Wampum

My nephew has PKU. He was tested twice - 24 hours and a followup test 2 weeks later. The followup is the more important as the first can yield false positives.

As for the damage caused by untreated PKU - profound retardation by the age of 6 months if the condition is of the 'classic' state. Scary when you think that my nephew's pediatrician ALMOST didn't conduct the two-week followup test and he's such a bright, beautiful and healthy boy.

My first thought was, "if frivolous lawsuits are so rare that they have to lie, then 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 poluting or not testing for safety.)

I hadn't really thought of it this way before--that tort-reform isn't necessarily about avoiding big judgements for existing actions, but rather changing the range and extent of activities that firms can profitably undertake. Given this endogeneity, more successful lawsuits against firms, but with smaller awards, could be an unanticipated cosequence of tort-reform.

Interesting post.

AB

How about removing the trial lawyers from the funding side of the Democratic Party. I can't get much past that point when looking for root causes for dorking with torts.

This isn't federalizing putting a cap on PI claims arising from Three Mile Island, where behind some of the drapery there lurks a strategic weapons program. There are no compelling reasons of state.

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 poluting or not testing for safety.)

Exactly. Given that personal injury lawsuits are often the only effective means of holding American corporations accountable, tort reform is actually regulatory reform.

Want to reduce the number of personal injury suits? Then have safety standards enforced by adequately funded government regulators rather than juries, and institute national health insurance so nobody will have to sue to recover medical costs. I won't hold my breath waiting for big business and the medical industry to support these things, though.

The medical malpractice sum of $4 billion a year, does that include settlements? What about legal fees? I have the feeling that the bulk of the expense is actually legal fees by the lawyers representing the doctors and hospitals.

Don't miss the political slant here. Just like unions, trail lawyers need to be defunded because they are big threats to the GOP.

Translation: "rare disease" = "a disease for all newborns have been routinely tested for several decades".

I don't know how long PKU testing has been routine, but it was when I worked in the field in 1979-1983. With newborns PKU's were always done.

PKU testing is one of the many great triumphs of public health. But many conservatives are adamantly opposed to public health, which sounds like it's socialistic -- because it is.

Tort deform is an industry-sponsored effort to shift the costs of injury from those who can best prevent it to those who suffer as a result of the negligence of others. Tort deform advocates talk about "frivolous lawsuits", but almost invariably their "reforms" are designed to affect only the most meritorious suits, where damages are overwhelming.

Damages caps don't discourage frivolous suits - instead, they ensure that the most severely injured will be undercompensated.

I've seen Evan Thomas perform in close quarters twice at Harvard's Shorenstein. He struck me as particularly slick and oily. Very smart but also very politic in what he says and how he answers questions. He is a master of evasion.

Too bad that he is the grandson of Norman Thomas, the perennial Socialist candidate for President in the 30s and 40s.

"Tort reform" is all about not just limiting liability for corporations but eliminating it. Note the specific exclusion of liability for MBTE manufacturers or gun manufacturers or pharmaceutical companies for some vaccines they make at government bequest. The idea is to make remove all liabilities from large corporations as the idea is to remove all taxation from unearned income. This is late-stage capitalism verging on corporate feudalism - wholly owned consumers. Pets or meat?

This is just a rehash of Angry Bear's comments. Name the source, if you can.

JACK (V.O.)
I'm a recall coordinator. My job was to apply the formula. It's simple arithmetic.

JACK (V.O.)
It's a story problem. A new car built by my company leaves Boston traveling at 60 miles per hour. The rear differential locks up.

JACK (V.O.)
The car crashes and burns with everyone trapped inside. Now: do we initiate a recall?

JACK (V.O.)
You take the number of vehicles in the field (A) and multiply it by the probable rate of failure (B), multiply the result by the average out-of-court settlement (C). A times B times C equals X. If X is less than the cost of a recall, we don't do one.

Next to Jack, a chubby, middle-aged LADY gawks at him, appalled.

LADY
... Which ... car company do you work for?

JACK
A major one.

[Editied from the original for brevity's sake.]

Small wonder they'd like to minimize variable C if possible, eh?

When I first read the list of urban legend frivolous lawsuits, I knew there had to be something more to the story. Indeed, when presented with a reader's digest version of the lawsuit, the silliness of which appears to speak for itself, one must wonder what was left out? If this lawsuit is so obviously ridiculous that there mere description of it makes it so, then why did 12 jurors conclude otherwise? Either the story is false, or the story is incomplete.

