Law Suits and Popular Ignorance

[woodyboyd]

Originally Posted by Mazomaniac

Ya know Woody, as much as I try to be compassionate toward others

Since when are you compassionate? When I was one of the first people who reported being groped by the TSA, you didn't show compassionate. You implied I was full of it.

Originally Posted by Mazomaniac

You're posting a bitch rant about how if you get sued your insurance carrier will roll over and pay the bill for you.

When waitresses, dishwashers, and farm workers start bitching to me about the threat they face from frivolous law suits I'll start to perk up my ears.

My God, Mazo, you exhibit such typical lawyer arrogance. My insurance carrier is partially funded by the state. That means the people paying the tab are waitresses, dishwashers, and farm workers.

And those same people could probably get health care insurance or cheaper and better insurance if $45 billion a year wasn't being pissed away on defensive medicine.

Originally Posted by Mazomaniac

If that's the worst situation an MD get himself into then sign my sorry ass up!

Well be my guest and sign up. The labor is going to be needed. When government and insurers started cutting doctor's fees, there was bitching by doctors (some of it needlessly). However, lately, when Congress was dicking around with cutting Medicare fees, it was front page news on USA Today because patients were scared doctors would stop taking Medicare. Even AARP supported not cutting doctor's fees.

In Texas, there is such a shortage of doctors taking Medicare and Medicaid, the state has given a fast track to doctors who apply for licensure and are willing to take Medicare and Medicaid.

Only a lawyer like you would come up with the notion that I am bitching about my condition. If I lie, then I will take it like a man. OTOH, if I am confronted with the condition where "they can lie, and you can't", and their lies are costing society hundreds of thousands of dollars, why should I or anyone else take it "like a man"?

[Mazomaniac]

Originally Posted by woodyboyd

My insurance carrier is partially funded by the state. That means the people paying the tab are waitresses, dishwashers, and farm workers.

OK, I'll change my comment to say that you're bitching about how lots of other people are paying the bill for you.

Does that help ease the pain of having to cut the grass on your 2 acre lot or chlorinate the swimming pool every week?

Lawyers pay for E&O insurance too. It's just that we accept the fact that it's part of doing business and lump it in with the heat and light bills. We don't bitch about it the way doctors do.

Cheers,
Mazo.

[charlestudor2005]

Until the 1960’s, the law in this area had been relatively well established. For almost a hundred years prior to the Civil Rights Act, the seminal case in this area was Strauder v. West Virginia.19 There, a black man was tried and convicted of murder in 1874. Under West Virginia law at the time, white males over the age of 21 were the only citizens eligible for jury service.20 In its opinion, the Court stated that ending the oppression of the Black race was the purpose of the Fourteenth Amendment.21 Thus, the Court held that the West Virginia statute that excluded Blacks from serving on juries violated the Equal Protection Clause.22 The Court further noted that this conclusion did not guarantee that any defendant had a right to a jury comprised (in whole or in part) of persons of similar color, but instead held merely that a state law could not, consistent with the Constitution, exclude all persons of a particular race or color from jury service.23 It is also important to note that the Court’s decision was based on its concern for the equal protection rights of the defendant, rather than for the rights of prospective jurors excluded from jury service.24

For ninety years, Strauder remained the guiding force behind the selection of grand juries and venire panels. In Swain v. Alabama,25 however, the Court first considered the racially motivated use of peremptory challenges in selecting the juries themselves, rather than in assembly of the venire panel.26 In Swain, the defendant was a black man accused of raping a white woman.27 During voir dire, the prosecutor used peremptory challenges to exclude six of the eight black men in the venire.28 Despite this overt act of discrimination, the Court held that the defendant had failed to meet the burden of proving that black jurors had been deliberately excluded.29 The Court held that peremptory challenges were, by their very nature, discretionary.30 Subjecting litigants to Equal Protection Clause scrutiny would weaken the value of discretionary challenges and subject them to “scrutiny for reasonableness and sincerity.”31

