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Mark Bello
Mark Bello
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Damage Caps in Medical Malpractice Cases: Unconstitutional?

29 comments

The battle lines are being drawn in California over the issue of caps on Medical Malpractice recoveries. The Consumer Attorneys of California may be teaming up with Robert Peck, the Washington D.C. attorney who has been successful fighting caps on constitutional grounds in various states, to challenge MICRA (Medical Injury Compensation Reform Act of 1975). KCRA 3 in California reports that a recent challenge was denied in the state court of appeals, but may be on its way to the California Supreme Court.

Attorneys are well aware of these laws that restrict an injured or disabled person’s access to justice. I am not certain the public is aware of the outrageous results made possible by these justice-restricting laws. That is why I have been actively blogging about these issues at this location and many others. Without these restrictive laws, if you or your loved is maimed or killed by a medical mistake, there are no limits to how much money you can recover; you submit your case and damages to a jury and the jury decides how much your loss is worth. Components of recovery are usually medical expenses and other out of pocket expenses (in death cases, for instance, these would include burial expenses), lost wages, and the intangible, "pain and suffering". It is pain and suffering awards (and damages that punish outrageous conduct, called "punitive damages") that the pro-insurance company caps are designed to limit. Pain and suffering and/or punitive damage awards can be millions of dollars. In California and other states with these caps, the pain and suffering recovery is limited to $250,000, a cap that was established over 30 years ago.

It doesn’t matter to the pro-insurance groups (some of your own legislators are part of this group-remember that next time you step into the voting booth) that, sometimes, the circumstances of a catastrophic injury or death require an award of millions for the injured person’s sustenance. The pro-insurance, anti-consumer guys just don’t want to pay it. They would rather the insurance companies hold onto it as "profit" and we all know that insurance companies make billions in "profits". They would rather you pay for it in public assistance. That’s correct, PUBLIC ASSISTANCE; without being appropriately compensated by the insurance company and the medical facility that took on the risk and received compensation for it, who do you think is going to support the injured, disabled and survivors of those killed?

The KCRA piece features the case of Stanley Stinnett who died as the result of a "series of medical mistakes" in a California hospital. After his widow settled with the hospital, the case went to trial against the doctor and the jury found in her favor, to the tune of $1.4 million in medical expenses and wages, and $6 million for pain and suffering. Under current law, she’ll never see the $6 million; her recovery is capped at $250,000, $5.75 million less than the jury awarded.

There is certainly an argument to be made that restrictive laws like MICRA result in lower insurance premiums for doctors. The argument suggests that health care is, thus, more affordable. The fear is that "good doctors" would leave the state. But, punishing bad doctors with higher rates and rewarding good ones with lower rates would accomplish the same thing, as would a concerted effort by the medical community to improve transparency and reporting and to limit careless medical mistakes. Why punish the victim/patient? As Chris Dolan, an attorney/member of the Consumer Attorneys of California says:

"It (capping pain and suffering at $250,000) was just a terrible thing to do to people who’ve been harmed and a great thing to do to the insurance companies’ bottom line,"

This is a question of conscience; it is a question of justice; it is a question of fairness. The caps argument reminds me of the Ronald Reagan "trickle down economics" theory that George Bush senior once called "voodoo economics". The suggestion that, somehow, the insurance company profits made on the backs of the injured, maimed, disabled and deceased will "trickle down" into the pockets of consumers and doctors is ludicrous. It is also grossly unfair to the one of the weakest segments of our society. The threat of a large medical malpractice award is a strong deterrant against bad doctors and keeps us safer. If there are limited or no consequences for bad behavior, bad behavior will continue. It is really that simple.

