December 3rd, 2015

More Important than Guns…

MachiinesGunsAndFrenchCheeseIn the wake of yet another spasm of mass murder by gun, this time in San Bernardino, CA, I’m going way off topic into politics again. My apologies. But people keep asking why we don’t have sensible gun laws when most of the country wants them.  Here are three ways to fix it, and they all come down to money:

First:  We have absurdly gerrymandered voting districts, which guarantee safe seats for each of the parties. Safe seats means extremists are more likely to win the primaries, where only the die-hard often come out to vote, and where the election is decided. Check out this incredibly ugly map in an article by Walter Olson.

Badly gerrymandered districts, Olson points out, also reward big money, since it is more expensive to run a campaign and more difficult to meet and get to know actual constituents.

Second: Public financing of elections. New York City has a system that matches small donations in a 6:1 ratio, so that a $100 donation is worth $700 to the candidate (up to a limit). This limits the power of the wealthy, be they corporations, unions, or individuals.

Will this cost a few bucks? Yes, but think what it will save when we get rational, on-time budgets without giveaways to the well-heeled.

Third: Regional presidential primaries. Why it is that Iowa and New Hampshire should play such an oversized role in electing our presidents remains incomprehensible to me, and beyond all logic. Most primary battles are already decided by the time New York comes up to vote.

So, cut the nation up into 4-8 regions and let each state grouping vote on the same day. It empowers candidates who are not as well financed since it is easier to campaign and money spent in one market seeps into others that vote the same day. And this broadens the field of ideas for the electorate. Who goes first? Pick it out of a hat. (One idea is here.)

We won’t get more rational governance from Washington, be it on the issue of guns, the budget or any other subject, if we don’t clean up the manner in which we elect those that represent us.

Having competitive elections is good for everyone. Except those already in power.


March 1st, 2011

New York To Cap Medical Malpractice Awards? (An Open Letter to the Legislature)

Dear New York State Legislators:

Deeply hidden from public view inside a report from the New York State Department of Health is a proposal to place an artificial $250,000 cap on medical malpractice pain and suffering claims. That report was given to Gov. Andrew Cuomo last week. The proposal is tucked inside something called the Medicaid Redesign Team, and was authored by insurance companies and medical institutions. There were no patient representatives on the committee.

You should soundly reject this anti-consumer bill on both public policy and monetary grounds.

First, a quick review of our current system before we get to the policy stuff: New York already has caps on personal injury cases for those runaway verdicts you see in the papers from time to time. These are not artificial, one-size-fits-all caps, but caps that are specifically geared to the individual cases. New York has successfully been doing this for almost 200 years for verdicts that are unreasonable, since Chief Judge James Kent wrote the following in Coleman v. Southwick in 1812:

“It is not enough to say, that in the opinion of the court, the damages are too high and that we would have given much less. It is the judgment of the jury, and not the judgment of the court, which is to assess the damages in actions for personal torts and injuries….The damages, therefore, must be so excessive as to strike mankind, at first blush, as being beyond all measure, unreasonable and outrageous, and such as manifestly show the jury to have been actuated by passion, partiality, prejudice, or corruption. In short, the damages must be flagrantly outrageous and extravagant, or the court cannot undertake to draw the line; for they have no standard by which to ascertain the excess.”

The standard is no longer “flagrantly outrageous and extravagant.” Now it reads, “deviates materially from what would be reasonable compensation” that is codified in section 5501(c) our Civil Practice Law and Rules:

In reviewing a money judgment in an action in which an itemized verdict is required by rule forty-one hundred eleven of this chapter in which it is contended that the award is excessive or inadequate and that a new trial should have been granted unless a stipulation is entered to a different award, the appellate division shall determine that an award is excessive or inadequate if it deviates materially from what would be reasonable compensation.

So a complainant not only needs to win the case before the jury, but that verdict then gets reviewed by the trial judge and then can be reviewed again by an appellate court. In other words, the system we currently use has a both a belt and suspenders to keep it from falling down.

What is the advantage of changing a system that isn’t broken? Well, by limiting the right to a trial by jury, it gives a healthy dose of immunities and protections to those that committed the wrongful acts. Is that an advantage? It is if you are the one trying to evade responsibility for your conduct.

If the artificial cap is in place, the injuries won’t be diminished. The only thing that will change is that the economic burden of those injuries will be borne by the victim instead of the party that caused them. Is it sound public policy to victimize the injured person a second time? Is it good public policy to discard the concept of personal responsibility?

At the moment, only the most severe injuries are the subject of malpractice suits. This is true for two reasons. First, the suits are very expensive to bring. There is little point bringing an action whose reasonable value might be $50,000, if it will cost that much in experts, records and depositions to get to verdict. And second, New York currently has some of the lowest attorneys fees in the nation as a result of “reforms” you enacted in the mid-1980s. Those fees start at 30% of the first $250,000 and rapidly slide down to 10% of anything over $1.25M. In other words,  complex and expensive malpractice cases have lower legal fees than the norm, causing a predictable drop in the number of attorneys willing to undertake the difficult cases.

