A sad example is provided by Texas. Protection against bad doctors was provided in Texas by three things: the Texas Medical Board, malpractice suits, and hospital managers. The legislature greatly limited the amount patients can win in malpractice suits, and they made it so hospitals cannot be held liable for hiring incompetent doctors unless the plaintiff can prove the hospital knew the doctor was an extreme risk and ignored this--and they made it so the plaintiff usually cannot get access to the documents that would be needed to prove this.
This shifted most of the burden of protecting Texans from bad doctors to the Texas Medical Board, which was not designed for that. It was more designed for licensing and ensuring that doctors keep with standards, not for investigating bad doctors. The Medical Board was not given any more resources to deal with this new and heavy workload, and so bad doctors could practice much longer than they would have been able to before the legislature decided to do their tort reform.
This article on the Dr. Christopher Duntsch case shows who wrong this can go: http://www.texasobserver.org/anatomy-tragedy/
For decades Texas juries were awarding so much money so often it became impossible for many high risk specialties, such as delivering babies (think of the downside versus upside), to get insured. In 2000 around a quarter of doctors in Texas were being sued for medical malpractice. Most insurance companies stopped writing insurance for doctors in Texas and the few remaining cooperatives faced bankruptcy. This is why both the Texas legislature and Texas voters (Prop 12) decided to limit damage awards in 2003 to what is now around an inflation adjusted $2 million per victim. Similar things happened in other states with California leading the way in the mid-1970s with a even more restrictive law (no inflation indexing - still the same $250,000 cap as 40 years ago)[1].
Remember the Texas lawyers and juries who have pretty much ruined the US patent system. I that who should an best police doctors? The Texas Medical Board seems like a pretty good approach: people with actual medical training and experience reviewing complaints about doctors. Maybe there is something better for getting rid of incompetent doctors than the Texas Medical Board (ideas pleae?) but unrestricted litigation proved unsustainable.
[1] http://en.wikipedia.org/wiki/Medical_Injury_Compensation_Ref...
"(12) "Noneconomic damages" means damages awarded for the purpose of compensating a claimant for physical pain and suffering, mental or emotional pain or anguish, loss of consortium, disfigurement, physical impairment, loss of companionship and society, inconvenience, loss of enjoyment of life, injury to reputation, and all other nonpecuniary losses of any kind other than exemplary damages."
[1] http://www.legalmatch.com/law-library/article/texass-cap-for...
[2] http://www.statutes.legis.state.tx.us/Docs/CP/htm/CP.41.htm
I also would guess that the US would have a similar legal system, which allows for such defences from such claims.
It seems that if courts are paying out too much this is not an issue to do with people making frivolous claims and cashing in but with the way the judiciary is deciding on the claims. If it was more difficult for claims to be successful in court this would stamp out such claims instead of imposing monetary caps which don't allow for the flexibility to compensate each individual case.
I find it strange that the legislature is getting involved in an area which is really up to the judiciary to perform its function...
When it fails is when, as grandparent indicates, the bureaucracy (TMB in this case) wasn't given enough additional resources to handle the increased workload.
Come on that's not fair. Companies shop for the most technically mal-adept cohort to decide their cases, because they strategize that they can hire a more persuasive lawyer. The residents of East Texas didn't design the legal system that surrounds patent disputes. This is a weakness in the law.
I mean if you are happily awarding damages to heart surgeons who only save half their patients when the rest of the planet does not better, then the problem is in the jury box? no?
Without such penalties, there's a reduced incentive for administrators to notice that, say, surgeons are frequently leaving scalpels in patients. [1]
I get that people have an adverse reaction to plaintiffs striking it rich (not that they really are). But what tort reformers don't realize is that the perceived unfairness of jackpot lawsuits might actually be discouraging juries from using punitive damage amounts that would actually change corporate behavior.
We might get more appropriate incentives for businesses if we said, "Ok, the plaintiff gets made whole, even for pain and suffering, maybe the lawyers get paid, but after that, punitives go to the state." The state could use the funds to educate or prevent harms similar to whatever most of the lawsuits are about, or set up a fund to compensate others harmed by the most common dangerous practices.