Lawsuit Financial provides medical malpractice lawsuit funding. It is one of a very select group of legal finance companies that has the expertise to underwrite and fund medical malpractice cases. Cap or no cap, we fund cases against their prospective case value; thus, arguing for the abolishment of caps does not have any significant, direct, benefit to our company. However, Lawsuit Financial is a pro-justice, pro-consumer company. As such, we will continue to stand up for justice, in as many forums as possible. Please, show your strong support for the abolishment of caps or limits on recoveries in medical malpractice cases and/or other personal injury cases. Contact your elected officials, find out where they stand on these issues, and let them know that you will not vote for someone who supports these types of injustices.

29 Comments

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  1. Mike Bryant says:
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    You are nailing home, the point all the frivolous talk of tort reform is truly to limit and to eliminate their liability for problems they cause.

  2. Jim O'Hare VP med mal claims says:
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    Why not just do away with policy limits of the physician’s policy? Leave it open to compensate without end. Would that work for you?
    Money is objective and pain is subjective, therefore not subject to measurment via length, mass or depth. The cap is the only thing close to a ruler. We can argue the limit, 250k or 500k. That does not matter.
    Tell me right now what 4 minutes of 7/10 pain, to an extremity, suffered by a 65 yo Navy Seal that is in a coma? You are weighing smoke. If my $250k house gets blown down, I can measure the damage via the policy and the value of the house- Objectivly.
    Is the real goal to make your client whole or to reach for the lotto number at the expense of the doctor, hospital or insurance company? I measure every other element of damages, Why is P&S immune?
    Until the plaintiffs bar comes up with a reasonable ruler, caps are all we have for pain and suffering.’
    regards Jim OHare VP med mal claims

  3. Mark Bello says:
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    Jim: In some respects, you are correct. Policy limits act as a “reasonable cap”, in some instances, to malpractice claim. However, the doctor usually is someone of considerable means, so he has a choice as to how much coverage is necessary to protect his own pocketbook. If he chooses $250,000, he will, most likely, have additional exposure. That’s a lot different than the insurance industry charging doctors enormous rates and have their own pocketbooks protected for any amount over $250,000 by government intervention. Caps on liability awards for the most profitable companies in America was the first corporate “bailout”, and no one (except those of us in the litigation business) knew about it. All of the bank and auto company “bailout” criticism is almost laughable with liability caps having been around for 30 + years. The bottom line is that if the “bad doctor” isn’t responsible for an amount that adequately compensates for a catastrophic injury, the taxpayers pick up the slack and the insurance company is laughing at all of us. The “bad doctor” suffers not at all, learns no lesson, and continues to practice bad medicine. Despite your pro-insurance company slant, surely you can see that, if the doctor was negligent, and if the intangible damage is worth more than $250,000 (no, I am not capable of providing you a reasonable measurement, that’s what trials, juries, and judges are for) it is not for the legislature to decide, arbitrarily, at a number picked out of a hat almost 35 years ago, what pain and suffering is worth. It is the suject of proof, in front of the trier of fact. Every case is different; every injury is different; every personal situation and impact on that personal situation is different. That is why caps, in my humble opinion, are unconsitutional; they fail to properly treat and weigh individual situations with fundamental fairness to each individual. They fail to properly quantify the harm caused.

  4. jim O'Hare says:
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    Dear Mark- Thanks for your reply. I believe that you have decided that the appropriate ruler for pain and suffering is: the emotions of a jury. What ruler do they use? anything objective? Let us argue the size of the cap ,but you cant have infinity as a possibility. Explaining pain to a jury is real sexy for the plaintiffs bar, not so much for the defense. I am all for paying claims and making the client whole. What if all doctors went bare and placed all their assets in their spouses name? Do you take cases where there is no insurance? My guess is no. If I let you pick the number of a cap, what would it be.

