This page contains a single entry from the blog posted on October 7, 2004 12:37 PM. The previous post in this blog was Give 'em hell, Jackie. The next post in this blog is Won't get fooled again. Many more can be found on the main index page or by looking through the archives.

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Thursday, October 7, 2004

No on 35

I'm voting no on Oregon Ballot Measure 35, which would cap personal injury pain and suffering awards at $500,000.

The insurance companies would have you think that passage of this constitutional amendment will prompt them to lower doctors' malpractice insurance premiums around here. They've even got some of the doctors believing them. I don't.

If some doctor shows up for your or your kid's surgery drunk, or distracted by his stock portfolio, or in a hurry to get to her country club for a round of golf, and he or she screws up, leaving the patient in agonizing pain, or impotent, for a long period of time, to me there are plenty of times when that's worth more than $500,000.

Another way to lower malpractice costs is to weed out incompetent doctors and drum them out of business. When I hear that we've accomplished major reforms in that department, I'll think about screwing over further the victims of their foul-ups. Not to mention the possibility of better regulation of the insurance industry.

If doctors are being negligent and reckless with your health, don't blame your lawyer for the consequences.

Comments (25)

yay! yes, I'm with you on that.

There do need to be limits. But $500,000 is too low. Raise that limit to $5,000,000 and I'm on board.

Agree with Scott. $500K is too small of a limit, but there needs to be one.

Agree with Jack on one point, though. I'd like to see the reaction if this thing passes when a doctor walks into his ins. co's office and asks for the lower rate now that they only have to worry about $500K.

I am open, then as a lawyer tell me an alternative to limiting non-economic damages? I am sorry, but we have an Ob-Gyn as a friend and she is about ready to quit. She has not done any harm to a patient in 15+ years and pays a done of money in premiums. I don't really see a solution besides setting some hard limit. I know you think insurance companies are the great Satan, but they are very effective on keeping medical charges down, if nothing else for the amt of hoops doctors have to jump thru.

I'm especially awaiting Jack's comments on the 50/50 forest measure. While he and I don't always agree on various issues (tho for all I know we will agree on that one), I'm more than somewhat confused on that measure and need to read all the opinion on it I can, heh.

Steve, If bad docs can butcher folks and not make them whole, then there aren't enough hoops.

Hey! I've got an idea! How about a quasi-public insurance company -- like SAIF!

Never mind...

Amen, Jack, not just to the above comment, but to the post as a whole.

Scott, how did you arrive at $5 million, without even saying *why* there need to be limits? Is it because of the specter of "frivolous lawsuits?" If the answer there is "yes," then I have to say that there are other, better remedies available. Jack has just named one. Here's another: the already in-place concept of remittitur (where a judge can reduce a jury award upon motion by the loser-defendant).

Steve 00, you don't need to be sorry, and it's too bad that your Ob-Gyn friend is considering quitting. It'll be even worse if she does quit, but you still don't substantively explain why an injured patient should have his/her remedies arbitrarily limited to $500,000. You don't see any other solution? Again, Jack has just named one. You need another? Here: board review of potential lawsuits to weed out the frivolous cases, with sanctions available to the offending attorney. Think that'll simply add to administrative costs? It may or may not, but any potential additions would hypothetically be offset by the reduction in the numbers of marginal lawsuits being brought to trial, and would further reduce the chance of an unreasonably large jury award for a frivolous case. Of course, it still leaves open the possibility of a large award for a deserving case, but hell, a deserving case is a DESERVING case.

This issue is less about insurance companies, whether you think of them as a "Satans" or otherwise, than it is about punishing the attorney who points out the fact that Dr. X is an unqualified or negligent (or both) practicioner. This legislation is analogous to cutting off the head of the messenger simply because of the content of the message.

Wm - Wtf?! Are you retarded?

"Scott, how did you arrive at $5 million, without even saying *why* there need to be limits?""
You agree there need to be limits in your own post. Ergo, you are a retard. As for the amount: that is a reasonable upper-limit. Of course I assumed that reasonable judges would lower the damages in cases where the jury was as stupid as you are.

Back to the point - The "McDonald's Old Woman™" got a lot of money for being an idiot. She spilled coffee on herself and got money for it. That reason, in and of itself, is why there need to be hard-capped limits on damages in legal cases. Not because reasonable people are incapable of deciding this on their own - but because unreasonable people are making these decisions (juries and judges).