It'd lead to damage awards that could actually change business behavior, fewer perceptions of unjust plaintiff enrichment, and a better balance sheet for the state or state programs designed to reduce the harms all at the same time.
[1] http://www.everydayhealth.com/healthy-living/surgeons-leave-...
On damages she would get around $10.000, perhaps 5x more if she is celebrity with connections. That is not much money even in here, house costs usually around $100.000.
I think US will have to give up right to sue in medical care. If you count expenses customers will still get better care. The amount you save on lawyers could go towards better care. And if doctors screws up, you will have good medical system to fix most damages, rather then going to court with some theoretical chances.
And what could prevent bad doctors? Make gross neglect minor criminal offense. Doctor could go to jail for couple of weeks and loose its license. If enforced this would filter out bad doctors pretty quickly. And it could also force real safety practices such as recording procedures and operation check lists.
Reliance on civil courts may sound attractive to the naive, but the lawyers and institutions involved, are just as single mindedly focused on their own personal gains, financial and in prestige, as either party to the original dispute. It's not that they are necessarily systemically partial to one side or the other, but rather that they are partial to making the fight as acrimonious and expensive as possible. As that is, after all, their "side."
Additionally, in Texas for example, tort reform has done nothing to limit costs of healthcare (though it has made malpractice insurance much cheaper, which makes life nice for doctors and their insurers.)
Also, the whole "greedy lawyer" trope is a wonderful bit of social engineering. Companies figure out how to save or make money while creating risk for consumers and bystanders, and its the lawyers that are greedy. Ford saves billions making a less safe car, and its the plaintiffs' lawyers that are greedy because they make money seeking compensation for the people that get hurt by that decision.
-"lawyers are greedy" trope isn't really true, most lawyers would prefer to settle than go to trial (trial is more profitable for the lawyer) because it's a satisfying win for themselves and their client, most lawyers weigh ethical considerations heavily
-"reputation systems" can be gamed, are difficult to interpret, are vulnerable to selection bias, and exclude people who are too poor to own smartphones and computers
I too am interested to know if this means that there are more bad doctors in Texas. Having a colleague try to take the surgical instruments from you during a surgery because you are so incompetent sounds like an extreme yet the hospital did nothin after that incident.
> The Texas Medical Center is the largest medical center in the world with one of the highest densities of clinical facilities for patient care, basic science, and translational research. Located in Greater Houston, the center contains 54 medicine-related institutions, including 21 hospitals and eight specialty institutions, eight academic and research institutions, three medical schools, six nursing schools, and schools of dentistry, public health, pharmacy, and other health-related practices. All 54 institutions are not-for-profit. The center exceeds one thousand acres (or 1.562 square mile) in size. [...] The Center is where one of the first and largest air ambulance services was created and where one of the first successful inter-institutional transplant programs was developed. More heart surgeries are performed in Texas Medical Center than anywhere else in the world.
(Ironically, the TMC came about through a tax dodge)
For 'frivolous cases' to actually hit trial months of depositions, research, and meditations have to fail. If a case actually goes to trial it's because one side feels so confident in their case that mediation is not an option.
As a side note, in insurance cases in Texas, the jury is not allowed to know that any insurance money has been paid. So in a situation where someone is hurt in an accident by another driver then sues for medical expenses, the jury is not told that the medical expenses (are often) already paid for by the carriers. They're also not told that, no matter how much money they award, if it falls under the civil caps on awards (in Texas) that the judge will automatically lower their award after they leave the court room.
I agree with most of those points. Yes, the jury does not know them, and that effects their decisions. Knowing those things would also effect their decisions. Because that's how decisions work. Therefore, the stance you must take is, which scenario will yield results which are more appropriate?
I assume the jury is also not told whether the defendant has liability insurance against the results of the very case being deliberated either, which is a point just as salient. To me, it should not make any difference whether someone had the foresight to insure themselves when being awarded damages.
If I had gone into Williams & Sonoma and carelessly stabbed someone with a kitchen knife. Would that have been W&S's fault? It just makes no sense to me how we want to hold others responsible for giving us what we've asked for.