    You say pain is subject to proof- how much per pound or yard or ton. You conclude your last statement that they( the legislature) fail to properly quantify the harm caused. That is the point- you cant quantify pain and sufffering and until we get a ruler/scale- there must be a cap. You pick regards Jim

  5. Mark Bello says:
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    Jim: Obviously, we will not agree on this; we come from opposite experiences and have deeply held convictions about the issues. I simply suggest that juries decide cases on the facts and the law, as instructed by the judge. Whether or not emotion enters the equation is beside the point. The judicial system is one the our constitutional framers guaranteed us; it is not for the legislature to decide the extent of damages; it is for the jury or judge to decide. A 35 year old cap figure, arbitrarily decided upon by an ancient legislature, may provide justice in some cases, but not all. All cases and all plaintiffs were not created equal and that is the problem. “Infinity” is not the cap; “reasonableness” is. If a jury decides unreasonably high due to “emotion”, a reasonable judge has power to reduce the award. That is an appropriate check and balance. What is the value of your child’s life when something goes wrong on the operating table? $250,000? You know better. Regards, Mark

  6. IKE DEVJI, J.D. says:
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    As an attorney that protects doctors from the bottomless appetite of the litigation system I will have to agree with Jim as to the yardstick used today, which is based on collectibility as much or more than fault, negligence and pain and suffering.

    The idea that liability insurance limits cap collection is ABSURD – if the defendant is collectible and has assets the contingency fee plaintiff attorney would be making a poor business decision is settling for some offer against the $1MM policy. I warn our clients that merely being “good” or right is not enough. The average malpractice award nationally is $3.9MM plus, and this socially, politically and economically hostile climate is all too eager to take money from the “evil rich doctor” and give it to the poor patient. This is where the flawed “human” element of the law eneters the picture and where emotion does infact play a very real role in the verdicts we see handed down every day.

    What I’m seeing among the thousands of doctors we protect is the following:
    – Increased barriers to rightful compensation;
    – Increased litigation against doctors of ALL types as people look to the “lawsuit lottery” for alternative income;
    – Increasing malpractice premiums and decreasing lawsuit protection from the policy itself due to “consent to settle” and “defense inside the limits” clauses used by teh carrier to limit their own liability.

    Do people who have been harmed deserve to be compensated – of course. Are caps the right way to limit that recovery – maybe. Are lawsuits misused as an income source by MANY in the system – EVERY DAY.

    Ike Devji, J.D.

  7. Mark Bello says:
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    Ike: As with Jim, I agree with some of what you say. I don’t doubt that there are instances where juries reward plaintiffs because the doctor is “rich” and the plaintiff is “poor”. And, I argued that a “rich” doctor should choose that amount of insurance that appropriately protects his personal assets; I didn’t say or even intimate that policy limits “cap” recovery against a doctor. What both you and Jim fail to discuss, though, is PHYSICAL CONDUCT and INNAPPROPRIATE MEDICAL RESULTS that lead to any $3.9 million verdict. These types of sums are not paid for no reason; my experience is that attorneys who do not have the goods against a doctor will get no-caused at trial. I invite IB members to share their experiences in that regard. Your $3.9 mil statistic is misleading because it does not include an offset for “$0″ awards. Are there excessive verdicts? Sure, there are. But as I said to Jim; if they shock the conscience, they can be reduced by the trial judge on a motion. I am simply saying that a $250,000 cap in ALL situations is an unjust remedy for most. Are caps being used to mistreat, misdiagnose and otherwise fail patients without adequate recourse in the legal system? EVERY DAY! Are insurance companies profiting, enormously from caps? EVERY DAY! There has to be a better way than violating a patient’s constitutional right to a trial by a jury of his/her peers. Thanks for writing. Regards, Mark

  8. James Cool says:
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    How is legislators weighing the value of P&S different than juries? Please explain why one is preferable to the other.

  9. Jim O'Hare says:
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    This is a good discussion and wait til my wife hears that sombody agrees with me- Thanks Ike. I try to step back from all issues that I am too close to- like med mal. Difficult but try looking into the other end of the tunnel.

