Posted on 10/12/2009 6:07:32 PM PDT by Born Conservative
WASHINGTON (CNN) – A moderate Pennsylvania Democrat came out strongly Sunday against the possibility of imposing a cap on medical malpractice damages as part of comprehensive health care reform legislation currently under consideration in Congress.
“I don’t think the way to go is to limit the rights of Americans who are injured by negligent or intentional conduct,” Pennsylvania Sen. Bob Casey who is a member of the Senate Health, Education, Labor and Pensions Committee said Sunday on CNN’s State of the Union.
“A $250,000 cap on damages, in my humble opinion, is insulting to our system of justice,” Casey also told CNN Chief National Correspondent John King, “That is not justice as we have come to understand it.”
(Excerpt) Read more at politicalticker.blogs.cnn.com ...
Ping
Casey misspoke, I fixed it for him.
A doctor whose mistakes led to a person becoming a vegetable would be causing a lot more than $250k in damages -- that would be eaten up by caregivers and such in just a few years.
A better approach would be expedited repeal and review of damages that are considered to be excessive.
A better way to do the cap would be as a percentage of economic damages.
</sarc>
The projected cost of the caregivers ought to be counted as economic damages... if they are not, that is a separate item to be addressed.
Normally nothing is paid till all appeals have played out anyhow. Cutting short this stringing-out process would be a good reform.
The “cap” is a disaster in Texas. If a Doctor kills your loved one you get a lousy $250 k. What a joke. Guess how much health care costs have declined??? ZERO BABY but the doctors self insure and are getting filthy rich and moving to Texas by the THOUSANDS!!
Nobody has *ever* proposed a $250K cap on damages -- I've heard proposed a $250K cap on punitives -- damages that aren't damages (actual loss by the plaintiff) but meant to PUNISH the defendant -- or intangible damages -- i.e. 'hurt feelings' or 'pain and suffering' which is over and above any actual damages such as lost earnings, medical expenses, rehabilitation costs, etc. Another proposal I've heard is that any punitives above $250K go into a state fund for rehab hospitals, etc.
This is only a cap on the intangible "pain and suffering" damage award.
Actual monitary damages, and the costs to treat them, are separate.
Punitives, maybe. Or 'pain and suffering'. But not 'actuals' or 'specials'.
$250,000 cap is what county hospitals have... oh crap they’re gonna turn every hospital into a county hospital..
I support paying for the victim’s medical costs to fix diagnosis, cost of lost wages, and post medical care bills, but cap the crazy unquantifiable pain and suffering costs.
Casey is tying his hopes for reelection to Obama’s popularity. He is an Obama Butt Boy...
The unspoken secret is that most attorneys will absorb 1/3 of recovery. So SOME P&S (though not astronomical jackpot percentages) is needed to be sure the person still is not impoverished. P&S is not the same as punitive, by the way.
Actual monitary damages, and the costs to treat them, are separate.
The Obama guy is lying intentionally and the SRM is going along with his lie.
This is actually the way defendants and their insurers have settled cases for years. When I was actually trying cases, the rule of thumb was "generals are 3-4 times specials", but that may have changed.
Of course, a lot depends on how clear liability is. I think the excessive cases that really get people torqued up are the ones like John Edwards used to try, where liability is really, really hazy but you have a sympathetic plaintiff.
Three to four times specials ought to cover atty fees and expenses easily.
LOSER PAYS.
Monetary damages, I believe should be covered. Punative damages, no. They should be severely limited. If the doctor acted legally, I can’t see there being but a minimal punative damage applied. If he acted illegally, then there’s the opportunity to seek justice through the criminal system.
That is true. There should need to be a good reason to go beyond, such as the anticipation of excruciating physical pain in the future linked to the injury.
Often it is not a “who wins” question but “how much.”
These legislative lawyers seem to think it sacrilege to limit our right to go to court but denying us a right to go to a doctor? That’s just something we’ll have to learn to accept.
Who ever said that politicians make sense.
Once you require plaintiffs to prove specials instead of just riding on intangible damages, you'll see a lot of creative work from the experts. But at least there will be SOMETHING for the jury to hang its hat on, rather than John Edwards bloviating on about channelling a fetus in utero --
I think they are reporting this wrong. The Caps I know of are caps on pain and suffering, not actual damages.
But here is an idea. Why not limit lawyer compensation to $100/hr. Surely in our new era of state mandated compensation, $100/hr isn’t too big of a cut for our parasite class is it?
A relatively poor or working class plaintiff will be completely frozen out of the system because nobody will take his case -- since he hasn't got any money to pay the legal fees and there's always the CHANCE that he might lose.