Additionally, the Swain Court held that discrimination could only be proven by showing that the prosecutor had consistently excluded black jurors in other cases, regardless of the circumstances, crime, or racial background of the parties.32 Thus, under Swain, a defendant could not rely merely on the peremptory challenges exercised in his own case to show discrimination; instead, he had to show a pattern of discrimination over a series of cases. This seemingly oppressive burden for proving discrimination in jury selection remained the standard for over twenty years, despite the fact that records concerning peremptory strikes were not even kept by most courts.33

The Court’s decision in Batson v. Kentucky34 relaxed Swain’s “crippling burden of proof.”35 The defendant in Batson, a black man, was convicted by an all-white jury of burglary and receipt of stolen goods.36 After voir dire, the prosecutor exercised his peremptory challenges to exclude all of the blacks in the venire.37 In considering the defense’s objection to these strikes, the trial court held that the parties were entitled to use their peremptory strikes in any manner they chose.38 As in Strauder and Swain, the Court analyzed the equal protection issue in terms of the rights of the defendant rather than the prospective jurors.39 Unlike Swain, however, the Batson Court held that a defendant need only show that he is a “member of a cognizable group” to show discrimination, rather than show the pattern of discrimination required under Swain.40 Thus, a defendant could make a prima facie showing of purposeful racial discrimination solely by using the facts of his own case, rather than having to show a pattern of discriminatory acts.41

Equally important is Batson’s articulation of a three-step, burden shifting mechanism for evaluating claims of discrimination against black jurors. First, the Court established that trial judges can use all relevant circumstances to decide if a prosecutor’s use of peremptory challenges forms a prima facie case of discrimination.42 Once that showing has been made, the burden shifts back to the State to provide a neutral explanation for the challenges.43 The court must then evaluate the explanation to determine if there has been purposeful discrimination.44 Note that this burden shifting approach does not preclude the use of peremptory challenges that seem racially motivated, so long as the challenging party can show a race neutral reasoning for the challenge that satisfies the court.

Since 1986, the Supreme Court has issued a series of decisions that have broadened the scope of Batson v. Kentucky. In Powers v. Ohio,45 the Court held that a defendant could object to racially motivated peremptory challenges even when the defendant and the challenged juror were of different races.46 Additionally, Powers is significant in that the Court, for the first time, considered the Equal Protection rights of the excluded juror (i.e., every citizen’s right to be eligible for jury service) rather than the rights of the defendant.47

In Edmonson v. Leesville Concrete Co.,48 the Court considered whether Batson should apply to civil actions as well as criminal cases.49 In this case, a black construction worker brought a negligence action for injuries in a job-site accident. Counsel for Leesville Concrete exercised two of their three peremptory strikes to exclude blacks from the jury.50 The Supreme Court expanded the holding in Batson to include civil cases, noting that racial discrimination in a civil case “harms the excluded juror no less than discrimination in a criminal trial.”51

[Footnotes removed.]

This excerpt shows that jury panels should be drawn from as large a spectrum of the eligible population available without slighting any protected class. Now, I don't control the jury laws from all jurisdictions, but I think if the jurisdictions that limit their lists to those that are inherently discriminatory in nature are running a big risk.

@PJ--it's fine with me if you do whatever it takes in FL to prevent yourself from being called for jury duty. It will enhance some poor soul's chance of receiving justice there.

[Vercengetorix]

Obviously you had a terrible experience. A perfect storm of a frivolous lawsuit, a unscrupulous plaintiffs attorney, a lying/dishonest expert on the other side, an attorney defending you who was grossly incompetent and a judge who refused to follow the law.
Who'd a thunk it?! In all seriousness, if that did happened you are a victim.
I'm sorry your experience with the system was so bad. I do it for a living, have handle a lot of cases in very "bad" jurisdictions and have never seen anything like that. But, statistics say it could happened.
As I mentioned, there is already modified loser pays for med mal in Texas. Apparently your case didn't qualify.
To answer your question, yes, some plaintiffs attorneys with a lot of money will pursue cases which are more marginal for a chance at the home run. Most of them end up writing big checks for their risk but they can absorb the cost. I wouldn't disagree with some method to restrict that. I don't see that very much and I deal with this stuff.
As for unscrupulous experts, you can report them to the AMA or their State Board of Medical examiners, that isn't privileged, and your case would be heard and decided by medical professional, not attorneys. If they truly are doing what your suggest, your profession can weed them out. Physicians, as you know, have their own ethical standards that are enforced by their medical associations.
If you have liability insurance what are you paying out of your pocket? Nevermind.

