should be some guideline/schedule/cap for attorney fees to ensure the lawyers are appropriately compensated, but not unreasonably so. I too HATE the contingency system. I understand it's attractiveness to a plaintiff who cannot risk racking up legal fees with no assurance of a settlement, but too often the contingency fee results in outrageous fees to a lawyer for his/her time and risk. I was quite surprised by your point #3 given your previous posts as your suggestion seems to be in the same spirit as the proposition. In fact, it goes further as to equate pain and suffering to a function of compensatory damages. I'm not sure that caps on damages for pain and suffering should vary based on compensatory damages. This implies a high earner is eligible for more 'pain and suffering' compensation than a moderate earner for the same discomfort.
the dirtiest secret of the insurance industry is that they LOVE the fact that plaintiffs can't afford attorneys and have to get lawyers to represent them on a contingency fee basis. That means that the insurance side of the case gets paid every month. Meanwhile, the plaintiff's side goes further in the hole every month - for lost wages, medical paid out, experts, court costs. The plaintiff and his or her attorney doesn't get paid for a long, long time. This makes time the ally of the insurance/defense side. Most lawyers would much, much rather work hourly than on a contingency. You see, your med mal plaintiff doesn't get attorneys fees awarded, so he must pay his attorney out of his recovery or settlement. Take out the fees, the costs, the medicals, and you have less than half the amount awarded. And of course, the defense side is pissing away money, too. I favor some of the approaches Canada has to cases, which I may discuss further some other time. They assess attorneys fees based upon the settlement offers. If I'm defense and I offer $500,000, and you want a million, and the ruling is $500,000, you pay my attorneys fees. If the ruling is a million, I pay your attorneys fees. That's just one wrinkle that requires attorneys and parties to realistically appraise their cases, and to make a serious and good faith attempt to settle each matter. There are a number of changes that could result in smarter handling of med mal and personal injury cases, but they involve both sides of the docket being smarter and more reasonable.
Explain it to me like a 4 yr old If the doctor does something to me .. that effects me for the rest of my life . . . i.e. .. blinds and cripples me. . . . something that will cost me alot of money in special equipment and further medical bills. . . . . . He only has to pay a SET amount .. . . even though my future bills maybe beyond that amount? Is that a honest understanding of the bill? Rocket River
The only thing I disagree with is number 3 (unless that does not include punitive damages). If you don't want the money to go to the plaintiff, could we give it to a medical charity or a trust fund to get treatment for patients while their cases are being litigated? I think the jury and the judge have a right to decide how much pain and suffering someone has gone through and use that to punish the party that is at fault. Punitive damages are supposed to impact the party that is at fault, and a one size fits all approach will not do that. If you are talking about pain and suffering as a separate issue from punitive damages, then the above applies to punitive damages.
My view of Prop 12 is a cold political look at what is happening, who is behind it, and why. My suggestions on addressing some of these serious problems have something for everybody - tradeoffs that make them more acceptable. Cases that should never be tried spiral out of control, as both sides get more entrenched in their thinking, both sides detach a little from reality. Then the expenses and attorneys fees sky rocket, and before you know it, it's out of control: it can't be settled and has to be tried. Then one of the parties really gets hurt, because juries tend to pick a side and go with it. That often means injustice for one side. There needs to be a limit on pain and suffering. It's too big a wildcard. Punitives are more under control, but I don't like them because the money doesn't go to the class of similarly affected persons. We need to remove the wildcards that can end up with damages which are clearly excessive. ------- Guys, cases should settle, almost always. Cases settle because lawyers can assess the value of the case, and they can persuade their client to settle at that value. It is imperative that you limit the number of variables to achieve that. If the insurance side KNOWS they will lose on liability, they know they will be paying some damages, attorneys fees, and costs (under my proposal). But they will also know that they can't get hurt badly with pain and suffering or punitives. This certainty increases the probability of settlement. But having punitives is like having a 20 foot goal in basketball worth 20 points. It would kind of overwhelm the rest of the game, wouldn't it?
Not completely. Anything that you can PROVE is a monetary damage like lost wages, medical expenses, etc. is a totally different issue. This allows the legislature to set caps on non-economic damages like punitive damages and pain and suffering.
I share your disdain for much of what contingency means, but the 'other' part concerns me. Call it the 'Brockovich' Benefit. Large corporations have huge sums available to them to hide mistakes and fight legal battles. W/o some form of contingency, the public loses an excellent, motivated 'investigator'.
