Day on Torts

I can understand that some people don’t like lawsuits. Come to think about it, only a dang fool likes lawsuits. Litigation is stressful and expensive. Anyone who files lawsuits for fun is in need of medication, counseling, electric shock therapy, or an appropriate combination of the above.

Then, there are people who file lawsuits but don’t think other people should file lawsuits. These people are called HYPOCRITES. Here is an article that identifies some of the hypocrites.

My favorite hypocrite is Sen. Rick Santorum (R-PA). He is all in favor of limiting the rights of victims of medical malpractice. He had a different view when he testified on behalf of his wife, a plaintiff in a medical malpractice lawsuit.

Here is a nice article that defends the current tort system. It concisely articulates what many us believe in but have difficulty putting into words.

Here is an excerpt:

The tort system provides for just compensation from wrongdoers and relieves the rest of society of unfair burdens. Fundamental fairness dictates that one who suffers a loss at the hands of a wrongdoer be compensated for the wrong he has suffered. If our system of justice fails to provide just compensation, the victim, or his family, will be inclined to seek personal revenge or retribution. This promotes a spirit of vigilantism and contributes further to the breakdown of social order. Additionally, if the wrongdoer is not required to bear the loss occasioned by his wrongdoing (i.e. medical bills, lost wages, etc.) those losses will have to be borne by the rest of society. When society has to pick up the tab for the losses caused by a wrongdoer, the result is the involuntary redistribution of wealth among persons who are innocent of any wrongdoing. This is just another form of “welfare” which rewards irresponsible behavior and punishes innocent parties.

Despite what you read in the paper, lawyers don’t cause medical malpractice. Doctors and hospitals cause malpractice. Stop malpractice and you not only help patients but you get lawyers out of the picture.

Here is a profile of a company that is trying to actually do something to stop errors from injuring or killing patients. This company is trying to change “the ‘John Wayne’ style of hospital management, [where] surgeons run the operating room [and e]verybody else has the good sense to keep quiet.”

The Company reports that “the results are pretty dramatic. One of our biggest clients was running a wrong surgery once every 60 days.” After adopting the program, the error rate is now one every 619 days, 10 times better than the national average, which is 15 wrongs per 100,000 procedures.

Here is yet another article that studies what is actually going in the medical malpractice insurance industry.

The NYT article says that “a study to be released today by the Center for Justice and Democracy, a consumer advocacy group in New York, may add fuel to that debate [about the controversy over insurance rates]. The study, compiled from regulatory filings by insurers to state regulators, finds that net claims for medical malpractice paid by 15 leading insurance companies have remained flat over the last five years, while net premiums have surged 120 percent. From 2000 to 2004, the increase in premiums collected by the leading 15 medical malpractice insurance companies was 21 times the increase in the claims they paid, according to the study.”

Will state legislators who bought the prior misrepresentations reverse the tort reform measures they passed? They should. They were sold a bill of goods.

This decision may give some of you peace of mind and cause others of you concern. An appellate court in Massachusetts has ruled that sexual partners do not owe a duty of care to avoid negligently injuring one another.

Apparently the evidence, taken in the light most favorable to the plaintiff, demonstrated that the female defendant’s sudden and unexpected change in position resulted in a fracture to her partner’s penis.

Noting that “[t]here are no comprehensive legal rules to regulate consensual sexual behavior, and there are no commonly accepted customs or values that determine parameters for the intensely private and widely diverse forms of such behavior” the Court held that no duty of care existed and affirmed the dismissal of the case. The Court did say, however, “it is appropriate that [sexual partners] be held to a standard that requires them not to engage in wanton or reckless conduct toward each other during such consensual sexual conduct.”