Liebeck was hospitalized for 8 days with multiple skin grafts. She asked asked McDonalds for medical expenses from the injury from the coffee and lost wages (<20k). McDonalds offered $800.
At that point she got an attorney. They tried to settle. McDonalds refused. In the trial it came out that McDonalds had more than 700 reports of medical injuries from the coffee that they were aware of. Their internal quality control manager reported that they recognized that they were posing a burn hazard to customers with the heat of their coffee, but that it was a minor concern that they were unwilling to adjust.
McDonalds admitted that not only were they burning customers who drank the coffee straight from the cup, many of whom needed medical treatment, but that this was something they were unwilling to change.
That's why the jury hit McDonalds with punitive damages of the profits of two day's sales of coffee (which the judge reduced). Through the whole process McDonalds was acting like a criminally negligent bully unconcerned with injuring customers. Punitive damages did correct this.
Starbucks coffee is not served anywhere near that hot. By their corporate guidance, the normal acceptable range of temperature for coffee served to customers is 145-165F. If you poured that in your lap, it would be very unlikely for you to receive third degree burns. The burn risk of water goes up very rapidly as temperature is increased above that. This is the entire point of the court case -- nearly everyone else in the country served coffee ~30-40F cooler than Mac, due to having found the risks too great, yet even after hundreds of complaints, MacDonalds decided to keep their temperature higher.
She initially asked for her medical costs to be covered. McDonalds declined, so she went to court.
Full thickness burns are not a trivial injury. She was at risk of death. Treatment is painful and takes a long time. She would have been left with scarring and perhaps loss of function - because a fast food chain didn't care about customer safety.
Do you have access to a thermometer? Try measuring the temperature of a cup of coffee that you make at home tree minutes after you've made it.
It's hard to blame them, too, given the facts of the matter; even the Priceonomics article considerably understates the severity of her injuries, as is common even in the most sympathetic recountings of the tale, because phrases like "external genitalia essentially destroyed" aren't pleasant either to write or to read -- or to imagine; of all the places on the human body where it's possible to sustain full-thickness third-degree burns, that's got to be the most awful. (Which says nothing of the expenses involved in surgical repair and follow-up care; given the extent of both which Liebeck's injuries required, I wouldn't be surprised to learn that her total medical expenses were pretty closely comparable to the total figure awarded her by the jury.)
Had I been on that jury, I feel certain I'd have argued for finding in Liebeck's favor from the start. Had you been on the same jury, perhaps you'd have argued otherwise -- or perhaps not; it's awfully easy to play Monday-morning quarterback on stuff like this, when everything looks so much simpler than it does from within the jury box.
This coffee was being over-brewed at higher-than-normal temperatures because the McDonalds franchise was being greedy and attempting to extract more coffee out of the grounds.
This exact same franchise had gotten past customer complaints about the dangerously hot coffee burning people.
I and my father have spilled decent amounts of normal temperature coffee on our laps in the car, it barely caused any burns at all, let alone third degree.
The coffee was excessively hot and the franchise was negligent.
Considering the likelyhood of people spilling coffee, it's not unreasonable to expect coffee servers to take that into account (just like cars are designed to take into account bad driving and accidents).
I'm sure they also took into consideration that Stella Liebeck originally asked for $20,000 for damages and had tried to negotiate several times before the case went to trial; she clearly went to some length to avoid this.
While handing over a live chainsaw is at best inadvisable, it is all the more so to throw a live chainsaw into the juggling pattern of a clown on a unicycle.
Detail often missed: she had a lid on the styrofoam cup, properly placed. It wasn't an open cup. The cup and lid were of low quality and, while they passed at lower temperatures, deformed at the serving temperature, enough that the lid popped off, causing the spill.
In addition to the serving temperature, one aspect of McDonalds's liability was the quality of the cups and lids: squeezing a coffee cup, with contents at the serving temperature, shouldn't cause the lid to pop.
Thankfully, coffee is still served at the same temperatures, and the only change was added a warning.
http://en.wikipedia.org/wiki/Liebeck_v._McDonald's_Restauran...
For anyone curious, here's the origin claim as filed: http://www.siliconbeat.com/entries/Epinions.pdf
More info: http://www.siliconbeat.com/entries/2005/12/09/epinions_settl...