    A few things:
    -The cap varies by states; it is not $250k everywhere, but it is the lowest that I have seen.
    – If a jury returned a verdict for a billion dollars, would this shock your conscience and move the court to reduce it? What shocks the conscience when ARod makes $25 mil/yr
    – RE a jury of peers!! you must be kidding. The jury of peers is for the benefit of the defendant, not the plaintiff. That standard is never met. If the Dr was caught shoplifting maybe Joe the plumber is good for a juror. For understanding retrograde cholangio- pancretatograms- not so much.
    – Blacks defines peer as equal rank and station. I’d settle for a podiatrist, engineer and attorneys for peers. In 25 yrs I have never seen a Dr with a jury of peers. Never
    – In my experience, I try to always take winners to trial, and nationwide 80% of the wins go to the doctor.
    – THe idea is to make your clients whole and the value of any case is what you say yes to or the policy limit, no matter the injury. Not you personally- over the past 25 yrs.
    – I am the VP of claims for PIC, the 2nd oldest PL insurer in Florida- In biz since 2003. 2 Dozen companies have come and gone since. a tough biz.
    – What would really help is a change in forum to arbitration. Peers decide the med mal, The hollywood cinema amping up verdicts is flushed, the courts get declogged, more $ goes to the injured,premiums come down, defensive medicine is reduced and the Cubs win the world series.
    – Not palatable? why?- It removes the chance at a lotto number.
    – What would your auto insurance cost if P&S could be compensated open ended.

    By the way the cost of any case from soup to nuts results in the injured patient getting maybe 42% of the outlay. Shouldnt that # be alot higher? How about a million dollar cap?
    regards Jim

  10. Mark Bello says:
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    Jim: Again, a lot of what you say is true. That you choose the trials and 80% of the wins go to the doctors is the point I was making to Ike. His $3.9 Mil number does not factor the no causes. I don’t prefer “offensive” medicine to “defensive” medicine; I prefer that doctors adhere to the appropriate standard of care and be liable for the damage they cause when they don’t. I don’t want the legislature to decide what an individual’s pain and suffering is worth. The “lotto number” (as you call it) risk, will, hopefully, keep doctors more careful. Hitting the lotto when you’re healthy is a lot better than winning a similar sum as a quadriplegic from a botched neck surgery. Loss of life or spending the rest of your life with a condition like that is, simply, worth more than the numbers you are suggesting as ‘fair’. The numbers would need to be that which sustains a reasonable standard of existence considering your condition. That’s why caps (especially $250,000) are so unfair; they don’t take into consideration individual situations and the possibility that more dollars will be required to maintain a reaonsable existence in the catastrophic case.

  11. jim OHare says:
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    Thanks Mike- Is there any P&S worth less than 250k? If so, how do you know that? How much less and why? The quad case with the botched neck surgery gets settled and the P&S doesnt enter the picture. To say that open ended capless recovery keep Docs on their toes is ludicrous. If we hang all drunk drivers immediately, would that eradicate MVA fatalities due to ETOH? No it wouldnt. Docs dont practice medicine well in order to prevent med mal suits, just like NASCAR drivers dont race just to avoid accidents.
    No cause cases still cost the insurance company plenty and are obviously w/o merit to gain the no cause. I know that is not entirely true, just like all cases arent brain damaged triplets or quad amputees. My argument started with the premise that you can not measure pain, suffering, joy or peace. My point is that this can not be weighed nor measured by anyone- legislature or jury. To me pain is worth alot, especially if it is me in pain. There is no way to calculate it or compare pain. Until we can count how many angels fit on the head of a pin, I believe Heavan has a 15 angel cap, A cap is the only way to address it. you pick the number. You cant underwrite nor collect infinity. regards Jim

  12. Ike Devji says:
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    Gents – thanks all for your input and civilized discourse on this issue. I think we are closer to agreement on this issue than we are apart. We all want those injured by shoddy care compensated, and it sounds like EVEN Mike (lawyer 2 lawyer joke) does not want to see the system abused.

