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What we need is tort reform along with doctor reform. If a doctor is guilty of real malpractice there should be severe penalties for the doctor. Instead, he's allowed to continue to practice. That allows for a small percentage of doctors to raise the costs for insurance for all the other doctors.

Loser pays would be a great part of tort reform. It would stop over half of the nonesense claims. If the jury understood that a guilty verdict against a doctor would result in him losing his license, they wouldn't be so free with the rewards. Now they figure it's some insurance company that will pay. It's a vicious circle and the only ones making out are the lawyers and the insurance companies. Ever wonder why they don't fight the claims.....they get a percentage of the premiums as profit.

Tort reform and "loser pays" are two of the worst ideas that have ever entered the minds of the public. Fortunately, the people that understand the ramifications of these concepts have somewhat successfully been able to fend off the stupidity of the public, but it's slipping, and I fear that tort reform for medical malpractice will be the next disaster to cross this line.

Both these concepts shift the risk of loss to the individual/victim. Our economic system is concerned about efficiency, and the least cost risk bearer is obviously the large hospitals/insurance companies/etc that are able to diffuse the costs of injury over a large group of people. This is the entire concept of insurance--a big company is a more efficient bearer of risk than an individual.

The dynamics of why the risk is shifted to the injured party is obvious in both cases. In a "loser pays" system, an injured party would be basically bullied into either settling or dropping his complaint against a larger company. Let's say there is a new drug on the market, and I take this drug and get liver cancer. Moreover, 60% of the people who take this drug have gotten liver cancer, and the rate of liver cancer in the general population is, say, 5%. Now, it's common sense that the drug has caused my liver cancer, but common sense isn't always legal causation. While it's likely causation would be found, it's still basically a crap shoot. Now, this drug company would employ dozens of lawyers at $450 an hour to defend this case, because it has a possibility of major liability. These people are working around the clock, and I'm faced with the prospects of continuing my case against the drug company for my legitimate claim, or risk losing and being stuck with hundreds of thousands of dollars in legal bills from the drug company, not to mention my own legal bills, assuming my lawyer wasn't working on contingency (which he probably was). Then say the drug company comes to me and offers me $25,000 to go away. Who in their right mind wouldn't take this offer? The risk is simply too great. So by instituting a "loser pays" system, you are essentially shifting the burden of proof in civil suits from proponderance of the evidence to beyond any doubt, since no close case would ever go to trial--the risk would simply be too great. As a result, the law would never evolve or change; there is no incentive for people to push the legal envelope. Heck, not more than 75 years ago, privity was required to collect damages. If I bought a Buick, and the car was defective and it blew up, I couldn't collect from Buick because there was no privity--I bought the car from a dealership, not Buick itself. This is obviously an antiquated system, but it probably would have been MUCH slower to change, if at all, in a loser pays system because of the negative incentive to proceed to trial.

Medical malpractice tort reform is even a worse idea, but somehow it gets legs, don't ask me why. So let's say we get tort reform and damages are capped at $5m. Meanwhile, let's say I'm a 25 year old engineer that makes $50,000 a year. I'm in an automobile accident, and I'm sent to the hospital at which I am rushed into surgery. While in surgery, the doctor negligently administers the gas and I am permanently brain damaged. A very basic estimate of my lifetime earnings that I have lost as a result of the negligence of the doctor is $2m. I have to be placed on life support and have round the clock medical care; the estimated cost of medical expenses for the rest of my life is $10m. Pain and suffering is estimated at 1.5m. Throw in a few more odds and ends, and the total damages add up to $15m, say. But, thank God for tort reform, state law limits damages to $5m. So then the injured party is going to bear the responsibility of paying the additional $10m in damages? Why should the doctor not pay it? He was negligent, he caused the injury.

Of course, you could limit medical claims to actual damages and eliminate punitive damages entirely, but that is an equally short sighted idea, because then what do we do about the drunken doctors performing surgery, etc. Some things are just so shocking we've got to smack them with a little extra.

Look: all tort reform does is punish injured parties. People love to go to cocktail parties and talk about tort lawyers like they are lepers, but they never really think through the actual consequences of tort reform. In the end, the insurance companies are the least cost risk bearer, and in a marketplace, the LCRB should bear the burden of risk in order to operate at maximum efficiency.

I agree completely. After much careful consideration, I offer the following to keep the medical system (and a lot of other things in this country) operating and available:

1) Loser Pays (your clear point).

2) Massive tort reform on a unprecedented level

3) Widespread empowerment of paralegals for independent practice

4) An end to punitive damages.

5) An end to bogus class action suits.

6) Outlawing contingency fees. The dirty little secret of the lawyer industry is that contingency fees are considered grossly unethical and are illegal in almost every democracy on earth. As they were in this country until fairly recently when "activist" judges and corrupt bar associations allowed this outrageous and evil exploitation by their fellow lawyers.

7) Lawyers forbidden from running from office. They are agents of the judiciary.

8) Most important: a total disempowerment of the bar associations. Lawyer discipline by true consumer control. Like any other industry.