Interesting article.
the evidence does not show an epidemic
of frivolous lawsuits winning jackpots
It explores this very case and issues related to it.
http://dvd.netflix.com/Movie/Hot-Coffee/70167106?trkid=22233...
It was interesting to me because I had heard about it, or rather was told about it this lawsuit and what I was told and believed about that case was wrong for the longest time. This film explores how that PR effort started and how successful it was.
If the government proactively monitored product safety and responded to complaints, it would be able to shut down dangerous practices (and doctors consistently making bad decisions) before problems happen, and also engage in education so that businesses that aren't aware that their products could be dangerous can fix the problems.
If a someone is injured, it is reasonable for the government to pay for this to support the public, because otherwise getting the financial support the unlucky injured person needs depends on being able to afford a lengthy legal battle, and also on the business being unable to pay. In addition, some decisions are a trade-off (especially for doctors); for example, getting an X-ray might increase your chances of cancer, but might also detect a very rare disease; a doctor might reasonably decide, in the patient's best interest, that given the symptoms, the increased risk of cancer is not worth the miniscule risk of not detecting the disease. If the patient is then severely injured by the disease, should the doctor have to pay out? If the patient gets support from the government either way, then the question doesn't need to be answered. It is likely that malpractice suits encourage doctors to minimise the risk that the patient can prove a tort, rather than to act in the best interests of the patient - it is very hard to prove that a particular X-ray contributed to cancer later in life.
This is also fairer to businesses, because when a certain decision is unsafe relative to other practices but has a low probability of resulting in a lawsuit, most small or medium sized business engaging in the risky practice may never actually have the bad outcome happen, purely due to luck. If the government prosecutes unsafe practices, rather than the civil courts award punitive damages when unsafe practices lead to a bad outcome, businesses are discouraged or prevented from 'playing the lottery', and the desired public policy outcome of fewer unsafe practices is more directly achieved. Likewise, businesses that play it safe by industry standards but, through bad luck, have a bad outcome are not over-punished for being unlucky (this applies especially to doctors making necessary trade-offs).
Why would she settle for the SAME amount?! Makes no sense.
Lawyers will become as powerful in society as you let them become.
It sparked a tiresomely predictable debate about hot coffee, as happens every time this case comes up; there are always a couple thousand reader comments ranging from "She was stupid" to "McD's coffee is too hot, she deserved more money". I've read a lot of them and it does get repetitive.
As I see it, the Liebeck incident was unfortunate and tragic but does not represent a trend. This hapless woman appears to have been manipulated by an angry family into hiring a lawyer and blowing this up into a big case that took on a life of its own and caused her to be reviled by advocates of tort reform as a classic example of the legal system run amok. Others hailed her as a hero for the little people sticking it to the big bad corporation.
Yet, considering that McDonald's sells 10 million or so cups of coffee a day, 70 reports of coffee scalding a year seems like edge cases. Could it not be simply that there are 70 careless people a year? Much easier to believe than that somehow the coffee is leaping out of its cup and scalding innocent customers about 6 times a month, and they each should get $2.4 million from Mickey D's which after all is a giant corporation so "they can afford it".
Now every damn cup of coffee I buy comes with a little warning "Caution! The drink you are about to enjoy is very hot!" Well, hell yes it better be hot. I asked for hot coffee, and the hotter the better.
Once, in a coffee shop in Harvard Square, Cambridge Mass., a stupid young waitress managed to dump a decanter of very hot coffee onto my lap off the tray she was carrying. I got burned on the thigh very close to my genitals, it hurt, it blistered. I got over it. They didn't charge me for the coffee. Life went on. That's a case where it truly was "their fault". But I didn't sue them or anything.
I think in my case they could have apologized a bit more profusely, but then again, they don't apologize anymore because they figure that's an admission of guilt that you'll use against them in court. That's why Pennsylvania recently passed an apology law for doctors. Yes, they have a law now saying it's OK for docs to apologize without fear of lawsuit. The tort lawyers opposed the law. What a twisted world we live in!
