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Our system also produces far far too many lawyers. Suppy creates demand. Give a bunch of people law degrees and they will find a way to put them to use. I'm sure there are many fine lawyers, and our society needs some method of conflict resolution. But there are also lots of ambulance chasers, and class-action junkies clogging up the system, creating lots of extra costs for the rest of us. We need to cut down on the number of lawyers - it won't raise the fees of existing lawyers, it will just mean that there won't be as much lawyer "busywork".

"Secondly, if an attorney thinks he will not be paid for his services, I don't believe he will be as strong a proponent of the marginal cases."

Since, for slip and trip, it's mostly contigency fees anyway, the lawyer is in no different position. If he didn't think he had a chance of winning or settling, he wouldn't take the case in the first place.

As for bankruptcy, there's not much you can do to someone who has little or no financial assets. About the only choice you'd have is not discharging the bankruptcy, but even then it's almost never worth it for the defendant to try to collect. The cost of collection almost always exceeds what you can collect. What would you suggest, throwing them in debtors' prison? I doubt that even a majority of Republican Congressmen would go for that.

I just don't think your solution would have much practical effect, in the average tort case.

From the evidence I've seen (a memo, showing Fords cost-benefit analysis), the actual cost to change the design flaw, would have been 11 dollars per car. Not that it matters.

Oh, by the way, good post.

I don't really care what Jack's profession is. Jack Frost is my friend; and that's enough for me.

You know, you are all focusing too much on the details of Jack's post.

Life should never be about the technicalities, should it?

Tom

As Mies said, Tom, God is in the details.

I like Jack too, as well as the other legal eagles who have chimed in here. They are not the people I've been talking about; I've tried to make that as clear as I could. I understand Jack's irritation at being tarred by the misdeeds of others. I don't like it when I'm similarly judged guilty by association, and I don't want him treated that way by me or anyone else on the forums.

But I hope that in order to be his, or others', friends, I don't have to drink the Kool-Aid and chant that all's well in LawyerLand, because I know better than most that it isn't.

I hope that it's enough to say that I have immense respect and admiration for Jack, Cindy, and others, and that I think they're examples for others in their profession to follow. I'll drink a gallon of that flavor of Kool-Aid.

You are correct that when they did the original cost benefit analysis, the projected cost was $11 per car, and apparently that would have put the list price over $1,999, which they did not want to do.

When they actually went to chnage the design after being sued and losing big time, the actual cost to correct the defect turned out to be about a buck.

jf

I stand corrected.

FYI, I wasn't trying to "stir the pot" or anything. It's just that I occasionally feel guilty about lurking here as often as I do. So I try to make it a point to post something every now and then.

Zymtil.

Long time no see.

I've been hiding.

It seems neither of us can stay away from this place for too (to?) long.

Miss your insights.

Post more, please.

Jolly and Dwain, it's getting late, which explains the brevity of this response. Maybe I can do more later . . .

Yes, reform is needed in the legal system. I think the best place to start is the class action system. I am not sure what the best fix is, though. I haven't heard a proposal that sounds workable to me.

I know that the current system doesn't serve the public interest because the consumers (members of the class) don't get much. (How much did you all get from the CD price-fixing scheme?) Class actions serve an important purpose, but the current system is a mess.

On medical malpractice, I really believe the issue is somewhat overblown -- premiums increases aren't driven by frivolous lawsuits, IMHO. That said, the very best way for docs to bring down their malpractice exposure is to *communicate* with the patients and take responsibility for their mistakes rather than hide them. There was a WSJ article (that we discussed here, I think) that showed that patients are very likely to file a malpractice claim if they think they are being stonewalled.

DISAGREED! Spend a couple of years in my profession and you will think differently. I have come to the conclusion that ANY bad outcome could potentially result in a lawsuit. It doesn't matter if the patient is non-compliant or strung out on drugs. It doesn't matter if the patient refuses to do anything that you had advised; bad outcome="what the heck, let's sue!"
And the lawyers pick up the scent like a pack of buzzards; circling and then swarming the kill to try to get the tastiest morsel before the others swoop down.

Actually, Dr. Moonlight, I agree with you.

But I think it's symptomatic of a larger issue in our society today, one that goes far beyond the legal system.

First, remember that plaintiffs can sue and lawyers can represent them, but it wouldn't amount to anything if juries wouldn't award outrageous verdicts to plaintiffs. The threat of a lawsuit is only meaningful because lawsuits are often successful, and when the are successful the amounts awarded by juries can be staggering. So, while you are pointing the finger at greedy patients and opportunistic lawyers, remember to point that finger at everyone in your community ... because the threat of lawsuits wouldn't mean much of anything if juries, made up of the people who live in every house on every block in your town or city, didn't agree with them and give ridiculous awards to undeserving plaintiffs.

That said, I think there is a general tendency in the U.S. today to assume that, any time something goes wrong, someone is to blame. And, no matter what, to try to shift the blame to someone other than yourself (and I don't mean you by that, my good doctor). So, if anything goes wrong, it can't merely be bad luck. It's someone's fault.

The best example is cigarette smoking. Sure, the tobacco companies are to blame. Certainly, they encouraged the public to smoke more cigarettes, knowing all the while that it was damaging to their health.