The result of that “sliding scale” fee structure is that doctors and hospitals in New York already enjoy a significant amount of immunity from medical malpractice cases. It is simply not cost effective to bring many of the actions that present themselves to our doors, even if they appear to have merit. Most lawyers that practice in this area, myself included, will reject at least 95-98% of the inquiries to the office.

The insurance companies and medical profession now ask you to give them a second giant helping of immunity by eviscerating the pain and suffering damages. The ones that will be hurt, of course, are those who have been most seriously hurt. It will have no effect on frivolous cases, as they do not have a value over $250,000. They have a value of zero.

And it isn’t as if granting such immunities and protections will lower the incidence of malpractice, which already causes up to 98,000 deaths a year according to the Institute of Medicine.  If the government wants to cut Medicaid costs, and cut lawsuits, the efforts must be devoted to safety, not killing patient rights. Telling people they  can act with impunity doesn’t increase safety.

If the top pain and suffering award is only $250,000 — which sounds like a lot if you grew up in the Great Depression but means quite a bit less when a surgeon wants $5-10,000 to come in to court and testify for a morning — the effect will be courthouse doors being slammed shut in the faces of many people. Any case with even modest complexity will be rejected by attorneys, and the victim left to suffer without compensation.

And not only is this lousy public policy, but it also makes no economic sense. What happens to someone crippled by malpractice? Generally, they can’t work anymore or raise their children if they have them. They also may be uninsurable due to their pre-existing conditions. Who pays when the injured person is poor? That’s right, the public does in the form of tax dollars going to various welfare and Medicaid programs.

But if Big Hospital, Inc. commits malpractice and injures someone, why should the taxpayers be saddled with these burdens? Why shouldn’t the hospital be paying for the damage it caused? Ultimately, of course, someone will pay, and it sure makes more sense that the one that did the damage should pay the bill and not the victims or taxpayers.

Were you worried about the costs of malpractice to medical care? Don’t worry too much. For the costs are less than 1/2 of one percent.

In sum, this proposal crafted by insurance companies and medical institutions is not only anti-consumer, but will saddle taxpayers with burdens caused by others. It makes no sense on public policy grounds or economic grounds. There will, however, be a windfall profit for the insurance companies and those doctors that hurt the most people and make the biggest mistakes.

For more on the subject:

State Bar Blasts Proposal to Cap Medical Malpractice Awards (New York Law Journal)

The New York State Bar Association and its president yesterday blasted a recommendation by Governor Andrew M. Cuomo’s Medicaid reform task force to cap medical malpractice awards for non-economic losses at $250,000.

Such caps are “anathema with respect to equal protection/access to justice,” the state bar’s Committee on the Tort System said in a memo in opposition to the Medicaid Redesign Team’s recommendation. The memo was endorsed by the bar’s executive committee….

How New York Caps Personal Injury Damages

…So why put arbitrary caps in place if common sense ones already exist? Because the movement to do so has nothing to do with finding justice, but rather, is run by big business and its front groups such as the U.S. Chamber of Commerce to give negligent conduct various forms of immunities and protections when folks are injured. The idea is to remove the concept of personal responsibility for one’s actions…

Medical Malpractice Insurers Price-Gouged Doctors During This Decade

Americans for Insurance Reform (AIR) announced today the release of Stable Losses/Unstable Rates 2007, a new study that examines fresh insurance industry data to determine what caused the most recent medical malpractice insurance crisis for doctors. The study by AIR, a coalition of over 100 consumer and public interest groups representing more than 50 million people, finds that the insurance crisis that hit doctors between 2001 and 2004 was not caused by claims, payouts or legal system excesses as the insurance industry claimed….

Medical Malpractice Economics

Two weeks ago I wrote Medical Malpractice – A Primer, directed toward members of the medical community due to a recurring theme I saw on medical blogs: The idea that such suits are brought cavalierly….

I promised a follow-up on how cases are selected by a plaintiff’s attorney, but first want to deconstruct the time and money needed if the matter is taken. For only by understanding the time and money risks can one appreciate the importance of careful screening for potential litigation…

The Medical Malpractice “Crisis” Hoax — From Public Citizen

…Good doctors, however, don’t seem to be the problem. Since 1991, according to the report, 5.9 percent of U.S. doctors were responsible for 57.8 percent of the number of medical malpractice payments. That is an extraordinary statistic.

A few other points from the report, and things to think about when someone advocates closing the courthouse door to those injured by negligence:

  • The number of malpractice payments declined 15.4 percent between 1991 and 2005.
  • Adjusted for inflation, the average annual payment for verdicts declined 8 percent between 1991 and 2005.
  • Payments for million-dollar verdicts were less than 3 percent of all payments in 2005.
  • Over 64 percent of payments in 2005 involved death, or major or significant injuries.

