Topic: the land of litigation - can you believe this?

[Nacho]

Geeez......I wish I could spill coffee on myself so that I could collect a few mill. I could try to spill hot coffee on myself but then I would have to be careless and uncoordinated in order to do so. I might also have to park and make sure I put sugar and cream in it, but why do that when I can drive and talk on the cell phone at the same time with no problem ? I mean if I do somehow spill coffee on myself then it's obviously not my fault because McDonald's was careless to actually make my coffee hot for me to enjoy and they should know people don't want hot coffee because it could end up in some idiot’s lap. On another note, how come we don't see stupid lawsuits like this in countries like England? I seriously think we should follow the jurisprudence of countries like England. They don't have frivolous lawsuits and the lawyers don't make millions of dollars either. 

So-called "frivolous" lawsuits is most are completely uninformed about but that never stops them from spouting off that they "know."  Do you guys realize how hard it is to actually bring a claim?  One needs to find a plaintiffs attorney willing to take the case on contingency (meaning no money for years).  It has to survive a motion for summary judgment.  In most states, medical malpractice claims must be reviewed by a panel of physicians before the suit can be brought.

Oh my Jennifer, I just have to laugh at what you wrote here about people being uniformed about "frivolous" lawsuits. I'm assuming you never heard of the Trevor Law Group and other law groups that made millions from filing thousands of frivolous lawsuits against small businesses? This is one reason why small businesses are leaving California in droves because of this kind of fraud committed by these lawyers that know how to work the system. Here's a link about these unethical lawyers that made millions from shaking down minority based business's that didn't know enough to take matters into their own hands to defend themselves.

http://www.cfif.org/htdocs/legal_issues/legal_activities/policy_papers/california_u_c_l.htm
http://www.ndol.org/ndol_ci.cfm?kaid=106&subid=122&contentid=251323
http://www.cfif.org/htdocs/legal_issues/legal_updates/other_noteworthy_cases/trevor_law_group.html
http://www.newspress.com/election2004/prop64_092004.html

[yBeayf]

.I wish I could spill coffee on myself so that I could collect a few mill.

Hope you enjoy the daily debridements while being treated for your full-thickness scald (warning! graphic image, for example purposes only). And the plaintiff did not in fact collect a few million, which you would know if you read the facts of the case.

I seriously think we should follow the jurisprudence of countries like England.

You get three guesses as to where our legal system comes from, and the first two don't count.

[Jennifer]

Hope you enjoy the daily debridements while being treated for your full-thickness scald (warning! graphic image, for example purposes only). And the plaintiff did not in fact collect a few million, which you would know if you read the facts of the case.

Beayf, let's not concern ourselves with the facts.  It's much more fun to speculate. 

You get three guesses as to where our legal system comes from, and the first two don't count.

[cizinec]

Well, I'll weigh in as an ignoramous.

I wasn't on the jury for the McDonalds thing so I can't say what the facts were. I'm no lawyer, but I will say that it is dang dumb to pop open a sealed lid of hot liquid in a squishy cup between your legs. Lots of folks do it, I suppose, but then lots of folks watch "Lost" and "Desperate Housewives" so that isn't saying much. The burns were bad, but that's why you've got to be dang dumb to do it. Of course McD's was dang dumb because the *knew* people were being that stupid and they didn't put a "HEY! STUPID!" warning on the cup. They're an American company and they knew they could get sued.

On top of that, McDonald's coffee is bloody aweful. Maybe someone in the jury was a serious coffee snob and was offended that, after the coffee is brewed, it SITS on a heating element getting nasty before it is served.

Concerning doctors and the cost of insurance . . .

My wife had to have a C-section for our first (placenta previa - no choice unless she wanted to bleed to death). After that she wanted to have natural childbirth. Every doctor on the planet wanted to do a VBAC, but when you asked how many they had actually done . . . So, for our third we had a specialist who, in part, specialized in VBACs. Before she could deliver his malpractice insurance company told him no VBACs even though he was a specialist and had done it many times. Why? Doctors who were not qualified to perform the procedure were doing it in droves because of increased demand and income.