But where's the personal responsibility? Since at least the 1960's, there's been a warning label on every single pack of cigarettes sold. That's almost 40 years. Where does anyone get off blaming the tobacco companies if they started that dangerous habit, and continued it, despite the very clear public warnings that cigarette smoking could kill you? Personally, I think the evidence of the dangers was overwhelming ... but even if you think the evidence wasn't as compelling, it's not as if you didn't know there was a risk there, right?

To my mind, I'm happy to see the tobacco companies pay through the nose. However, every cent they pay should go to public education, public health. Not a single cent should enrich the pocket of any person (or any lawyer representing any person) who made a personal choice to smoke in the face of a constant public drumbeat about the dangers of smoking.

So, if we really want the legal system to work properly, we need to start with the core value of personal responsibility. If we weren't looking for someone to blame, we wouldn't be looking for someone to sue.

Don't forget, it was a lawyer who saved Santa in "Miracle on 34th Street".

That was over 50 years ago, and there were a lot less of them (didn't hurt to have a corrupt judge, either! ).

To address Cindi's points about medicine...the practice of medicine has fundamentally changed to accomodate the legal system.

Years ago, physicians were taught to use Okam's(sp?) Razor - evaluate the symptoms, and choose the most likely diagnosis. If the patient did not respond to therapy, go back and lick your calf over, so as to consider more esoteric problems.

It is no longer that way. Physicans are now taught to base their diagnosis on decision trees, and rule out, or drill down to the eventual diagnosis. In the long run, this may be more effective, but I question its validity on a cost/value basis. Diagnostic work can be pretty expensive, but the physician can not trust his instincts, because if he is wrong, the cost to him could be enormous.

When looking at the whole, the delivery of care, cost, and the amount of time to treat, the legal obstacles have created a prohibitive barrier to good medicine.

"Occam's razor is a logical principle attributed to the mediaeval philosopher William of Occam (or Ockham). The principle states that one should not make more assumptions than the minimum needed. This principle is often called the principle of parsimony. It underlies all scientific modelling and theory building. It admonishes us to choose from a set of otherwise equivalent models of a given phenomenon the simplest one. In any given model, Occam's razor helps us to "shave off" those concepts, variables or constructs that are not really needed to explain the phenomenon. By doing that, developing the model will become much easier, and there is less chance of introducing inconsistencies, ambiguities and redundancies."

There's a lot more there, but it gets pretty esoteric.

http://pespmc1.vub.ac.be/OCCAMRAZ.html

Based on that definition (the first one I found on the web, but similar to the way I learned it), I'm not quite sure it's as you've described it, Jolly.

That brings us back to the question of defensive medicine -- and the belief of some that defensive medicine is a bad thing.

I just don't buy it. Sorry, I don't. Call if "defensive medicine," if you like, but I think of it as "careful and comprehensive medicine." I *want* my doctor to consider all the possibilities, not just the most likely one. I had a pretty nasty ER experience about 2 years ago where the doc assumed a simple explanation when the problem was much worse. Maybe having the doc pursue the most likely solution first makes good economic sense, but you have to admit that some patients (those with quirky problems) can be injured by that approach.

Johnny, we have to face the fact that medical mistakes happen *a lot.* People are hurt by them *a lot.* Yeah, sure, some people sue just because they got a bad outcome or are being opportunistic, but I believe part of that is that they don't feel they can trust their doctors to come clean. If your baby suffers a birth injury and you don't know why, you have two choices -- just throw up your hands and chalk it up to bad luck or hire a lawyer to find out whether something was done wrong.

I dunno, maybe it would be helpful to have some sort of medical board that patients could go to where the docs would go over their charts and their case and explain why things happened the way they did, with nothing said being admissible in a subsequent lawsuit. So far as I know, the only way most injured patients can find out if something went wrong is to sue, and that's not a great system.

Cindy -- who still gets mad at the terribly insulting and condescending way she was treated by that ER doc

our lawyer is indispensable

Do medical mistakes happen a lot?

I've already said there isn't a 7-day inpatient chart I can't find some kind of mistake in.

Do these mistakes usually mean a lot?

Most of the time, they are minor, and do not effect the patient outcome.

As for "comprehensive" medicine...resources are finite. For every minute a physician spends with you, is a minute he doesn't spend with someone else. I don't know what the going rate for an ER doc is in JM's part of the world, but down here it runs between 2-3 bucks a minute.

The ED is "treat 'em & street 'em". On one hand, the doc can't be as comprehensive as he'd like due to hospital financial constraints - if you can't see X patients/shift, you're not going to work there. On the other hand, a GSW takes priority over a bad pneumonia, that takes priority over a broken arm, that takes priority over a small laceration.

Yet, while trying to cope in the center ring of this Ringling Brothers, Barnum, & Bailey wildfire, the physician has to make darned sure he doesn't do something to get himself sued.

It is not for the faint of heart.

"I *want* my doctor to consider all the possibilities, not just the most likely one."

That was my point about Jolly's description of Occam's razor. Occam's razor says that the simplest possible model, or solution, is generally the best, but it does not say to choose a model that ignores some potential outcomes in order to achieve simplicity.