Similarly, these same idiot jurors who award such unwarranted vast sums of money for unworthy claims are also presiding over criminal trials. They, quite literally, sit in judgment on the issue of life or death. Yet the overlap in the constituency that seeks "tort reform" with that seeking to preserve the death penalty is considerable. How can one reconcile that the juror who cannot be trusted to adequately assess damages for corporate malfeasance can sentence a man to death?

I've been threatened with lawsuits by the most litigious motherfucker in show business -- and I'm still here!

Actually, there are some problems with the Volunteer Protection Act. It only bars liability for negligence, which means a lot of cases will be filed as gross negligence claims instead (with a higher standard to meet, true, but that might not matter if you have a defendant so flustered by the thought of being sued or eager to make it go away that they just take the first settlement offer they get.

And to be fair to the guy in the report who says that the insurance companies said that they don't settle frivolous claims to make them go away because their credibility's at stake ... well of course if you ask them they'll say that! Just like the Reagan Administration said it didn't negotiate with terrorists, either.

(To be fair, there is an independent study done in NJ in which it was found after reviewing hundreds of malpractice cases at insurance companies that the insurers settled only when their own doctors told them that malpractice had actually occurred. That might better make their point).

But the greater point remains that Americans sue in these cases because they don't have the sort of certainty over their medical coverage that citizens of say, Canada, do (and funny thing there ... we once read some conservatives attacking single-payer by pointing out that in Canada, malpractice suits are still much harder to win because doctors are still less willing to testify against each other than they are here, and class-action suits against the provincial health plans are not permitted. Funny how the things they most deplore about the U.S. system suddenly become virtuous when faced with an alternative that doesn't reify the free market.

The most dismaying thing in all this is Zuckerman’s flack’s response in the Kurtz column. Basically, she says that even though the specific examples he gave were total fiction, they probably wouldn't retract them because a) other papers had reported them already and b) they served a greater “truth.”

With media like this, no wonder people believe urban legends over anything they read in the paper.

When I first read the list of urban legend frivolous lawsuits, I knew there had to be something more to the story. Indeed, when presented with a reader's digest version of the lawsuit, the silliness of which appears to speak for itself, one must wonder what was left out? If this lawsuit is so obviously ridiculous that there mere description of it makes it so, then why did 12 jurors conclude otherwise? Either the story is false, or the story is incomplete.

Case in point: the McDonald's coffee lawsuit.

Short version: Woman gets millions from McDonald’s after spilling hot coffee on her lap. What an idiot!

Long version: Coffee was nearly boiling because McDonald's was advised by its coffee consultant to serve it at 170 degrees (as opposed to home brewed coffee, usually 130-140 degrees). The machine's maker testified that it can sometimes go hotter than that, and McDonald's admitted that on that day they had it cranked up higher than usual.

The woman was elderly, put the coffee between her legs (her nephew was driving) and it spilled when they stopped abruptly after pulling out of the drivethru. A burns expert testified at trial that the continued exposure to the nearly-boiling liquid now all over her pants more than explains why she got third-degree burns requiring skin grafts and a hospital stay.

They sought some compensation from McDonald's, which either wasn't interested or didn't offer anywhere near enough. They filed suit.

It comes out in discovery that McDonald's prepares its coffee this way not so much because it sucks as because they believe that people, especially those who buy in the drivethru, will take the coffee home before drinking it, giving it time to cool. (Can you hear the jury snickering already?).

But then they find that McDonald's has market research showing that, whatever they think, people actually do tend to drink the coffee almost as soon as they buy it ... yet there was no change in the coffee policy.

Then an executive testified that McDonald's had, in fact, paid out several million in claims because of this piping hot coffee each year ... and yet had no plans to change things.

Anyone still surprised at the verdict? This is all on the ATLA’s website.

You forgot to mention this tidbit about Ryan Warner (from Public Citizen via Lean Left):
"When telephoned at his place of employment, the Warner Insurance Agency in Page, Arizona, Ryan Warner reported to Public Citizen that the injury in question occurred two years ago in 2001 and as of this date he has not been sued."
That's right, Warner works for an insurance agency that bears his name. Real neutral. Why didn't they get a man-in-the-street opinion from John Edwards?

