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I like Dick Durban. A lot. He has no trouble thinking on his feet. When he appears on MSM, he has a clearer grasp of issues than other dems; he does not just blurt out a list of talking points.

At the Health Care Carnival yesterday, he discussed the issues surrounding the concept of 'pain and suffering' in the context of the health care debate.

We need to have a discussion about damages; if for no other reason than to clear my mind because these posts give me the opportunity to cognitively work things out.

There are several types of damages. The categories are usually presented as being special compensatory damages, general damages and punitive damages.

Special damages come from concepts thousands of years old.  The tortfeasor has the duty to make his victim whole as a result of the perpetrator's negligence. The idea may be best presented in the form of a hypothetical.

Smith is coming home from his job and a garbage truck sideswipes him and his car careens into a 7-11.Smith breaks his right leg and his left arm. Now set aside issues of comparative negligence for a second.

What are his compensatory damages?

Smith is coming home from his job and a garbage truck sideswipes him and his car careens into a 7-11.

Smith breaks his right leg and his left arm. Now set aside issues of comparative negligence for a second.

What are his compensatory damages?

 

1. Medical costs.  These include present and future costs of treatment relating to his right leg and left arm. He needed some surgery in the right leg right away. Later on he suffered from other problems in his arm that led to further surgery.  So what were his total medical costs as of the date of trial? The jury decides this and then guesstimates what they will be in the future.
2. Lost Wages.  The jury figures out what Smith lost in wages due to the accident. But the jury must also figure out what his future wage loss might be.
3. Car repairs.  The jury figures out what the totaled car was worth at the time of the accident. And Smith is entitled to the amount of loss for a rental vehicle for some period of time established by the jury.

 

Now that was the manner of reimbursement hundreds of years before the advent of the automobile. We call this area of the law Torts. It comes from the French word meaning 'wrong' or 'twist'; something went awry.

To complicate all this, in most states if not all, injuries from automobile accidents are subject to no-fault laws. So the first $20,000.00 in medical costs (the amount varies from state to state) is paid for by the injured's own automobile insurance.  And there is usually a provision that lost wages up to a certain (ridiculous amount) amount like $250/wk is paid by one's own car insurance company. So any award of medical costs is reduced by the amount paid by the no-fault carrier. Things get more complicated than this by way of insurance companies claiming that medical costs were not related to treatment for the injuries received in the car accident...etc...etc...etc.

SPECIAL DAMAGES

Let us get back to the verdict. You can see, can you not, that the rich will receive more compensatory damages than a poorer person? If I made $200,000 a year, then you might expect my losses to be greater than if I made $20,000.00 a year.

And remember also that if my health carrier paid for my medical losses to date, there is a clause in the policy that monies awarded in the verdict for medical care must go to the medical insurer.

Also remember that the attorney is receiving a third of the damages awarded on a contingency basis and that if you are awarded monies for lost wages, you have to pay state and federal taxes on that award.

Remember also that a 1980 Ford Pinto is worth less than a 2010 Benz. Okay? But you can bet the 2010 Benz has been replaced in full per the owner's insurance policy and the owner's insurance company probably already 'settled' with the garbage truck's company so the jury will not even consider this loss in its deliberations.

Remember also that the rich will have their own policies that cover things like lost wages; sometimes these provisions are contained in an employment contract and the employer is paying for the policy. And that insurance policy may call for reimbursement per any jury award.

GENERAL DAMAGES

The term "General damages" usually includes the infamous concept of 'pain & suffering'.  This is almost always defined under state law. If you are sideswiped by a DOJ vehicle, you may be dealing with Federal Law and the Federal Courts.

The plaintiff claims that he now has migraine headaches. Special damages will not make him 'whole'.  He has received all his lost wages, his medical bills are paid, his rehab has been paid, and yet he is not the same because he has headaches. The jury is asked to reimburse the plaintiff for these extras. The extra losses. Every time the plaintiff opens up a car door, his arm hurts. Every time the weather changes, his leg acts up.

The Art of War in the legal arena is to get the jurors who are going to make the defendant's insurer write big checks. There are tomes written about the types of arguments that have to be made to get the biggest bang out of one's headaches.

That is the game.  And a rich person will attempt to get as much money as possible just as a poor person would.

PUNITIVE DAMAGES

Punitive damages are almost the same as criminal sanctions against corporations in the criminal courts. There is overlap in this area of the law, believe me. Criminal courts will oft times make the corporation reimburse victims of its criminal conduct besides paying a fine to the courts which should represent some reimbursement for the state's costs of prosecution. State and Federal Law will lay out how and when a victim of a tort may receive punitive damages. Usually the statute will refer to sacred words:

 

Gross negligence or intentional conduct by the defendant.

 

Sacred. Remember that. And punitive damages may well include the attorney's fees as well as the costs of expert witnesses.  Gambling is what the court system is all about. The better the expert witnesses and the more expert witnesses you present on your client's behalf; the better the chance you are going to be able to prove gross negligence or intentional conduct on the part of a defendant leading to the accident.

But the attorneys run the show. And it is their money involved in all of this. An attorney is probably not going to invest one hundred thousand dollars in experts in this garbage truck hypothetical. On the other hand, if the victim cannot grasp objects any longer with his left hand, and the garbage truck is owned by a company that has a couple of million dollars in coverage...well, looks like a goooooooood bet.