I think you'd have to have something like the current abusive litigation statutes, but with a lower threshold, so that a loser doesn't ALWAYS have to pay, or pays on a sliding scale. Otherwise you couldn't bring an action unless you had enough money to pay your legal fees in case you lose . . . .
Alternatively, something could be created like the current workman's comp system, where liability is conceded but your damages are severely limited. Of course, in Britain they already have a system like that, and folks who are severely injured get VERY badly treated.
This story is basically a Casey press release in the guise of a news story, down to the billing as a "moderate."
You’ll have to get the plaintiff lawyers to itemize their damages in that case, and they won’t want to do it. That’s why they have a contingent fee in the first place, didn’t want to keep all those billable hour timesheets . . . .
Pain presents a conundrum when effective treatment requires flirting with opiate addiction or opiate tolerance. (Assuming Uncle Sam doesn’t shut the doctor down for prescribing “too much morphine.”) Then you have to wrestle with the question of how much pleasure will compensate for how much leftover pain. I suppose that could be boiled down to a special too, but not scientifically.
Unfortunately, 'hedonic' damages (pain/pleasure) have never really been justly awardable because they're just unquantifiable. Some injuries just can't be compensated at law.
-- while a lawsuit is pending, every plaintiff is suffering considerable pain, whether there's a physical cause or not.
And they're not necessarily faking it. A lot of pain is 'in your head' (I know, because when I realized I had 20-30 minutes to go in labor instead of 8 hours, I said, "Hey - I can do this!" and it stopped hurting. I mean, completely.) So long as the litigation is ongoing and the plaintiff is being constantly reminded of the injury and the injustice of it all, he hurts, and he believes that he hurts. Once the litigation is over, with a verdict or a settlement, he feels much better. I did some plaintiff's work along the road, and all of us felt much better when the case was over, but especially the guest of honor.
Cr*p Hack Casey: “A $250,000 cap on damages, in my humble opinion, is insulting to our system of justice.”
English Translation: “A $250,000 cap on damages, in my humble opinion, is insulting to the yacht and Rolls-Royce aspirations of crooked shysters.”
They need a diminishing return plan: 40% of the first 250K, 30% of the second 250K, 20% of the next, etc.
It would then be capped at a certain amount or percentage.
Psychological studies can answer some hedonic questions. (e.g. what would you trade for regaining a lost leg if it was your fault). Doing this with integrity is another matter.
oh please.
That's not my experience at all.
The first problem (that you didn't address) is getting a lawyer to take the case. No matter HOW strong the case, there is always a hypothetical chance of losing, and the lawyer WILL NOT take a case from somebody who can't pay. He has payroll to meet and expenses, and unless he can get a contract from the client saying that they'll cover up to $X if they lose the case, that case will never get representation.
In any event, strong cases sometimes lose - usually but not always because of an unsympathetic plaintiff or a sympathetic defendant (what we used to call 'six nuns in a station wagon'). Sometimes you get a really rotten jury, sometimes an unsympathetic judge. I've seen it happen -- in BOTH directions.
And it's not really a systemic problem that can be cured, because despite all the entrail-reading we all do on voir dire, a rogue juror (for either side) will slip through. I myself was a rogue juror once, but that's a long story (I asked the lawyers after the verdict, 'WHAT were you thinking putting me on this case?' They said they had other jurors they needed to strike worse than me. No they didn't, but there's no way to tell that beforehand. Much of jury work is still black magic and prophesying in the dark.)
The cap would be on punitive not compensatory damages. As much as money can do, the person would be made whole, but the open ended lotto of punitive damages would end. And something should be done as for class action suits,where 10,000 people get 10 grand each and the lawyers split 4 million.
Casey... How about some real reform. Make ALL malpractice insurance a rider that the patient has to buy.
Yeah, that would be a problem. Maybe a threshold question for the judge, along the lines of the Daubert hearing on expert witnesses?
Wait, so if the government takes over healthcare, will the federal government be on the hook for malpractice? That means the federal government can be sued without a cap?
Wonder how long that will last?
Of course "moderate" Casey (who voted NOT to defund ACORN) is friends with his Democrat buddy Arlen Sphincter, whose son is a malpractice shyster in Philadelphia whose web-site boasts of all of the millions they've raked in. "Moderate" Mr. Casey isn't just any Democrat supporting the current lottery system. He's got plenty of reasons. Not surprisingly PA is one of the worst states for malpractice, and also not surprisingly is hemorrhaging doctors.
Just once, when they are complaining about how the plaintiff won’t get enough money, I’d like to hear them asked why they are taking 40-50% of the settlement away from such a deserving, desperate person.
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