Universal health care would reduce the number of liability lawsuits. Often the claimant, who may be to some degree responsible for an accident, sues just to be able to pay the medical expenses. One party's liability insurance simply substitutes for the other's lack of medical insurance.

My daughter has PKU. Phenylketonuria is a 100% manageable condition if it is detected within the first three weeks of life. That anyone should have to suffer the adverse effects of PKU in this day and age is not just unthinkable, it's criminal. The doctors and health care centers involved in this case deserved to have the pants sued off them.

I noticed that this Newsweek article had two main and nine contributing authors. It makes my blood boil that not one of them had the journalistic integrity to learn the facts behind this case. I'm sure if it had been any of their sons or daughters who had been born with PKU and not treated, however, it would have been a different matter entirely.

The tort reform movement is yet another attack on American democracy. The fact that anyone can sue anyone for any reason at any time in our society empowers the weak and keeps the strong as honest as possible, so it's no wonder that the Powers That Be have lined up solidly behind the issue of tort "reform".

The cliche that we are a more litigious society than before (and that somehow this is a bad thing) is just that, a cliche, and yet you hear otherwise reasonable people expressing their outrage over such high-profile cases as the McDonald's coffee scalding. We are told time and time again by the right-of-center pundits that Americans know nothing about personal responsibility and accepting the consequence of our actions, while at the same time they publicly deride any attempt to make corporations or other large powerful entities answerable for their negligence. That they can hoodwink the American public out of one of the most powerful tools a democracy has at its disposal with second-hand anecdotes and glorified urban legends is just plain sad.

(And that they should misrepresent my daughter's condition in the process of doing so royally pisses me off!)

Heh, Fight Club.

Fabrications, according to snopes, but it also includes this section in their article, which the ANTI-tort reform people here are trying to hide:

Though the cases described in the e-mail are fake, real lawsuits of equal silliness can be found in abundance. An equally impressive list could easily have been compiled by anyone with access to a news database and a few moments to spare. For instance:

In March 1995, a San Diego man unsuccessfully attempted to sue the city and Jack Murphy Stadium for $5.4 million over something than can only be described as a wee problem -- Robert Glaser claimed the stadium's unisex bathroom policy at a Billy Joel and Elton John concert caused him embarrassment and emotional distress thanks to the sight of a woman using a urinal in front of him. He subsequently tried "six or seven" other bathrooms in the stadium only to find women in all of them. He asserted he "had to hold it in for four hours" because he was too embarrassed to share the public bathrooms with women.

A San Carlos, California, man is suing the Escondido Public Library for $1.5 million. His dog, a 50-pound Labrador mix, was attacked by the library's 12-pound feline mascot, L.C., (also known as Library Cat).

In 1994, a student at the University of Idaho unsuccessfully sued that institution over his fall from a third-floor dorm window. He'd been mooning other students when the window gave way. It was contended the University failed to provide a safe environment for students or to properly warn them of the dangers inherent to upper-story windows.

In 1993, McDonald's was unsuccessfully sued over a car accident in New Jersey. While driving, a man who had placed a milkshake between his legs, leaned over to reach into his bag of food and squeezed the milkshake container in the process. When the lid popped off and spilled half the drink in his lap, this driver became distracted and ran into another man's car. That man in turn tried to sue McDonald's for causing the accident, saying the restaurant should have cautioned the man who had hit him against eating while driving.
Although the cases cited above were all eventually dismissed, they still managed to work their way to the highest levels of our court system. When we hear such stories, it's hard not to be rabidly in favor of tort reform -- these kinds of cases make it appear that the idiots have taken over the asylum and only the rapid institution of some rules is going to bring things back into a semblance of sanity. Yet this solution is not all skittles and beer; many see such changes as potentially denying those in need of legal remedy their day in court and refusing them their right to be heard. The cap on jury awards is also viewed by some as unfair to the seriously injured, who may well require a large sum to afford the cost of living with whatever disability someone else's negligence or recklessness left them with. Capped awards are also scant deterrent to large corporations who could easily afford the judgements against them and therefore have little reason to mend their ways. Big Business is poised to benefit under tort reform in that it will no longer need to fear the courts.

