Article: Send Lawyers, Guns, and Money

[Abdullah]

Without delving too far into tort theory, a key part of the US approach is the idea that money can be used to allow the injured/disabled/harmed person to substitute something similarly fulfilling for the non-quantifiable loss. If, for example, a defendant negligently caused a man whose passion was long-distance running to lose the use of his legs, the ideal award for that loss would enable the plaintiff to buy a substitue amount of happiness however they thought best, separate and apart from lost income or heath care. It's a pretty nebulous concept and it's obviously not applicable to all non-quantifiable harms, but it's not a bad way to try and understand tort law's intent.

In a way, it makes sense to place a high dollar figure on those sorts of harms. If someone negligently deprived me of the use of my legs, about the only thing that would prevent me from hunting them down and shooting a hole through their spinal cord around T10 would be knowing there was a meaningful possibility of my finding alternative ways to fully enjoy life. That's not going to be cheap. And neither health care (designed to treat the injury and rehabilitate as far as possbile) nor lost income (to compensate for the lower level of income I'd likely realize going forward) will cover that cost. What's needed is a damage award to put me in as good a position as I would be with two functioning legs.

On the other hand, what number that would be is hard to come up with because really, not many people would trade good health for any amount of money. And of course wherever there's the possibility of a big pay out for people who actually need it, there'll be plenty angling for it who don't.

In your example, how does a large sum of cash replace the runner's passion? This theory assumes that a person is entitled to be compensated for something that he himself cannot define a value. Such a subjective standard is ripe for abuse. The Canadian approach seems more fair and more realistic.

 

[agilis]

Uh huh.[/QUOTE]

"Yabbadabbadabba said the chimpy to the monk

yabbadabbadabba said the monkey to the chimp

all day long they chattered away

all day long they were happy and gay

uh-huhin and huggin in a monkey chimpy way.

Then one night the big baboon

he married them and very soon

They went upon an abbadabba honeymoon..."

 

[TSandM]

I think it's a very good question, about how to evaluate intangible losses.

I read a Med Mal newsletter from time to time, which goes through cases which have been litigated and talks both about the medical issues, and the legal issues involved. Some years ago, I read about a case where a woman had a sponge left in after a hysterectomy. The sponge count was incorrect, but it wasn't confirmed until the patient had been taken to the recovery room. She was not awake, not in the sense of remembering anything yet, and when the erroneous count was confirmed, she was x-rayed, the presence of the sponge confirmed, and she was immediately returned to the operating room, reanesthetized, and the sponge removed. Her hospital stay was the same as would have been expected for the operation in the first place, and she suffered no complications as a result of the second procedure or the sponge which had remained an extra hour or less in her abdomen.

Upon finding out about the error, she sued the surgeon, and the case went to court. The jury found against the surgeon and hospital, and a ONE MILLION DOLLAR VERDICT was rendered. Now, remember, IF there were any real costs in this case, it would have been if the surgeon and hospital billed the patient for the second anesthetic and procedure, which I am quite sure they did not (not billing for such things is a known strategy for PREVENTING lawsuits). Even if they did, we'd be talking a few thousand dollars in bills. The patient had no additional postoperative pain or disability -- her award was, as far as I could tell, for the EMOTIONAL distress of knowing she had a sponge left in that was promptly removed!

Capping intangible rewards would undoubtedly be a disservice to a few plaintiffs, but it would go a long way toward controlling excessive awards.

I also spoke, some time ago, with an attorney from a southern state, who told me their state had decided to fight EVERY malpractice case to court -- to settle nothing. In about five years, the number of cases filed dropped to less than ten percent of what had been happening before, and over 90% of them were won by the defendant. I do believe that people who are injured by clear malpractice (and it happens) should be compensated -- but those cases will be brought and tried, and if the evidence is clear, I still believe that the right thing will be done. It's the lottery we have to stop.

 

[agilis]

I think it's a very good question, about how to evaluate intangible losses.

I read a Med Mal newsletter from time to time, which goes through cases which have been litigated and talks both about the medical issues, and the legal issues involved. Some years ago, I read about a case where a woman had a sponge left in after a hysterectomy. The sponge count was incorrect, but it wasn't confirmed until the patient had been taken to the recovery room. She was not awake, not in the sense of remembering anything yet, and when the erroneous count was confirmed, she was x-rayed, the presence of the sponge confirmed, and she was immediately returned to the operating room, reanesthetized, and the sponge removed. Her hospital stay was the same as would have been expected for the operation in the first place, and she suffered no complications as a result of the second procedure or the sponge which had remained an extra hour or less in her abdomen.

Upon finding out about the error, she sued the surgeon, and the case went to court. The jury found against the surgeon and hospital, and a ONE MILLION DOLLAR VERDICT was rendered. Now, remember, IF there were any real costs in this case, it would have been if the surgeon and hospital billed the patient for the second anesthetic and procedure, which I am quite sure they did not (not billing for such things is a known strategy for PREVENTING lawsuits). Even if they did, we'd be talking a few thousand dollars in bills. The patient had no additional postoperative pain or disability -- her award was, as far as I could tell, for the EMOTIONAL distress of knowing she had a sponge left in that was promptly removed!

Capping intangible rewards would undoubtedly be a disservice to a few plaintiffs, but it would go a long way toward controlling excessive awards.

I also spoke, some time ago, with an attorney from a southern state, who told me their state had decided to fight EVERY malpractice case to court -- to settle nothing. In about five years, the number of cases filed dropped to less than ten percent of what had been happening before, and over 90% of them were won by the defendant. I do believe that people who are injured by clear malpractice (and it happens) should be compensated -- but those cases will be brought and tried, and if the evidence is clear, I still believe that the right thing will be done. It's the lottery we have to stop.