    My personal experience however, is that the HNW and UHNW people I work with are targeted and extorted into settlements for fear of exposure to a rabid jury and often pursued regardless of merit simply because the offer a big payday. You are correct, there is no such thing as a jury of peers for this kind of client.

    Yours, Ike Devji, J.D.

  13. Mark Bello says:
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    Jim & Ike: My name is “Mark”, not “Mike”, unless you were referring to “Bryant” who was the first to comment on this post. Briefly, I do not advocate for a blank check; I advocate for a fair hearing and verdict, for the doctor and for the injured patient. That is not accomplished by means of an articficial cap. The trouble with caps is they almost always apply to the serious cases where the argument for reform always refers to “frivolous” cases. Why do we need a cap to correct the problem of “frivolous” lawsuits? What “frivolous” lawsuit have you guys handled that hit for $250,000 or more in pain and suffering? Aside from the fundamental unfairness of applying the same cap to every plaintiff, regardless of their level of pain and suffering, the big lie of tort reform has always been that it penalizes the serious injury victim, not the ‘frivolous’ filer. Regards, Mark

  14. ike devji says:
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    Hi Mark – sorry about the name mix up. Your experience seems to be that “mostly” only good law suits with merit are filed and pursued aggressively.

    My experience is that wealthy visible people who have even the appearance of wealth are routinely targeted by frivolous lawsuits. I handle these issues every month without fail, and not just on the medical malpractice side. We are seeing huge spikes in bad suits in every area including from employees, who win 75% of the time.

    I guess this clarifies the different view from our respective sides of the fence.

    Here are some recent examples:

    TEEN DRIVER LIABILITY FOR PARENT
    Our client’s 16 year-old child was in an accident in which she was found to be not at fault. The other (at fault) driver was a middle aged professional. Upon discovering that the girl’s father was a surgeon, the demand letters started coming from the plaintiff. The policy was 100/300 the demand in projected to be roughly $2.85 million, including pain and suffering lost wages, physical therapy and medical bills.

    EMPLOYEE IDENTITY THEFT LIABILITY FOR EMPLOYER
    Using information from dormant patient files, trusted employee/manager of over two years stole the identity of over 200 dormant patients, creating liability of $2 million in fraudulent charges. Client now has 200 angry patients and their attorneys considering suit (including class action) against him and the practice. This is despite the fact that the Dr. had no involvement of any kind, and had no knowledge of the employees’ actions until law enforcement officials burst into his office during patient visits and sized office files.

    REAL ESTATE TRANSACTION LIABILITY
    Typically, as interest the RE market collapses investors bring a wave of “errors and emissions” lawsuits against realtors and sellers and mortgage brokers. These suits are typically an attempt to recoup the loss of expected profits (what they buyer expected to be able to make versus what the market actually bears) or as grounds to rescind valid realty sales contracts. These suits typically seek monetary damages based on a portion of the sales price, and typically include punitive damages, attorney’s fees and interest. We have DOZENS of these.

    LACK OF INFORMED CONSENT AS SOLE BASIS OF MALPRACTICE
    Client had female patient at cocktail party who was approached by well-known personal injury attorney. During course of conversation it became known that she had recently had her “tubes tied”. The attorney asked if the patient had signed an informed consent form. She said she had not and the attorney encouraged her to sue. She resisted at first, saying that she had no desire to sue her doctor and that the procedure had gone off perfectly, without complication of any kind. The attorney expressed a dollar figure he felt he may be able to obtain and the patient quickly changed her mind agreed to the suit. The physician, whose work was perfect, settled the case personally for $175,000.

    HIPPA SCAM – Patient grabs roster from doctors office while discussing his bill. Calls all patients on list and suggests class action against doctor for not protecting the HIPPA info THAT HE STOLE!

    BAD TIMING
    Dentist works on elderly (80 yr old) patient and 6 hours later the guys dies at home of cardiac arrest – family wants seven figures for wrongful death, goes to media and destroys the guy for nothing.