Anon,

Yep, the key word in your post is the multiple incidents of "unsuccessfully." It's a damned shame that our legal system turns ridiculous suits into losers.

There's a fellow that writes for the excellent legal website Findlaw named Anthony J. Sebok that has written some really excellent articles about tort reform in the US. His most recent article concerns the Newsweek article:
http://writ.news.findlaw.com/sebok/20031215.html

All of his articles provide fresh perspective and key information in a debate that has become absurdly politicized.

You seem to have forgotten some information.

Such as the breast implant lawsuits that drove several companies into bankruptcy, even though the overwhelming consensus of the scientific community is that breast implants show no statistically significant immune system effects. (The real risk of rupture and scarring is not litigible, because patients are fully informed about it before they undergo the procedure.) One could go on for pages listing the lawsuits in which juries with no scientific background awarded juicy verdicts to plaintiffs based on a) the relative sympatheticness of the plaintiff and b) their completely uninformed opinion on whose expert gave a better lecture.

Or the fact that the temperature McDonalds kept its coffee at is . . . lower than that maintained by common home coffee machines.

The jury award is generally cited as the undiscounted value, not the NPV. Citing it thus is no more misleading than citing it your way . . . they chose the argument that best fit their case, just as you chose the one that best fit yours. It's much like, for example, choosing a dollar figure for litigation costs that includes only verdicts, when something like 95% of cases settle out of court.

There is a real risk to Ob-Gyns that they will be slapped with damages for children they didn't hurt, which is why their medmal insurance is so breathtakingly expensive. It's completely understandable, from the jury's point of view -- faced with parents who had a horribly crippled baby, I'd be tempted to hand them a wad of cash too, regardless of who's fault it was.

Unsuccessfully litigated lawsuits aren't free to the defendant. They cost an immense amount in legal expenses and organizational distraction, as anyone who has ever been at a company with a major lawsuit pending can tell you. They also cause a great deal of unhelpful prophylactic behavior. And physicians, contrary to your assertion, are much more likely to base this on knowing their colleagues who have been sued -- I'm told that the physician who has not been involved in a lawsuit, at least tangentially, is a rare bird indeed -- than on what they read from Stuart Taylor. Next time you go to the doctor, ask him how many lawsuits he's been involved in, and how many of his colleagues have been sued. The answer will shock you.

Jane's wrong--at least, about coffee temperatures:

McDonalds also said during discovery that, based on a consultant’s advice, it held its coffee at between 180 and 190 degrees fahrenheit to maintain optimum taste. He admitted that he had not evaluated the safety ramifications at this temperature. Other establishments sell coffee at substantially lower temperatures, and coffee served at home is generally 135 to 140 degrees.

Sure, lawsuits are expensive: but the most popular remedy--the smothering one-size-fits-all cap on all damages no matter what--ought to be utterly anathema to anyone who otherwise espouses individualism or liberty, to say nothing of the responsibility we all apparently like to find wanting in individuals--but not so much in more collective enterprises. (At least, ones devoted to the almighty profit.)

--My "Stella" post that Dwight links to (thanks, again!) about Stella and McDonald's and "frivolous" lawsuit awards that are utter fabrications (I, too, spit at Zuckerman's flack's regard for the truth) is far and away the most popular post I've ever made--not a week goes by but that someone embroiled in an argument re: tort deform doesn't link to it to prove that hey, you know, that crazy McDonald's lady really did have a case, dammit. Always makes me feel like I've done some little good in this big bad blogosphere.

Kip, you feel that way because you havemade a difference.

Jane, if the examples in question are all unsuccessful and/or pending lawsuits that don't received a litigated award from a judge or jury, then why are tort reformers pushing for caps on awarded damages?

By the way, could we actually see some of these "pages and pages" of cases where juries were argued into massive awards because of bad scientific evidence, without any other mitigating factors?

On a local level, these exaggerations are even worse. The tort reformers know they can get away with it 95% of the time, particularly in a friendly environment. Then from the time such a statement is made, it's the "Gossip Game" until a sweet little church-going lady loses her home because a drunk buglar fell on a leaf in her front yard. Most of the public just accepts these inflamatory statments as fact. But, I have found that by simply asking for dates, venues and specific citations of such claims, the tort reformers almost never provide this information; and, they are always a bit less vociferous next time they pontificate. Let's all search for the TRUTH.