[Vercengetorix]

My learned friend, most lawyers have a healthy scepticism of experts. I share it.
Your points have merit.
I am a huge believer in the jury system. It works well the vast majority of the time but sometimes it produces odd results. Why? Very simple, it is based upon human decision making. Any endeavor dependent on human skill or decision making is ultimately flawed to some extent. That goes for law, brain surgery, engineering, teaching, dog grooming and everything in-between.
Someone show me a perfect system for resolving disputes, anywhere in the world?

Originally Posted by Chevalier

I think, rather than using a loaded term "not frivolous" along with "by definition," it would be better to simply say that lawmakers have agreed that the complaint meets the requirements for going forward. I think it would be a stretch even to say that lawmakers have agree that it meets a minimum threshold of merit -- it's more likely that they've concluded that the requirements are a relatively easy to apply test and there is some connection, although short of absolute correlation, between "meets the requirements" and "not frivolous." It's a way of filtering out some complaints, but can't effectively do that for all complaints that should not have been filed in the first place. No bright-line rule can.

Of course, you apparently have expertise in the particular area of med-mal and I don't. My skepticism and cynicism about expert reports, by either side not just a plaintiff, arises primarily by analogy to my area of expertise. Because in that area, going back 5 - 15 years, there was a virtual epidemic of flawed, results-oriented, specious opining by experts, including at a large number of prominent and extremely well-regarded law firms and CPA firms. Looking back on it now, it's almost incomprehensible. Why did they do it? Competitive pressures and wanting to earn a (good) living ("if we don't give the client the opinion he wants, he'll just go elsewhere").

Maybe those who are qualified to give such reports in med-mal are more ethical. You're obviously in a better position to evaluate that than I am. But I am skeptical/cynical about expert reports in general. Or perhaps it's just that I am skeptical/cynical about human nature in general.

[woodyboyd]

Originally Posted by Mazomaniac

OK, I'll change my comment to say that you're bitching about how lots of other people are paying the bill for you.

My God, you lawyers are arrogant pukes. They aren't paying me anything. All the money is going to lawyers like you. You are defending the blue collar worker while at the same time you lawyers are robbing them blind.

Originally Posted by Mazomaniac

Does that help ease the pain of having to cut the grass on your 2 acre lot or chlorinate the swimming pool every week?

I worked for what I made and for the record, my wealth was not accumulated via medicine.

Originally Posted by Mazomaniac

We don't bitch about it the way doctors do.

That is because you guys never get sued.

[charlestudor2005]

@woody

As many (not just me) in this thread have pointed out, your views of civil litigation are just plain wrong. You seem to be educated. Do yourself a favor and educate yourself here, too. Especially before posting your ignorance on a public board.

[OneHotMale]

Originally Posted by charlestudor2005

@woody

As many (not just me) in this thread have pointed out, your views of civil litigation are just plain wrong. You seem to be educated. Do yourself a favor and educate yourself here, too. Especially before posting your ignorance on a public board.

LMAO!!!! You may wish to heed some of your own advice Charles. The fact that you were totally clueless as to how Texas picks a jury pool even after PJ pointed you in the correct direction, you still tried to play down his source which is absolutely how they pick prospective jurors.

[woodyboyd]

Originally Posted by Vercengetorix

Obviously you had a terrible experience. A perfect storm

This is more deception. My experience was typical. 85% of doctors who were sued said that they felt persecuted and felt they did nothing wrong.