    DEEPEST POCKET
    Surgeon completes basic surgery and it goes off perfectly. Patient dies later that day due to mistake of anesthesiologist who gives her a pain block post surgery. Family sues all doctors, the surgery center and the practice and pursues only the innocent surgeon aggressively because others have no real $$$$.

    Ike Devji, J.D.

  15. James Cool says:
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    Ike:

    Even if we take the examples you give as gospel truth and the complete picture, you know as well as I do that the exceptions do not prove the rule.

    If doctors win 80% of the time at trial, are not juries reliable? If they are reliable enough when you win, why are they not reliable when you lose?

    Also, no one has answered my question of why legislators should be the ones valuing P&S as opposed to juries. This is the key question and I am confounded to why you’ve both avoided it.

  16. Mark Bello says:
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    Jimmy: You are right on. But, if I was Ike, I would answer your question like this: ‘Legislative caps limit my client’s exposure in serious cases. I can try more cases to a verdict, because I will never get seriously hurt on non-economics by the jury. The out of pocket obligations are known to me, thus, much less risky. I like caps because I hate the risk of exposing my clients to serious non-economic recoveries. Even though juries are “reliable” 80% of the time, I can’t risk trial knowing that a jury can render a 7 or 8 figure verdict against my very, very negligent client. As to those cases that I used as an example, I used them as others have used their versions of unusual cases, to paint a picture of a system that is broken and needs repair. Although the system really isn’t broken, since I win 80% of my jury trials, playing the “frivolous” card is very effective in making my argument’. That is what I would say if I was Ike. But I am not, of course; I am on the side of truth, justice and the American way.

  17. Steven Peck says:
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    The $ 250,000.00 cap is ludicrous and ancient and does not reflect fairness to the injured, especially the horrible pain and suffering the elder suffer in nursing home and assisted living facilities. The cap should automatically be abridged for inflation and the verdicts paid based upon the facts not some arbitrary law.

  18. Jim O'Hare says:
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    I left work early and missed all the fun ! Re jim Cool- my response to yours is 1/2 way up the stream… -My argument started with the premise that you can not measure pain, suffering, joy or peace. My point is that this can not be weighed nor measured by anyone- legislature or jury.

    I have 4 new cases in front of me to set up. One is a failiure to do a prostate exam to a guy w/o a prostate. Should do a DRE anyway.??
    The second is my insured is named just so the plaintiff is protected from the possibility of an ‘empty chair”. No treatment provided
    THe 3rd is a Flr to prevent a suicide. The ME found 12 different drugs in the decedant and not one was prescribed by my doc.
    The last one my Doc is a physiatrist who sees the patient preop to tell him about the planned therapy post op. He dies during the surgery. My guy is sued because he has a 500k policy, obvioulsy, never got to PT – The decedant is Hispanic in Miami with 3 young kids. I am looking at 1/2 a million dollars expense with no merit for these cases and a hope for the proper result.

    Back to the caps- Should legal malpractice have open ended caps? Name any one form of insurance or indemnity mechanism that does not have an upper limit? Even punitive damages are limited to a factor or the measured losses. The key is the word measured. 250k is light and I have invited you to pick a cap. Actuaries, underwriters can manage the preiums cheaper if they know the sky is not the limit.

    I have payed alot of indemnity due to the lack of caps. lack of merit due to intangibles to protect my insured. The potential for a Docs life to be ruined after years of school training and no sleep. is terrorism. If there was a 1 million cap for P&S. would that limit your recovery? I have asked how you value the PS component of a case? All I can get is not an evaluation of PS.

    Not everybody is Dr Mengela that is involved in a suit. you cant legislate against mistakes they happen and turn into suits. Malpractice is a different level all together and caps are a civilized approach. Regards jim

  19. James Cool says:
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    Jim:

    You and I have gone around on your position and I think we’ve just reached a point of reasonable disagreement. You advocate a mandatory arbitration system and for a variety of reasons I am uncomfortable with that. But the reasons why each of us like and dislike such a system are based largely on voodoo, fortune telling, and speculation. Thus I am willing to agree to disagree on that one and acknowledge you make a defensible, rational point.