So, who's at fault? The doctors for performing a procedure without knowing what they were doing, patients for not ensuring their doctors knew how to do it and the insurance companies for not realizing that there is a difference between a specialist who has this as a primary specialty and a general OB-GYN who doesn't. Please notice that the lawyers aren't among the guilty. They are the poor slobs who have to sort through the crud after it all happens and meet when it's all over and say to each other, "Dang, people are stupid."

Concerning tort reform . . .

It’s always a great idea until you’re child and your future is permanently damaged or lying dead before you. What monetary value would you put on *your* child? Mine are priceless. A gal I worked with had to sit on a jury concerning a doctor who decided it would be cool to use a laser to do circumcisions. He mangled the baby boy so badly the baby had to have a sex change operation. Now, would you, GiC or others, be willing to give up your manhood for a lousy $250k? How about $250 million? If you wouldn’t do it for yourself you’d probably not do it for your kids.

[BrotherAidan]

All I can say is I'm not putting a styrofoam cup with a plastic lid between my legs, hot or cold, inthe car!
The seat incline is toward the rear of the car. Now where is that spill, hot or cold, going? You betcha - you're gonna look like you peed yourself, even if you don't get burned or chilled. Huh-ah, ain't doin' it. Got cup holders for that!

[Keble]

Obviously the judge and jury didn't think so, and ultimately their opinion on the case is the only one that matters.

No, not ultimately-- only immediately.

The issue of jury competence to offer opinions in these cases is a very real issue, and one that I have direct experience of-- as a juror. Many years back I was a juror on a personal injury case in the county courts. The story was that a young guy driving a company truck had rear-ended a woman at a traffic light, and she was suing for damages under the claim that her TMJ syndrome was brought on by the accident.

Now at the time, TMJ syndrome was cloaked in a certain obscurity-- as far as I know it still is. The case circled around the scientific issue of whether the accident could have caused the medical problem. This led to dueling medical expert testimony, which none of us was competent to judge scientifically in the courtroom, and which of course we were not allowed to pursue according to the actual standards of scientific inquiry. There was also the mostly unpursued issue that the woman had had orthodontic work done, which is a known contributor to TMJ syndrome. So how did the case get decided? Well, largely on the basis of personal dislike of the defendant's witness-- he was an arrogant ass, to be sure. The only way this didn't happen entirely was that a few of us objected; if by chance I and the lawyer weren't there, they probably would have given the plaintiff almost everything.

On beyond that, at the very beginning of the case, an objection from the defendant's lawyer was sustained. What was it over? Well, the lawyer on the panel knew: the plaintiff's attorney was going to mention the fact that the kid who was the nominal defendant wouldn't be paying damages-- his employer's insurance would. The obvious conclusion is that everyone thought that this would bias us in the direction of a larger award. Were we? Good question-- but we were surely freed from any worries about whether the kid could actually pay the award.

I am totally uninterested in legal precedent as a source of authority in this discussion. If precedent is the primary cause of the "problem", then perhaps the evolution of precedent has been defective.

[Jennifer]

Here's a link to some interesting research on the malpractice crisis.   The abstracts are free.  Medical Liability: Beyond Caps. 

Caps seem to be effective in reducing malpractice premiums.  You can see the GAO report for support on this.  However, there is evidence that caps penalize the elderly and children. 

Keble, dueling medical testimony is a huge problem.  I wrote an article that will be published next year specifically addressing the problem of improper medical expert testimony.  My argument is that the medical profession should 'police' this testimony. 

[GiC]

Keble,

I agree that jury competence is a serious problem with our legal system, I believe a tribunal system would be preferable. Somewhere between three and nine (depending on the type of trial, the seriouness of the charges, wishes of the defendant, et cetera) qualified Judges who, like on the Supreme Court, interact with both parties in search of the Truth. Some of these tribunal Judges could even have expertise and college degrees in certain fields such as medicine and science, allowing them to objectively evaluate evidence presented from these fields and make a judgement as to the value of the evidence, based on real knowledge and not the ability of the doctor or lawyer to argue their point. Though, of course, this would upset our current legal system that at times is overdependent on rhetorical skills of lawyers and the stupidity of juries.

[yBeayf]

I am totally uninterested in legal precedent as a source of authority in this discussion. If precedent is the primary cause of the "problem", then perhaps the evolution of precedent has been defective.