Originally Posted by Vercengetorix

As for unscrupulous experts, you can report them to the AMA or their State Board of Medical examiners, that isn't privileged, and your case would be heard and decided by medical professional, not attorneys. If they truly are doing what your suggest, your profession can weed them out. Physicians, as you know, have their own ethical standards that are enforced by their medical associations.

I appreciate that comment, however, the medical board used to be led by an attorney, and the investigators are nurses not doctors. The medical board is not the pristine place you suggest or were led to believe it is. In fact, there was an 11 hour hearing on the board's abuses held by the legislature's appropriations committee. A board reform bill was passed by a vote of 11 to 1 in the committee only to see the bill held up by the Dems in the legislature. Still, a complaint to the medical board will be in order.

The AMA is worthless, a lobbying organization that I think only 5% of doctors belong to anymore.

I am probably going to get this medical expert through peer pressure, but I think you can see my frustration about how to handle someone who lied about me and admitted doing so under oath.

Originally Posted by Vercengetorix

If you have liability insurance what are you paying out of your pocket? Nevermind.

The fact that all you lawyers have to make this personal shows how fucked up your position truly is. Fine, if you want to know more about me, I will be happy to tell you. There came a point in my life that having basic civil rights was more important to me than the income from medicine, and I wasn't alone. All the best and most financial successful doctors I knew quit. We all said the same thing: we could breathe after quitting.

What civil rights? Oh, you know crazy things like due process, being innocent until proven guilty, the right to sue people who libel/slander you, being judged by your peers, not having a government suck $20,000 out of your bank account claiming that you overbilled them without any due process.

In fact, one of the reasons I quit was talking to another doctor who did so and when I asked him if he missed medicine, his response was "not for a second."

In this most recent deposition I expressed my frustration. I said, "I got tired of complaining. It never did any good. I quit and was content to just watch the bodies pile up." All around the deposition table I saw the lawyers' eyes gray with guilt.

What has happened in the last five years has been insurers have cut expenses so badly to the bone, quality has suffered, and doctors were left holding the bag. Insurers can't be sued, so doctors were. Doctors got so tired of being screwed by insurers that they changed how they practiced. Instead of going fee for service, they changed to getting paid salaries.

Of course, this change is being hailed as positive but like anything else, it has its issues.

So Charles Tudor comes along and stupidly says doctors should be sued for malpractice for colon perforation, a known risk for colonoscopy. So what does the salaried doctor do when asked to perform colonoscopy. Well, he gets paid whether he does a procedure or not, so he now has incentive to talk patients out of getting it. Who loses? Society and the patients because it is far easier to catch and cure colon cancer earlier rather than later. The costs to society go up 100 fold.

And even if he does get sued, who cares? He sits in a court room instead of working. His personal wealth is not threatened because he is a salaried employee. And for all the arguing about how incompetent he is, unless he is a true butcher, the rate of colon perforations will not change. If the best doctors there are do enough of any procedure, they too will have bad outcomes.

The other part of the change is that doctors now have incentive to see fewer patients. So in the last five years, there has been a sudden and profound shortage with regards to medical care and quality. If you get paid the same no matter how you perform, why provide better care? The current attitude with care is that it not be the best but it be good enough. Pursuing the best care is too time consuming and filled with pressure. If you do what is best for your patient, that often means knocking some heads in. Why bother with that now? And if you get paid the same whether you see 10 or 40 patients a day, why not see ten? Even the rise in midlevel providers like PAs and NPs has not stemmed the tide.

The good thing about you attorneys is like insurance companies you have wound up hanging yourself with your own rope. Insurance companies treated their customers so fucking badly that the public did without. Their entire model was so broken that they had to get the government to bail them out by mandating people buy insurance. Health insurance was so costly and so worthless that a huge portion of well people were opting out.

Texas passed a law that limited damages for pain and suffering to $250,000. Despite all the pleas by plaintiff's attorneys that this would lead to huge suffering and a drop off in quality, nothing happened. Quality of care didn't go down at all. Malpractice lawyers lost what little credibility they had. Instead of being shown as defenders of the public, these lawyers were shown to be what they truly were, a bunch of leaches.

