Instead of a hard cap make tort reform like this. Cost of Medical bills, plus the cost of lost wages to deal with medical conditoin and a certain percentage of the payments for the previous 2 for pain and suffering. Like if someone leaves a pile of eggs on the floor and doesn’t clean it up they get the say 12 grand it cost for hospital stays doctor visits and physical therapy + 20 grand for the lost wages due to hospitalization and rehab then say 20 percent of the 42 grand already rewarded for pain and suffering. Does this sound fair?
#1 by Dog Lover on February 23, 2010 - 3:15 pm
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It is not always that simple.
Briefly, if you don’t hold, especially large companies, responsible for their actions they have little incentive to make sure their product is safe. The fear of huge law suits keeps them honest.
#2 by Anonymous on February 23, 2010 - 7:26 pm
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Some states use this. Plus, this is also a formula used by the Supreme Court in calculating whether punitive damages are an unconstitutional violation of due process (basically, if punis are more than 9x the actual damages, you really have to prove that the defendnt was bad to recover).
The only problems with your formula are:
(1) Your taking the ability to determine damages out of the hands of the jurors who are there, reviewing the record and making the determination, and putting it into the hands of the legislature, using an “axe” instead of a “scalpal” to carve out the problem. Large verdicts simply are not problems in MOST tort cases… studies have shown that most jury verdicts are in the realm of “reasonableness” that something like your formula would espouse…. and if not, the parties can petition the judge to lower the award… or petition the court of appeals… or settle with the plaintiff to avoid an appeal.
(2) One thing you’ve forgotten is permanent impairment — like if the injury causes 50% loss of vision in an eye, or permanent disability of an arm, etc., that should be taken into consideration too…. that also affects ability to work in the future, which is an economic loss.
(3) There are some cases where you may have immense pain and suffering but not a lot of medical bills or lost wages. Let’s take an unemployed 16 year old kid who gets food poisoning at a restaurant, making him violently ill for 5 days. He has a horrible fever, vomits anything every 10 minutes. There’s nothing the docs can do but let the toxin pass through his sytem. Lost income? Nothing. Medical bills? a few hundred bucks. But a week of absolute horrible pain? Just because he’s lucky enough not have to pay out of pocket, his pain is only entitled to 20 bucks?
Or, better yet, let’s take a guy who gets hit by a bus. The injury affects his elbow, causing him to have orthroscopic surgery. He misses a few days off work, has a few thousand dollar surgery (which, by the way, his insurance covers and will recover that money from the tortfeasor once the case settles). However, for the rest of his life, he will have a dull pain in his elbow when he moves it more than 20 degrees. It will get worse and throb when it’s humid. He can maybe have a $100,000 surgery down the road, but that’s uncertain. So does the guy not get compensated for this permanent pain for the rest of his life? With this cap, how do you measure those damages?
(3) As I’ve mentioned, MOST of the medical recoveries are covered by insurance, and they just get reimbursed from the tortfeasor (or her insurer). So the injured party gets lost wages (if any) and pain and suffering. If the pain is absolutely limited as you say, what’s teh incentive for suing to hold the negligent party accountable? With lawyers’ fees going upwards of 40%, it would be economically irrational for an individual to go through all the hassle of a suit if there was effectively no recovery available. As a result, the person who’s most culpable (the negligent party) walks away scott free, and the victim just lives with the results of someone else’s negligence. THAT is when the system really breaks down, because the negligent party will CONTINUE to be negligent and harm more people in the future!
So now you see it’s very very tricky.
#3 by mr_crank on February 24, 2010 - 2:16 am
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You should not try to prevent frivolous lawsuits by giving a break to defendants who have been found liable by a jury and have exausted their appeals. It makes no sense. Why reward the people who are the worst offenders?
The need for tort reform is a “made up” problem by insurance companies and corporations. It is not a pressing problem or even a probem at all in most cases. It’s just the rich and powerful whining about the rest of us getting our day in court.
#4 by regerugg on February 24, 2010 - 4:07 am
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It sounds muddled to me.
#5 by Anonymous on February 24, 2010 - 4:52 am
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Fair for minor stuff but not the big stuff. If someone lost their entire family in some type of tragic accident, then gaging their pain and suffering on your equation would not be fair. Those type of things need a qualitative analysis depending on the circumstances. Other than, that, you have a nice model to go off of.
#6 by Gen. Stiggo on February 24, 2010 - 10:42 am
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And how does that help someone who is, say, crippled for life?
#7 by W W D on February 24, 2010 - 4:53 pm
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That might work in a few select situations, but it’s hardly reform. For medical liability, it would probably be better to remove it from tort law altogether. Most medical injuries, whether due to malpractice or not, do not get compensation, and medicine is simply too complicated for lay people to understand, the result being that a jury’s finding of liability has no relationship whatever with whether malpractice has occurred. It’s a complete crap-shoot, and multiple studies have always shown this to be the case. A new and completely separate system would work better. For general liability, there’s less of a problem, and if judges all had the good sense the majority have, there would be no need for reform. It’s probably the judicial system, rather than tort reform, that needs fixing.
#8 by Greatgra on February 24, 2010 - 9:13 pm
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Wow Drake! I have never heard of the Tort Reform and was wondering why, so I looked it up in Wikipedia.
For those who have never heard of this term, it is a reform used in the U.S.A. and means just this:
Damage, injury, or a wrongful act done wilfully, negligently, or in circumstances involving strict liability, but not involving breach of contract, for which a civil suit can be brought.
So now we know.
Now, having planted the meaning of the reform in my brain…….I have forgotten what the question was…..sorry.
#9 by ShadowCa on February 25, 2010 - 12:52 am
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Most of the Money from Torts go to the Doctors, the Courts and attorneys..the client gets next to nothing that’s why it is so high, so they can be compensated fairly…No amount of money can actually compensate for grief, mental anguish and irreparable physical harm.
#10 by Gregory G on February 25, 2010 - 6:24 am
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No this plan does not have a punitive enough hook to it. Under this plan economically it would be better in some instances to lose the law suit rather than pay the costs of improvement for safety of an item or procedure.