Therefore the need for legislation.


It is one thing to make snap judgments and rant about issues as you often do in these comments, but it is quite another to call another reader names. It is just plain rude, and it really undercuts any argument you may have been attempting to make.

Also, arguing that your opinion is the same as what "reasonable" is does not do a lot to convince me. Wm just wanted to know what the reasoning was behind your earlier post, and not only did you not answer him, you called him a retard. Cool.

You mentioned the famous McDonalds coffee case. Read this or do a web search on the case, just so you have some more information about what really happened: http://www.lectlaw.com/files/cur78.htm

I don't think we can say judges and juries are unreasonable as a whole - I think almost all of them take their duties very seriously. Also, they, unlike you, actually have the facts of the cases they are deciding in front of them.

Scott: I think you should go back and read my post. And read Rachel's, too, especially the first paragraph.

Substantively, I am obviously not in favor of these limits, and honestly cannot see how you can deduce from my post that I am. Instead of showing any support for these kinds of limits, I've pointed out three viable alternatives to them. You cannot reasonably deduce from my post that I favor the limits about which Jack originally posted.

Because the comments are a forum for exchanging ideas, I was genuinely challenging you to show how you arrived at the $5 million figure. Since you have not provided an economic analysis, an historic example of why it works elsewhere, or a reasoned explanation, I'm forced to assume that you don't have one.

Furthermore, you are confused or ignorant (or both) regarding the substantive legal issue in Jack's post. You cite for support the famous McDonald's case. However, in that case there were no doctors involved, and no medical malpractice in any part of the claim. This piece of legislation is deliberately limited to cases of injury resulting from medical malpractice. Though you may believe the issues are similar, they are fundamentally different based not only on the unique relationship that exists between a doctor and patient, but on the fact that while not everyone is affected by general tort claims limits (fortunately), most everyone goes to a doctor at some point in their life, so the effect of the legislation in this case is far broader.

So basically, you can take your unreasoned, arbitrary opinion, and your four-letter Latin vocabulary, and blow it out your ass and into the wind.

instead of having limits, why don't we do the following- have the government pay! if you happen to be in a building that was hit by a plane a few years ago, A) your a hero and 2) the government wrote you a check essentially bailing out the insurance companies. so, next time the doc operates on the wrong knee or carves his initials in your abdomen, don't go after him, write W and ask for a few million because your now a victim/hero.

Measure 35 puts a limit on NON-Economic damages. If a person is unable to work the rest of his life or has some measurable economic damages (like life-time care) and you can make a reasonable case, then these are NOT affected.

The $500K limit is on non-quantifiable damages, viz, things without a price. For example, who knows what lack of companionship is worth? Can anyone say it is worth $1 (if the guy's wife is going to leave him anyway) or $1 ba-zillion (which is what I assume a lawyer would put as value.)

I mention our OB-GYN because she pays premiums for all of these mailicious butchering doctors even though she has never had a claim and is a very conscientous doctor. So in the end, we get lawyers who get 50% of the settlement (if it goes to appeals) and a good doctor who has never harmed anyone is gone.

If you really don't think we need limits (please don't counter with ad hominem attacks or smart-ass replies like Mr Bog, esquire), tell me how do we make this an equitable solution?

Steve 00-

I agree that good docs shouldn't have to subsidize the costs that bad docs bring to the system, but I don't think that limiting what the injured can collect is the way to deal with the problem. I think it's curious that insurance companies, rather than saying "no" to docs who are a problem, simply charge them (and docs like your ob/gyn friend) more. There ought to be a point at which the economic reality of insuring a doc who is a poor risk guides the insurance companies' decisions, rather than us enacting some protectionist policy that allows the companies to continue to reap profits by raising rates on good docs and charging quacks still more. If economic reality guided those decisions, rather than the current system of insurance companies in essence forcing docs like your friend to subsidize poor risk docs, perhaps we would not only see injured patients adequately (as adequate as money can be, anyhow) compensated, but maybe even fewer injured patients, period, as quacks might find it more economically viable to find alternative employment.

The $500K limit is on non-quantifiable damages, viz, things without a price. For example, who knows what lack of companionship is worth? Can anyone say it is worth $1 (if the guy's wife is going to leave him anyway) or $1 ba-zillion (which is what I assume a lawyer would put as value.)