That may very well be, but there comes a point where the discussion stops being about our legal system and starts being about hypothetical ideal legal systems. As greekischristian suggested in the post immediately above mine, it may be better to replace juries with tribunals, and it may be better to dump the common law in favor of civil codes -- but I highly doubt that the US is going to switch to a continental legal system anytime in the next century, so the whole discussion is academic.

[GiC]

Beayf,

But alas, most our discussions on this board are academic in nature anyway.

[yBeayf]

I should also add that I fully believe in the superiority of common law over civil law. I believe it matches up much better with the Othodox ethos. With the common law, unwritten tradition is a source of authority, and stands apart from the decisions of any particular judge; contrast this with the civil law, where authority is vested entirely in the legislature, and custom has no place, and also the similarity with the Roman Catholics, where changes to traditional practice are made simply at the whim of the Curia. With the common law, the judges are the guardians and maintainers of the law; with the civil law, the legislature is the creator of the law.

There are other similarities as well, such as the role of the common people in cooperating with judges in applying the law, and the resistance to formally defining legal principles until they have been disputed.

[GiC]

Beayf,

However, the legal system of the Church was, like civil law, based on Roman law. The reason that the application of the Canons today may seem more like a common law system as opposed to traditional Roman system which gave it birth is that we no longer have the Councils to keep the Canons current, thus their applications are often viewed as outdated and hence not strictly applied. However, the principle behind our Canonical system is that the Canons be based on Eternal Truths. However, the essence of the Roman legal influence survives in our canons, though it is difficult to fully apply it without a modern codification, but one important element of a 'civil law' system that is applied in our Canonical Tradition (though we probably actually adhear to it in practice for firmly than any other 'civil law' system) is that past precedents (especially instances of the use of +++¦+¦+++++++++¦+¦) can not be used to justify a canonical decision.

One example of this is in the case of Marriage between the Orthodox and Heterodox, there have been attempts to argue that it is acceptable in America based on past precedents, we have been doing it for decades, but this argument has been rejected in synod of the Oecumenical Throne and it was made clear that each time such a marriage is allowed it is a decision that is neither justified by past occurrences nor does it jusitfy future occurrences of the breach of the canon (Trullo 72), but rather it is only a one-time occurrence for the pastoral needs of that specific situation, in principle a decision that should be independently evaluated for each such marraige request, and a new ruling given by the bishop independent of all past rulings along these lines. The decisions of the Councils are regarded as absolute in Canonical matters, and can only be overturned by a Council of Equal or Greater authority, and no lesser authority can establish a common practice to the contrary (it doesn't matter if we've been doing it for ten years or a thousand years). Though we do accept interpretations of the Canons, these interpretations should be based on the decrees, actions, and thinking of the council itself and should not bring into account precedents and custom. It is for this reason that most the bishops in the world are quite concerned with our casual acceptance of Marriage between the Orthodox and Heterodox, and why it has been placed on the list of issues for the Great and Holy Synod.

[Keble]

That may very well be, but there comes a point where the discussion stops being about our legal system and starts being about hypothetical ideal legal systems.

Well, one of the properties of our legal system is that it is ostensibly subject to revision (and that indeed such revision takes place). And after all, tort reform does imply such revision. Right now a very large part of the problem is the way the legal profession asserts that the political authority of the courts above any other system of judgement implies at least the irrelevancy those other systems. This is patent nonsense; since current tort practices put the courts in the position of issuing scientific findings, the fact that they do so unscientifically is sufficient proof that the decisions thus made are unsound.

See, when I look at something like the McDonald's case, I have no reason to trust the expert testimony or the jury's evaluation of it. Courts may be competent to determine the history of a situation, or at least they are no less competent than anyone else. But as far as coffee temperature is concerned, that is a matter for the kind of empirical research that is the province of science, and actual research is intrisically better than expert testimony-- not for any systematic reason, but simply because the reality of actual coffee is better than someone talking about coffee.

What I suspect is really happening is that the problem of the courts having to make scientific judgements is a pretty recent problem. I also have to suspect that part of the malpractice problem is that (a) these days the victims of mistakes are more likely to survive, and (b) the situation w.r.t. lifetime care provisions is intrinsically inflationary because the cost of paying for this reflects the increase of the insurance which is actually paying for these costs.It's also telling that one of the worst areas is obstetrics; it's difficult to believe that the level of incompetency has risen that much.