First, do no harm

…Two recent studies make it clear those policies have not been widely adopted. Last November, both the New England Journal of Medicine (NEJM) and the inspector general for the Department of Health and Human Services published results of studies showing that the level of risk to patients in our nation’s hospitals is at crisis levels, with hundreds of people dying daily from medical errors…

Do Texas Med-Mal Damage Caps Work? (What Do You Mean By “Work”?)

…But what, exactly does it mean for a statute to “work” when it reduces the ability of the most badly injured individuals to recover for their loss?

  • Does offering government protectionism for tortfeasors mean it works?
  • Does stopping those who’ve been victimized from recovering from their loss mean it works?
  • Does destroying the concept of personal responsibility for one’s actions mean it works?

If the objective is to offer windfalls to those whose negligence has injured others then one might say it works. But that doesn’t makes it good public policy…

Child’s Feet and One Hand Amputated After Emergency Room Delay (California Tort “Reform” In All Its Glory)

…For out in California, they enacted a one-size-fits-all tort “reform” with a cap of $250,000 on non-economic damages (pain and suffering). The state did this in 1975. And it hasn’t changed in the last 35 years. Adjusted for inflation, it would be about a million dollars today. But it has never been adjusted.

That’s right, a lifetime of missing three limbs, if she survives, and this child might receive compensation of $250,000 for her pain and suffering. Less, of course, the money spent to hire the experts, take the depositions, get all the records, and get the case to trial after a few years, and paying the lawyers to do it.  Assuming that lawyers can be found to put forth the money and absorb the risk for a contingent fee….

Does the Tea Party Believe in Conservatism or Tort “Reform”? (8 Questions)

As the Tea Party movement gains more attention, some folks want to know exactly what they believe in. Today’s question: Do they believe in a  smaller, less intrusive, government or will they follow the Republican Party down the path of Big Government Tort “Reform”?

Since the Tea Party is a nascent and disorganized collection, I’m tossing out eight questions for those conservatives in the movement to ponder as they decide which side of the tort “reform” debate they are on…


November 3rd, 2010

Tea Party and Tort Reform

Yesterday, two Tea Party  favorites won Senate seats: Mark Rubio of Florida and Rand Paul of Kentucky.

But with the Tea Party making these and other gains in yesterday’s midterm election, people are wondering exactly what the movement stands for on various issues. This isn’t as easy as it seems given the fragmented nature of the “party” which is really more of a collection of ideas about more limited government.

This is the question I have: How to they feel about tort “reform?”

Exactly six months ago today, I wrote this post on the subject:  Does the Tea Party Believe in Conservatism or Tort “Reform”? (8 Questions)

I still don’t have an answer. And it seems that the time to answer  has drawn quite near.


Related:  Rand Paul: “Sometimes Accidents Happen” (And the Lesson for Jury Selection) (5/21/10)


June 16th, 2009

The Deadlocked NY State Senate and The Big Cookie Solution

The New York State Senate is now deadlocked at 31-31, and the lawsuit to impose a judicial solution on a legislative problem was tossed out today. What to do with this mess? The solution is actually quite easy.

First, the idea of one party or the other being in charge because one particular vote was legitimately taken or not is a waste of time. For elevating form over substance is useless when both parties have the power to deadlock Albany. To get anything done, an agreement is necessary.

The solution for the Senate is the same one my father used for dividing The Big Cookie between two sons. One kid cuts it in half and the other kid gets to pick which one he wants. That way the cutter has to be fair. The game of “you cut, I pick” is diabolically simple.

The Senate should do the same. One party divides all the power positions into two separate groups and the other side gets to pick the one they want. Who cuts and who picks? A simple coin toss. There. Was that so hard?

Tomorrow I will attempt to cure the common cold.


January 21st, 2009

Joe Lieberman Wears Baseball Cap to Inaugeration

It was cold yesterday for the inauguration, and being the high fashion stylist and chronicler of social culture that I am, I noted that there was an absence of hats on many of the men. While I usually leave issues of sartorial splendor and naked heads to fashion maven Scott Greenfield (See: Lawyer Fashionista: The Naked Head), this desire to keep the head naked on a cold day was something I couldn’t help but notice.

And then I checked out this very cool photo from the New York Times, which allows you to scan the crowd on the podium and zoom in on people. As you hold the cursor over a person, it tells you who they are. I wasn’t looking for haberdashery at the time, I was just looking to see who had the primo seats.

So off to the left of President Obama’s (his right) up on the podium I spy some yokel in a blue baseball cap. Not a fedora, cowboy hat or driving cap, as a few were wearing, or something roguishly stylish, but a baseball cap.

Zoom, zoom, zoom. It’s Joe Lieberman.

Is it a sign of disrespect for Obama? Perhaps it was a combination of being unprepared for the cold after coming in from the warm climate of a Connecticut winter combined with lousy fashion sense?

I don’t know. But one thing is for certain, I scanned the crowd in the picture on the podium and he seemed to be in a rather distinct minority in his fashion choice. Of course, that might be a metaphor for his politics at this point.

I’ll be back with personal injury law soon.

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posted by AGhostInTheSnow @ January 27, 2009 12:51 PM