Just because something is hard to value doesn't mean it's worthless. And sorry, a lifetime of excruciating pain is worth more than $500,000. You want to make it $5 million? Get tougher on incompetent doctors, change the number to $5 million, and come back to me with a different proposal.

BTW, if 34 is such a great idea, how come our elected representatives won't pass it?

Steve 00:

I understand that the ballot measure relates to non-economic damages. Non-economic damages include "quality of life" issues, like the lost ability to walk, see, reproduce, eat without assistance, have all your limbs working, etc... Not just for the sake of earning a living, but for the sake of having a life such as one had prior to being injured. That life may be fun, exciting, boring, deplorable--but it's up to the plaintiff to show why their life was worth what they say.

You seem to think that one need only make a "reasonable" argument (through one's lawyer, presumably) that one has been injured to the tune of a "ba-zillion" dollars. But for most civil verdicts, one must prove their case by a preponderance of the evidence, which may not mean much to non-lawyers, but is actually a fairly stringent standard in practice, and much, much higher than merely "reasonable." And while you are skeptical that anyone can prove the worth of companionship (reasonably or otherwise), that is exactly what lawyers get paid to do. We make arguments as to why one guy's life is worth X amount of money, and either the jury is persuaded by the preponderance of the evidence, or they are not. The evidence doesn't come from some lawyer's imagination either. The lawyer has to prove why she thinks X is the proper amount. You should also rest easier knowing that, for every lawyer trying to show that a man's wife's companionship was worth a ba-zillion dollars, there is another lawyer arguing equally as hard that she was about to leave him anyway, thus reducing the value of the companionship. What the jury believes is up to the jury and absolutely SHOULD NOT be influenced or affected by people on the outside who don't know the facts of a particular case.

Also, there is something you need to understand about settlements and contingency fees: settlements don't go to appeals. Settlements are agreements between parties to STOP ARGUING. Nobody "wins" a settlement, it's a draw, a tie, an armistice. Therefore, nobody can send a settlement to appellate review without first being heard in a trial court

Don't be mistaken, I don't think we "don't need limits." I think, as I explained above, there are already suitable limits in place (even if they are not being properly used by courts), and alternatives available as suggested by Jack and others. Also, the fundamental lie in this ballot measure is that it is advertised as being a method of reducing medical costs, WITHOUT saying how it'll happen, or who will enforce the reductions. No one knows whether insurance companies will be forced to reduce their rates if this measure passes. Insurance companies simply DON'T give money away.

You want an equitable solution? For whom? For an injured party? For your doctor friend? For society? For insurance companies? Everyone? There simply is no "equitable solution" for all parties, all the time. That's why Jack is right--this measure should fail. The solution to the overall problem isn't going to be *one* thing, it's going to have to happen through a combination of things: forcing bad doctors out of business, pressuring insurance companies to lower their rates, and yes, even reigning in lawyers and plaintiffs who abuse the system.


I used to think the same thing about the "old lady" case relating to McDonald's coffee. Until I heard about what really happened and not just media reports. There were over SEVEN HUNDRED incidents that McDonalds was aware of where there coffee has scalded people. this woman had third degree burns. McDonald's KNEW this could happened because it aleady had. My guess is it hasn't happened since.

Also, she didn't end up getting that much money when all was said in done. She ended up getting a couple hundred thousand

Alright, I got carried away with the 'retard' label - so I apologise for the strong label.

But opinion of Wm's initial complaint remains that same, that is: 'How' I arrived at the number doesn't need to be explained along with 'Why' I arrived at the number. But for those who care: 'How' was an economic calculation (off the cuff); 'Why' I arrived at it is, 'I still agree with the original premise/intent of the bill." I honestly believe the bill will not achieve what it proclaims to do....but that is a separate concern.

As for the magical 'other remedies' for reducing frivilous lawsuits - it ultimately won't help. Additional legislation will appear, people will feel hopeful (as with this bill) but it won't solve the problem of folks who are 'entitled' to compensation (in their minds).

America is getting Socialized medicine. Period.

In last night's debate, John Kerry in effect endorsed Ballot Measure 35 in Oregon. He said he supports caps on punitive damages and pain and suffering. John Kitzhaber has already endorsed Measure 35.

But compared to Erin Brockovich, what do these guys know?

There's no way Kerry would support a $500K cap. As I and at least one other commentator here have suggested, maybe $5 million would be more like it.