Whether or not tort reform is being driven by corporate irresponsibility (and obviously it is to some extent-- they have an interest in it, after all) the issue is also being helped by the lack of any systematic assurance that it is making good decisions, and that it is indeed making decisions through means that, outside the courtroom, would be considered intrinsically bad. And then there's that phrase "corporate responsibility". Consider the injury case I described. The actual responsibility of the kid was basically a footnote; the court wasn't going to impose a penalty on him, and indeed the whole case centered around the responsibility of the mechanics of the accident in causing the medical problem. This last point is something which I think could be ameliorated within the context of our current legal system.

Jennifer, I'll be interested in seeing your paper.

[Jennifer]

Keble, actually courts have dealing with scientific evidence for a long time.  This isn't a new things.  Courts have developed several 'tests' for expert scientific testimony.  In the federal courts, it's the Daubert test which tries to determine if the expert's opinion is both reliable and reasonable by looking at the expert's methodology.  The older test, Frye, still the law in some jurisidctions, looks at whether the scientific theory is accepted. 

Your theories on malpractice are quite astute.  In fact, I read somewhere that the malpractice crisis is actually means that American medicine has succeeded.  That's an interesting perspective but has some merit, IMHO. 

I'll be happy to show my article to people once it gets published.  I'm sure it will bore all of you to tears.   It's getting published in a 2nd tier law review in January 2006.  I'm really excited about it.  I never thought I'd be a published author. 

[yBeayf]

One example of this is in the case of Marriage between the Orthodox and Heterodox, there have been attempts to argue that it is acceptable in America based on past precedents, we have been doing it for decades, but this argument has been rejected in synod of the Oecumenical Throne

One point to make: while I am not personally in favor of marriage between Orthodox and heterodox, the fact that the EPatriarchial synod doesn't like it doesn't matter much to me; I'm not under the EP's omophor.

WRT interpretation of the canons, whether you think it should happen or not, tradition and precedent does in fact play a large role in how economia is applied. Councils do not make tradition, they codify it -- there is a difference.

[Keble]

Keble, actually courts have dealing with scientific evidence for a long time.  This isn't a new things.  Courts have developed several 'tests' for expert scientific testimony.  In the federal courts, it's the Daubert test which tries to determine if the expert's opinion is both reliable and reasonable by looking at the expert's methodology.  The older test, Frye, still the law in some jurisidctions, looks at whether the scientific theory is accepted.

I don't have time for much of a response now, but intial review shows that Daubert only dates to 1993, and I've seen a reference which indicates that its intent wasn't fully spelled out for another three years. Be that as it may, the differences between Frye and Daubert seem to be to parallel some of the complaints I have about laying scientific decision making upon the jury. I'll try to spell it out when I get back from Baltimore.

[Jennifer]

Daubert is recent but Frye dates back to the 1920's. 

[GiC]

One point to make: while I am not personally in favor of marriage between Orthodox and heterodox, the fact that the EPatriarchial synod doesn't like it doesn't matter much to me; I'm not under the EP's omophor.

The Patriarchal Synod of the Great Church of Christ is not the only body to express these concerns, my understanding is that they have also been expressed by Jerusalem, Moscow, Serbia as well as others (I'm not certain if Antioch has addressed the issue or not). The final ruling, however, will come at the next Great and Holy Synod.

WRT interpretation of the canons, whether you think it should happen or not, tradition and precedent does in fact play a large role in how economia is applied. Councils do not make tradition, they codify it -- there is a difference.

Some bishops may look to precedent to make their decisions, but that is an abuse of the Canonical system and in doing so the offending bishop is acting uncanonically; thus opening himself up to potential censure or worse from his synod. The problem with elevating precedent to the level of the Canons themselves is that you are making an ecclesiological statement that individual Bishops have the right to overturn Oecumenical Synods by simply ignoring them, and this is not the case. Moreover, this abuse of our Canonical Tradition you are refering to is generally not a significant problem outside the United States (the biggest problem being mixed marriages, which everyone admits is uncanonical, but no one has a solution), perhaps it can, in large part, be blamed on the negative influence that our secular state has had on the Church, which is why I tend to think higher of the theological posistions that have been put forward by Synods in the old world, like the Patriarchal Synod of Constantinople.