I see your point. I do believe that most of this stuff should be settled, but wouldn't it be just as good to set the bar on punitives so high that only truly aggregious cases merit them? I believe, for example, that if a hospital covers up a doctor's malpractice, they deserve to be punished. I would agree with linking punitives to the economic damages, but not at 50%. Maybe, if pain and suffering were warranted (because the insurance company denied a claim of someone who could be treated for example) then they could award 100% of the economic damages for that. If punitives are necessary, the judge decides how much and the plaintiff doesn't get it. The money is given to a medical charity or an agency to see that people suing get care while their cases go through the system. FF, if you don't mind, could you send me an email? I have a question I would like to ask you offline. andyjmoon@hotmail.com
I have no solution! But the Brokovich case disheartened me further about contingencies. Erin B received more for her troubles than many of the people who were seriously hurt!! (while there is some justification for the big fee here, I suppose, because the outcome was very uncertain, the potential windfall for the lawyer was just too big IMO). My beef with contingency fees stemmed from knowledge of auto personal injury cases. In many there were clearly damages, a certain settlement was virtually assured, and yet with the contigency, the lawyers ended up earning astronomical hourly fees. Rates they would have been embarrassed to quote publicallly. And their risk was minimal. And FF is completely correct about the insurance companies compelling people to get contingency lawyers. In the above auto personal injury cases the insurance companies bullied the injured until they got lawyers!! It's a mixed up system.
Mr C, ALOT. They lose their licenses and move to another State. Until the Medical industry provides us with any type of quality indicators, why should we let them off the hook? When atleast 50,000 -100,000 people die due to medical negligence each year, and many more who survive are impacted ofr life, why let them off the hook? That many people still die needlessly, many States still have no cap, yet the situation still has not improved. Will reducing the costs of error to the providers incentivize them to improve? Be aware that only a small fraction of serious medical errors are ever even identified as such by patients. The medical industry gets to hide behind 'peer review'. You can have an anesthesiologist fall asleep during a simple ottits media operation on an 8 year old boy, the boys dies, then the hospital tells the family that he died from a rare reaction to the anesthesia. The hospital sent it to peer review, so no medical workers associated with the case could tell the family the truth or their careers would be over. (One did, anonymously) Of those that are identified as error, a small percentage appear to be successful in court. If you are wronged, you must find a specialist...a doctor... to go to court with you. That's not always easy. We have a neighbor who was mentally awake during a surgery, but the other two drugs (that immobolize you) worked fine. She cannot go to court because no attorney will take the case because no doctor will testify for her.
bnb, I understand, but what would those people have rec'd w/o Brockovich? How many cases do contingency lawyers who are trying to battle wrongs by major corporations lose and get nothing? Again, I agree on the disgusting aspects of contingencies, but we shoudl be careful when trying to fix it. Same with the caps.
I'm going to vote NO because it cancels out F.D. Khans vote! j/p If someone gets hurt and can't keep doing their job.. they deserve more money than what any cap should be. Screw the insurance companies. Legislature shouldn't be allowed to set caps on punitive damages and pain and suffering. I'm voting no... my sister is voting no.. my bro-in-law is voting no.. my grandmothers are voting no.. my mom and dad are voting no. NO NO NO NO NO NO NO!
The percentage of Americans who actually vote, be it in local, state or national elections, keeps going down every year, with rare exceptions. The people who arranged this election know that. They count on it. And it wasn't good enough for them to wait for the lousy turnout we'll see in November, oh no... they had to ensure the lousiest turnout possible. And they'll get it. In Europe, in countries that some today find fashionable to disparage, they regularly have far higher turnouts for elections. In many respects, we invented modern democracy. I think that can be argued easily. But people here are opting out. They are subverting the democratic process by not bothering to vote. By saying it doesn't matter. By saying, "Our side will lose anyway so what's the point?" or, "Our side will win, so why should I bother?" All I can say is, if you don't vote, you shouldn't complain later if things don't turn out like you wanted... or if they did, you shouldn't thump your chest and talk about how you helped bring it about. For or against, get out and vote. The Europeans do. It's time for Americans to rediscover what we preach to the rest of the world. Democracy is a gift we have and have inspired others to emulate. Let's not lose that gift and the freedoms we still have. Vote. (I'll get off my soapbox now... thank you very much. )
I don't hear anybody disparaging the good guys, like Spain and Poland. I only hear people bashing the filthy Frogs and crappy Krauts. What is wrong with that?