Now one would get the idea that there is some clear cut difference between negligence and gross negligence. And everybody knows what intentional conduct is. NOT!!!

I need to talk a little bit about Toyota now. There was an acceleration defect announced along with recalls.

First Toyota was saying that floor mats were the problem. People would put in their own floor mats or somehow reposition the standard floor mats so as to cause the gas pedal to stick.

Then Toyota was giving some other reason for the screw up.

Now Toyota says the entire problem deals with computer chips.

Look at what is happening here. Toyota is trying its case on MSM. First they are looking at the manufacturers of the floor mats besides setting up the victims as their own worst enemies for replacing the standard floor mats with other floor mats.

Now Toyota is looking at the computer chip manufacturer.

This entire country, nay this entire globe, is ruled by insurance companies. Toyota would have layers and layers and layers of insurers.

Corporations outsource just like governments. I have no idea what Toyota's contract looks like with the computer company it works with but I can tell you that there is insurance and bonding up the arse.

So do not just automatically believe that Toyota is out of pocket on this recall.  The issue surrounds which insurer pays what. Toyota's corporate coffers are the bank of last resort.

Okay. Now, let us say that the victim is a 22 year old female, married with one six month old baby. She was driving her 35 year old husband's new Toyota to Wallmart to pick up baby food and rattles.

At the time of the accident she was diddling with her cell phone attempting to reach her husband at work, and up ahead there had been an accident involving a garbage truck. Unbeknownst to her, traffic was stopped two blocks ahead of her. She takes her foot off the gas pedal as she puts the damn phone down and hits the brakes except, from all accounts (as they like to say on tv) the car sped up instead of slowing down.

The car ends up going straight into the rear end of a truck carrying pipes with a flag on those pipes. Mom ends up being impaled on a pipe and dies. The baby, in the baby seat, ends up on the floor somehow and suffers brain injuries.

This is the Toyota nightmare. You can see already where special and general compensatory damages will be immense. The attorney's job, following one phone call, will be TO SECURE THAT CAR IN A SAFE PLACE after working it all out with the police, and probably buying that truck with all the pipes in tact.

Here is where we get to the punies.

Let us assume that the couple in the example were aware of the recall, but simply took out the mats. They were going to deliver the car to the dealer on Tuesday and this accident happened on Monday. 

The attorneys are going to be looking at gross negligence and even intentional conduct on the part of Toyota. I mean, Toyota was lying. Was it lying then or is it lying now? Probably both.

Oh and there will be class actions against Toyota anyway. And believe it or not, some plaintiffs will be insurance companies.

MEDICAL MALPRACTICE.

The repubs always have and always will seek to put 'caps' on pain and suffering awards as well as punitive damage awards. The repubs represent the insurance industry just as Anthony Weiner pointed out so eloquently the other day. The dems get a lot of money from trial lawyers (big evil multi state billionaires, believe me) to make sure those caps are not put into place.

Now the Senator from Illinois at the President's Panel yesterday gave a hypothetical involving a woman who underwent simple surgery for removal of a wart or mole or some such. The anesthetical mask somehow caught on fire just destroying the woman's face.

First, a good attorney should be able to demonstrate that someone was guilty of gross negligence in this case. Before that case is over, there will be a thousand pages of medical records and every single manufacturer providing so much as a wipe in that operating room will be sued. What a frickin mess.

The senator, whom I respect, gives a heartfelt argument against a $250 grand limit on pain and suffering for this lady.

Now to be fair he had time for three sentences to make his argument and he certainly knows a lot more about these matters than he publishes.

WE NEED TORT REFORM in this country; for sure as it relates to health care. Numbers are thrown around concerning percentages and all that. But we need tort reform.

Maybe we separate out medical suppliers from the tort reform.

Doctors screw up. Medicine is an art not a science. I mean watch House sometime.

We cannot permit a system where some victims win the lottery and others are thrown under the bus. And experts; I mean trial lawyers on both sides need to get together and figure this out. They must be consulted because they are the only ones who realize what is really going on.The reform has got to be national.  You cannot have a situation where you lose your face in Arkansas and receive medical coverage and a new Chevrolet and a person with the same injuries receives twenty million bucks in New York.

We are too interconnected. Fuck the flat world. We have an interstitial nation. What happens in Minneapolis affects Los Angeles and vice versa.

I do not like mandatory arbitration.  I certainly would not argue for preset injuries like Workers Comp does. And Congress along with the Supreme Court have worked to take access away from the courts.

We get mad when we hear of a doctor really screwing up. Some use illegal drugs or use drugs illegally. Some drink too much. Some work too long on shifts. Some falsify their credentials. Blah blah blah.

We must separate license issues from negligence claims. When a doctor is really guilty of gross negligence, he should lose his license..for a period of time or for life.

And remember, remember, remember, the real issue here involves insurance. And if caps are put on General Damages and Punitive Damages, the insurers must drop premiums due.

This is all I got today. I will come back with at least one and probably two more chapters on this subject. My main point is that we have to take the lottery out of medical malpractice.