Oh, and Erin Brockovich and I know more than you, Kitzhaber, Kerry, and Kevin Mannix combined. 8c)

Let's be honest. There's no way Kerry would support any cap in practice. He just said he supports them in principle in order to pander. Saturday Night Live had him pegged perfectly.

"Let's be honest." A great line -- one that's won all three debates so far.

You know I have written three responses to this question and deleted them all because this is an issue that's really too large for a blog. But think of this. All human activity carry's with it the risk of injury. The only way to totally stop chances of doctors making a mistake is to not have doctor's. So we create Board's of Review and financial liability for mistakes. Insurance companies try quantify the $$$ value of the potential mistakes so they can write policies to cover doctor's risk.

Then they run into the great unknown. The $$$ value of blame. Noneconomic damages are really what dollar value a jury thinks will adeqautely punish the doctor for the mistake. It is totally subjective most of the time, and not surprisingly doctor's hate it because they recognize they're human and hate being called butcher's by lawyers. And insurance companies hate it because it makes it harder to handicap potential liabilty and thus harder to make a profit.

Lawyers like it because they can take on more clients, some of whom will lose the case but the lawyer will get paid by the next client who wins big. And lawyers will tell you truthfully that it is about the only way to pay for a legal system where your ability to get made whole depends on funding lawyers that way. Oh yes and the only way to fund a legal system that allows juries to affix financial penalties to blame.

Unfortunately, doctors have enough money to fight about this in public so we get ballot measures every so often. So what my point about all this. One the system isn't broken. It does exactly what it is designed to do. Limiting doctors non-economic liabilty to $500,000 will make insurance a little cheaper for doctors but it will have zero effect on ridding us of any incompetent's that happen to be out there. It will also make it marginally less likely that some plaintiff's will get represented, at least until inflation reduces the value of $500,000 to something much less. Which brings me to my final statement. I haven't read the ballot measure. I rarely read ballot measures. I usually just vote no. But if this ballot measure doesn't have an inflation rider on the $500,000 I would vote no in an heartbeat. Even if it does I personally would vote no because it protects a small part of public but leaves the system intact. If the system's broke then let's fix it. If it's not broke what's the justification for exempting one small group from it but not another.

I work with docs a lot, but I am not a medical professional myself. The docs I know seem quite good, but they don't know everything. Docs are human. The ones I know have good intent, work dilligently to do their best, but eventually they will screw up. (The trick is, I hear, to ensure that inevitable screwups are ones of small consequence.) What's worse, sometimes they do everything right and the patient still has a bad outcome. Medical science is not so advanced as everyone likes to portray it... there are many unknowns and much beyond their skill.

It appears to be true that insurance rates are a very large factor in driving many physicians out of practice or the state. (Especially in obstetrics... childbirth is inherently risky and the emotional stakes of the patients' family are the highest.)

I don't like liability caps, for all the reasons stated above by other posters. Attempting to fix the insurance problem through liability caps is a terrible solution to this problem. But the problem still needs a solution, and it needs one most urgently.

I am tempted to vote for this not because it is a good law, but because any partial fix to this problem now seems better to me than the right solution in two years.


"You mentioned the famous McDonalds coffee case."
My opinion remains: It is ridiculous (in the true definition of the word) when the woman spilled something on herself and received ANY trial at all. Coffee requires BOILING WATER to make. Coffee is hot, period. And anyone in public who doesn't understand the connection between Boiling Water and Burn truly needs to be locked up.

"so you have some more information about what really happened"
I believe that people who speak of 'more information' in incidents like this are looking for sympathy, or other unrelated emotional tricks, to let the woman off the hook. She made a mistake opening the cup of recently boiling water while seated. That is not McDonald's fault and the judge should have thrown the case (and the woman) out of the courtroom.

"It is one thing to make snap judgments and rant about issues as you often do in these comments, but it is quite another to call another reader names."
I didn't call him a retard, I asked if he was one. My reaction was over the top, but within reason considering Wm's misunderstanding.

Steve, I feel for your OB/GYN friend who's paying too much in insurance premiums to support bad docs.

I have a radical idea that would bring down insurance rates.

...wait for it... wait... wait... OK, here it is: How about capping insurance rates?

Not to be too simplistic about it, but wouldn't capping insurance rates cause them to be lower? Oh, and that would simply mean that insurance companies would ensure doctors that keep their costs low (the good ones) and punt the ones that are too expensive (the bad ones).

Just a thought... (Oh, and a disclaimer: I don't speak for the campaign. Just myself.)

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