    I was really looking for those who advocated caps to respond, not you since you don’t really advocate caps, you advocate systemic reform.

  20. jim O'Hare says:
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    Jim – you havent read the flow. I am an advocate of caps, as there is no scale to weigh pain. This is needed and the only measure to maximimize and minimize the recovery of the subjective notion of pain, measured by a fictitious and uncalcuable concept.. I have rec’d no answers to any of the questions that I have posed. How much is alot ? loss of economics is objective and can be responded to objectivly via measurement. Until we find a pain scale, a subjective cap is required to measure a subjective value. I appreciate the discourse. regards O’Hare

  21. James Cool says:
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    Jim:

    I think I see your position, but admit I’m still confused. I think the questions you asked (e.g. “how much is enough”) aren’t getting answers because it depends on the case.

    If you are in favor of caps, do they not pose the same problem? Are not legislators, rather than juries, simply assigning value to the maximum amount of P&S a person could experience? How is that any different than what a jury does?

    Setting aside the actuarial benefits caps provide insurers (and that’s a legit desire for your industry) how are they more fair than jury determinations? If a legislature says “500k is fair compensation for the most any human could suffer” how is that different than a jury saying “500k is the most THIS person should be compensated for their suffering?”

    Am I making sense? I realize this may be unclear.

    Also, have I fairly addressed your questions?

  22. Mark Bello says:
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    Jim: There is a “scale” to measure pain; it is the sound judgment of a judge or jury who has heard all of the testimony from both sides, reviewed all of the exhibits of both sides, and received deliberation instructions, . Instead, you advocate an arbitrary cap that covers all people, all injuries, all deaths, all situations, all negligence, all conduct, all levels of behavior. You are unwilling to concede that each situation is different and caps are often unreasonable and unfair. As a taxpayer, you are going to take care of deficiencies, over the cap figure, with public dollars rather than private insurance purchased by the perpetrator or the private funds of the perpetrator him/herself. A $250,000 cap for a catastrophic injury is absurd on its face. You can continue to argue until you are blue in the face that there is “no scale to weigh pain”, but you know that there is. Again, it is the sound judgment of the trier of fact. What you really advocate is that if the system is to be, sometimes, ‘unfair’, it should always be unfair to the victim, never to the perpetrator; that is the fatal flaw of your logic. If negligence is proven and the perpetrator found responsible, the benefit of any “system unfairness” should always go to the innocent victim. Jimmy says: ‘we have reached a point of reasonable disagreement’. I don’t agree; a cap on pain and suffering at $250,000 for a catastrophic injury or death is not merely ‘unreasonable’, it is obscene.

  23. IKE DEVJI, J.D. says:
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    Jim – it seems you and I have a similar view based on our personal professional experience.

    As for the “If I were Ike” comments – If you were me you know that the cases I offered as examples are the cases my firm and I see every day – not one-offs or exceptions. A discourse on this issue requires you accept that the way that we must accept that PI attorneys only take only those cases with real merit.

    Speaking of cases with real merit, JIM you will like this – there’s a PI firm in TX with a billboard across from a hospital that essentially says, “IF YOU DON’T LIKE WHAT YOUR DOCTOR TOLD YOU, CALL US” I’m sure they will have lots of good, reasonable calls.

    Ike Devji

  24. jim Ohare says:
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    250k is way too light as a citizen. I like it as a claims guy. Your position is that no figure is too heavy. I suggested 1 million w/o response. Not all injuries are catastrophic, are they?

    Jury does not = equal to sound judgement. My arbitrary cap seems fitting for an arbitrary concept. I have dozens of cases where juries clearly goofed.

