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Thread 8053

Thread ID: 8053 | Posts: 1 | Started: 2003-07-11

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Fire Pen [OP]

2003-07-11 17:18 | User Profile

The Bush administration, along with many Republicans (and even conservatives), are disappointed in yesterday’s Senate death of a bill that would have limited court-awarded judgments for pain and suffering in medical malpractice suits to $250,000. No doubt most of the Democrat opponents of this ill-conceived proposal killed it for the wrong reason (such as yielding to the powerful trial lawyers lobby and other constituencies). The fact is there are good reasons for opposing this big-brother legislation. For one thing, many states already have such limits and others are free to enact similar limits should they so choose. Like the recent national directory created to stop telemarketing calls, and other good sounding ideas, this should not be the business of our increasingly intrusive federal government.

It is true that a number of unconstitutional and ineffective laws regarding both the legal and medical professions are in dire need of repeal. Unfortunately, when a “correction” is attempted, it usually takes the form of a further layer of unconstitutional and ineffective modification. Often, the same flawed reasoning that went into the original law not only survives, but is compounded by further inequities. Placing a limit on court-awarded monetary judgments in medical malpractice suits, for example, does nothing to solve the problem of frivolous lawsuits (or of inefficient managed medical care, for that matter).

A limit on pain and suffering awards does not encourage judges to act responsibly against falsely contrived lawsuits or reckless juries. Granted, it may prevent someone from receiving millions for spilling too-hot coffee in his lap, and it may even tend to lower tort insurance premiums very slightly. Such one-size-fits-all legislation does not, however, allow for individual consideration of widely differing cases. Will the fixed dollar figure permit a court from adequately compensating a family which, say, loses the head of a household due to gross medical negligence or a skilled artisan who loses his sight for the same reason.

There is one relatively uncomplicated solution to frivolous law suits, medical or otherwise. The primary reason why practically everybody seems to be suing everybody else these days is simple: It is just too easy. Could you use a few bucks? Can you come up with a grievance that a lawyer will listen to (a lawyer will, of course, listen to -- and sue over -- practically anything)? Go for it. You can’t lose. You are, in fact, virtually guaranteed of a payoff. The same goes for government entities. The old saying that “you can’t fight city hall” is a crock. You can beat them every time.

The formula is simple: 1. Sue for a large sum. 2. Complain about everything and everyone you or your attorney can think of. 3. Don’t concern yourselves with facts. Include gross exaggerations, half truths and outright lies. 4. Now sit back and wait. At some point the case becomes too expensive for the defendant to pursue. The defendant’s attorney, knowing in advance that this point is inevitable, are predisposed to settle. After a bit of negotiating, the settlement will be offered. The plaintiff pays his lawyer a chunk of the payoff and walks away with a nice profit -- no doubt encouraged to try it again.

How can it be so easy? The reason is that the defendant must pay the plaintiff’s legal fees and expenses if the suit succeeds, but the plaintiff does not have to pay the defendants legal fees if the suit fails. If you are sued, therefore, even if it is apparent to everyone that the case is a joke, and even if you are willing to incur the exorbitant expense of fighting it to win, you will still be responsible for your own legal fees. You may well win the case hands down and still be facing financial ruin. That is why, unless one is extremely wealthy and wishes to make a point of principle, it is always cheaper to reach a settlement and pay the extortion.

The age old principle of “loser pays,” practiced by most of the world’s civilized nations in cases of civil law, is not practiced by most of America’s courts. This is the primary reason for our excessively litigious society. The plaintiff has nothing to lose. If a would-be plaintiff knew he would have to pay the defendant’s legal expenses if he lost the case, he would think twice -- maybe three times -- before bringing a law suit. You can bet he’d make damn sure he had a good case before going to court. And you can be certain that an attorney might be a bit more circumspect about taking on a questionable case on speculation (one which he might actually have to work at winning in court) from some deadbeat client with a shaky story.

Instead, we continue to subsidize extortionists and a system which forces corporations, small businesses, tradesmen and even government entities, to charge us extra for their products or services in order to cover the heavy costs of law suit settlements, resulting exorbitant legal fees and inflated insurance premiums. This is looked on by many as simply the cost of doing business. The trial lawyers, of course, love the present arrangement. It is one that virtually guarantees a fee -- and a busy schedule. It is their powerful lobby which is keeping fair and common-sense legal reform from happening.