You realize, of course, that you begin your post by writing, in effect, 'how to make tangible the intangible?' You can't. You can monetize the intangible, which is the only way to interest anyone in assisting you in seeking redress. For example, if the surgical team that miscounted the sponges were punished with some mild physical abuse, like being forced to eat at The Olive Garden every day for a month, or required to wear ugly hideously colored shoes for several weeks, few lawyers would be interested in litigating for nothing more than their usual hourly fee, and even fewer of those whose ox was gored would be interested in pursuing the issue and paying a few hundred per hour for the services of an advocate to do so. But money? Katie bar the door.

The strategy of contesting almost every malpractice suit has been around for quite a while, and again is based on a cost benefit analysis. If a hospital/physician cuts the wrong leg off some ugly old man who has done little but watch TV since Nixon was pardoned in advance, the insurance company may let things languish for a few years, refuse to settle. The old guy may die, and juries are much less likely to make substantial awards to a dead person's estate. Even if he does not, the odds are against a large judgment.

On the other hand if the double amputee (after discovering the error they still had to cut off the bad leg) is an attractive 19 year old college student who had a track scholarship, offers are very likely to be made in an effort to avoid litigating the matter in front of jurors who watch Dances With The Stars and fail to realize that Fox news is actually a comedy show.

 

[Hollieag02]

Well said, Doctormike. Different industry, but I see colleagues quite often who I wish would get sued/ be punished somehow for patient negligence, yet they keep on practicing.... And people keep getting hurt.

thanks to Chatterton for letting us know. T & P for everyone involved.

 

[dpaustex]

Similar to what happened to John, I had a woman run over on one of my road construction projects. She and her friends ignored posted warnings and barricades, and chose to walk in a live traffic lane. 3 of the 4 were hit by a car (at night), and 1 was seriously injured. Literally the last day a suit could be filed, my company and all of the corporate officers were sued.

The way insurance companies - and policies work - is that a "loss reserve" is assigned to your policy, even if nothing is paid out. Worse, they "re-rate" your policy.

Now my company had tens of millions of dollars of work under contract. The costs for these hard-bid projects were based upon a PERFECT safety record. So when the accident happened, and we notified our carrier, our insurance went up by a factor of FOUR.

Four years later, the suit is tossed out of court (duh, I did not make them walk in the street). However, in those four years, I pay out an additional out-of-pocket expense in increase insurance premiums of almost $800,000.00. After the suit is tossed, I ask the insurance company for the money back. They laughed.

Ten years of my hard-earned money went down the toilet. All because some idiot college girls walked in the street to their party. The one that filed suit had a father in the insurance business - that didn't even spell her name correctly on the suit he filed pro se (without an attorney). My life was a living hell that whole time.

So all of you scum sucking lawyers, shame on you. Your brethen tried to paint my company's perfect (to this day, save this one thing, PERFECT) safety record as something bad, and me a bad person and bad "Owner". After years of courtroom shenanigans and delays, a judge finally said "enough", and threw this whole thing out. The cost to me, personally and financially, was huge. I abhor these type of lawyers, and will shed no tear when those of similar ilk suffer a horrible fate (one can only hope).

There is enough bad things in this world, but to have people participate in an assumed risk activity, then their family go "King's X", is BS.

 

[gypsyjim]

Similar to what happened to John, I had a woman run over on one of my road construction projects. She and her friends ignored posted warnings and barricades, and chose to walk in a live traffic lane. 3 of the 4 were hit by a car (at night), and 1 was seriously injured. Literally the last day a suit could be filed, my company and all of the corporate officers were sued.

The way insurance companies - and policies work - is that a "loss reserve" is assigned to your policy, even if nothing is paid out. Worse, they "re-rate" your policy.

Now my company had tens of millions of dollars of work under contract. The costs for these hard-bid projects were based upon a PERFECT safety record. So when the accident happened, and we notified our carrier, our insurance went up by a factor of FOUR.

Four years later, the suit is tossed out of court (duh, I did not make them walk in the street). However, in those four years, I pay out an additional out-of-pocket expense in increase insurance premiums of almost $800,000.00. After the suit is tossed, I ask the insurance company for the money back. They laughed.

Ten years of my hard-earned money went down the toilet. All because some idiot college girls walked in the street to their party. The one that filed suit had a father in the insurance business - that didn't even spell her name correctly on the suit he filed pro se (without an attorney). My life was a living hell that whole time.

So all of you scum sucking lawyers, shame on you. Your brethen tried to paint my company's perfect (to this day, save this one thing, PERFECT) safety record as something bad, and me a bad person and bad "Owner". After years of courtroom shenanigans and delays, a judge finally said "enough", and threw this whole thing out. The cost to me, personally and financially, was huge. I abhor these type of lawyers, and will shed no tear when those of similar ilk suffer a horrible fate (one can only hope).

There is enough bad things in this world, but to have people participate in an assumed risk activity, then their family go "King's X", is BS.

Suggest to the Insurance agency that since they don't have the money right now to refund your over charges for the last 4 years, the least they can do is mark your policy Paid In Full for years into the future!

 

[agilis]

Suggest to the Insurance agency that since they don't have the money right now to refund your over charges for the last 4 years, the least they can do is mark your policy Paid In Full for years into the future!

They would laugh even harder than they did at the refund suggestion, and possibly injure themselves while laughing uproariously: they might get splinters as they pound the floor in a paroxysm of hilarity, or they might choke on a piece of human flesh they were in the process of masticating prior to swallowing it. Then they would bring an action for monetary compensation against the thoughtless miscreant that caused them to laugh.

When will poor exploited suckers realize that fair, reasonable, or just are not part of any insurance company's motives or values, and that any expense not mandated by law or difficult to get away with by ignoring it can be changed as needed by their trained monkeys in the legislature.