    When you buy life insurance you place a value on your own life. You pick your own cap- but there is a cap, and therefore a limit. I realize that you do the best that you can, to get as much for your client as you can, regardless of the cases value. I am ok with that. Can one of your clients suffer 100 million worth of pain. If the answer is no, then you think there is a limit. What is it? If yes, tell me about that pain and calculation.

    In insurance there are many calculations and equations for premiums and coverage. Math is the universal language and when you introduce infinity into any math eqation , you get infinity as a result; therefore rendering the equation useless. That is one reason the legislature places a cap. I will leave it up to you to select some mechanism to compensate PS within reason.

    An open ended ticket can not be considered reasonable. Last offer 1.25 million cap

    regards Jim

  25. James Cool says:
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    Question: Why should legislators, rather than juries, determine maximum P&S damages?

    Jim:

    We’re not talking about infinity. All civil judgments are subject to judicial remittitur–meaning they can be reduced by the judge if they are excessively high. Additionally, there are hard and fast restrictions on punitive damages, with many jurisdictions limiting such damages to single digit multiples of the economic damages.

    Why is no one, particularly Ike, willing to answer my question:

    WHY is it better to have LEGISLATORS valuing claims, than JURIES????

    All I’ve gotten in response is the repeated argument that damages ought to be capped and that you cannot measure P&S. I’m willing to agree to disagree on these points or I’m willing to argue, whichever you prefer. But we cannot discuss this issue intelligently until someone explains to me why legislators can do or should so something instead of juries.

    Once you answer this question, I’ll happily discuss the measurement of P&S or whatever else you like.

  26. Mark Bello says:
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    Jimmy: I answered your question in my ‘Legislative caps limit my client’s exposure in serious cases. I can try more cases to a verdict, because I will never get seriously hurt on non-economics by the jury’ answer at 9:18 last night. The reason defense attorneys and adjusters like caps is because they know exactly how much money they are risking by letting the pain and suffering issue go to the jury. Who cares if a ridiculously low cap screws the victim?

  27. jim OHare says:
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    Dear Mark-

    There should be no limits, that is your position. Why should there be limits on economics? Take that answer and just change out P & S. The Exxon Valdes claim had a limit. What other endeavor in life has no limit? The trade center was counted as one incident even though each building was struck independently. Pick a high limit – I do not care.

    Dear Jim – legislators are one group, arguably gather to provide a learned opinion to address a problem based on experience and the global good. At least that would be the intention. They dont evaluate the claim, they decide that this ferrari will have a redline of 7500 on the tachometer ,before the engine blows up. Why have a redline, it only limits the speed.

    A jury is a onetime gathering of mixed lot with no experience, nor awareness of a problem, expecting a Law and Order show. Maybe the first time in their life that they get to make a big decision, with numbers they have never seen. Some sort of guidelines and/or uniformity would be absent from a jury.

    My goal is to protect my insureds financial health and his good name. W/o a cap , I cant do that. A doctor may bail on a defensible case for fear that the capless award hits.

    Not sure if you guys are reading this. $250 is too light. Is there a cap that isnt?. It doesnt really matter as they are in play, they should be higher because it is good for everybody not just your client at the time. We all end up paying for it. Last offer 1.5 million cap. regards Jim

  28. James Cool says:
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    Jim:

    Thanks for answering. I’d love to hear Ike’s take.

    My counter to your argument that legislators are better qualified to do this would be to ask whether you think a legislature can fairly assess the value of injuries they know nothing about and circumstances which have not yet come to exist? If so, why are they more likely to reach a just result than a jury who knows a particular case intimately?

    Also, you seem to have a very low opinion of juries. Remember, a jury of 12 has the hive mind and thus collective intelligence of 12 people. It operates similarly to the legislature, they may even be more qualified than legislators. Moreover, they know the case intimately.

  29. Mark Bello says:
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    Jim: How about a $10 Million cap and open punitives for gross misconduct?