I'm glad to hear that you made a full recovery from your minor-but-painful burn. I doubt you would be so cheery about it if the clumsy waitress had maimed you and left you on the hook for $10,000 in medical bills.
This is why the Liebeck case always causes such controversy: there's a substantial group of people who are absolutely determined to argue with a made-up strawman instead of the actual facts. I genuinely don't understand why.
There's a bit of a difference between spilling it on oneself and being spilled on by someone else. That's not a straw man argument at all. It's a tangential anecdote. Yes, indeed, had she caused me $10,000 in medical harm, it's possible and likely I would have sought compensation from her employer. But had I spilled the decanter on myself, which is the point of the Liebeck case, that would be a different thing entirely.
There are numerous standard-form contracts (particularly in healthcare) in which that's not an option.
Though I would strongly argue to not agree to arbitration if you have any choice in the matter. If provided with a contract in which arbitration is a condition, strike and initial. It's now up to the other side.
Note the part of the sentence, "unreasonable amounts of money". That doesn't mean the lawsuits still don't happen, costing business owners thousands of dollars just to get them thrown out. Sometimes it's cheaper to throw the complainant a few thousand dollars, which they'll claim as a win, just to go away cause it's cheaper than going to court.
I was going to show two examples from my own restaurants but decided against it. You would not believe these were even considered by any attorney much less the judge who was willing to listen to them.
Anyone know how they choose their topics?
McDonalds admitted that not only were they burning customers who drank the coffee straight from the cup, many of whom needed medical treatment, but that this was something they were unwilling to change.
That is clearly not frivolous. She tried to settle. She was not looking for a big score. In the process of discovery the company was openly belligerent about their plan and willingness to continue to pose a public safety risk.
There's thousands of people cutting themselves with kitchen knifes every year too. So what? It doesn't make the kitchen knife manufacturer somehow liable if you cut yourself if they "knowingly" sell you a kitchen knife despite being fully aware of the thousands of injuries caused by them every single year.
All the stuff about how she was injured (emotive irrelevance), how other customers are also injured - is just an irrelevant distraction to the central fact that it was entirely her own fault and her own responsibility.
> “All I remember is trying to get out of the car,” Liebeck later related. “I knew I was in terrible pain.” She went into shock and her grandson rushed her to the emergency room, where she would undergo surgery and receive skin grafts.
She suffered full thickness burns. This is a significant wound. The burns were on her legs and genitals. That turns it into a medical emergency - rush to nearest hospital, let them stabilize you and send you to a different hospital that specializes in burns.
Also, the car was not moving at the time of the accident.
I am pretty sure that when granny makes coffee herself at home, she makes it at least as hot as McDonalds serves it. Whistling kettles and all.
In a country of millions of people doing stuff, sometimes the stars align wrong for someone, and they get hurt. It doesn't have to, and in fact rarely is, someones "fault." It wasn't granny's "fault" that this one time she fumbled the lid and spilled coffee. Given enough tries, sooner or later anyone would, as it is a positive probability outcome. But neither is the probability of it happening large enough to say McDonald's was "at fault" of something. Stuff happens. Sometimes nice stuff, sometime less so. No need to feed a lawyer army either way.
It's the same silly obsession with finding who's "at fault" that underpins the enormously inefficient (except for, again, for lawyers) "at fault" car accident insurance schemes in place in most states. Despite most accidents and other mishaps being the result of all manners of complicated, best modeled as random, factors. None of which are a specific party's "fault."
But of course, there's the old adage about most people ending up in law school, do so because they couldn't hack math well enough to ever get into the complex systems classes....:)
If I sell you shampoo with hydrochloric acid in it, and some gets in your eyes and you're permanently blinded, should I be held blameless because "obviously getting soap in your eyes hurts?"
But yet, iced tea and iced coffee both exist. The temperature required to make a substance has no correlation to the temperature it must be served at.
3rd degree life threatening burns? There is nothing obvious about that. This is not like a hammer but a gun without a safety one, given to people in a drive through. Most could put those in their pockets and between the seats, but some will at some point pull the trigger. One can argue about the idiocy of those that pulled the trigger and shot themselves, but it is just as well valid to argue about why is the safety off by default. Now think of safety as the temperature value.