And juries have caught on to this too. A lawyer has told me that juries are now applying criminal standards to malpractice cases. That means unless you can prove a doctor was malicious in his care, they aren't going to find against the doctor. So Charles, if you want to take a colon perforation case to trial, good luck. Chances are you are going to lose.

And finally to put a bow on this, the video was about a lawyer complaining about public expectations with regards to lawsuits. Well, whose fault is that? I have had so many lawyers on this thread defend the system and bitch at me for being ignorant with regards to the law.

Bottom line is that you guys don't give a rat's ass about quality of care. You just care about money, and you don't care if you take it from a doctor who did nothing wrong. You cloak this immorality by saying you acted "in a client's best interest".

People know that politicians are liars, and that most politicians are lawyers. The public has gotten so sick of your lies that they have been making up their own set of rules. The real issue with me is if you guys have the capacity to clean up your own mess. If you haven't noticed, the only people defending the current system are lawyers, and that more than anything else is fucking pathetic. If people don't understand how the legal system works, that is on you. You people have been lying about how the system really works for decades for your own personal benefit. You shouldn't expect any sympathy from me or from anyone else given your behavior.

[Ansley]

Originally Posted by OneHotMale

LMAO!!!! You may wish to heed some of your own advice Charles. The fact that you were totally clueless as to how Texas picks a jury pool even after PJ pointed you in the correct direction, you still tried to play down his source which is absolutely how they pick prospective jurors.

Well hot damn! Look who's back in town. I hope you are well.

[atlcomedy]

Originally Posted by OneHotMale

LMAO!!!! You may wish to heed some of your own advice Charles. The fact that you were totally clueless as to how Texas picks a jury pool even after PJ pointed you in the correct direction, you still tried to play down his source which is absolutely how they pick prospective jurors.

Chuckles is is a class all by himself

[woodyboyd]

Originally Posted by I B Hankering

Where I live, prospective jurors are treated miserably—like cattle. There's not enough parking, not enough chairs for seating (other options include, standing, musical chairs or sitting on the floor—to be tread upon by the "power-walkers" who use this wasted moment in their life to exercise) and inadequate air conditioning for the mass of humanity they pack into the rooms. Plus, the stipend usually won’t cover the cost of a lunch meal at a downtown restaurant and the cost of gas for the commute. Oh, and Uncle Sam also wants his part of the stipend.

That is pretty typical, IB. In one of my cases, a pool of potential jurors was sequestered. The dog and pony show went on, and a set of jurors was picked. Three of the jurors started bitching and said they couldn't serve. The judge got frustrated and ordered everyone back in the morning.

So the jurors show up the next day. The plaintiff's attorney produces a letter. Their expert, who is a doctor in Arkansas, writes a letter proclaiming he is too busy to show up. The plaintiff attorney asks for and gets a postponement. The real reason, just like with this case, is that the expert has lied and doesn't want to go on the stand. But anyway, the judge then dismisses the jurors. They have had their lives interrupted and time wasted for a day and a half for nothing.

Now here is the kicker. My lawyer filed a perfectly good motion to dismiss and it was denied by the judge. The plaintiff lived in a different count and the alleged malpractice act occurred in a different county. Point is that this jury's verdict would have nothing to do with regards to medical care in THEIR community.

So who benefitted from this trial? The plaintiff's attorney and his client if he won, my attorney, and the judge if he got a financial donation from these attorneys. Who lost? Me and the public. I had to waste my time on a bogus case. And the public who had to waste their time because a plaintiff's lawyer didn't have his ducks in a row. Bottom line is that this case is typical. The legal system is set up for the benefit of the lawyers and judges not the public.

[OneHotMale]

Originally Posted by Ansley

Well hot damn! Look who's back in town. I hope you are well.

I am doing fine Ansley. Just some major changes in my life that has kept me extremely busy but all is well. So how are you pretty lady?


And yes atl Charles does seem to be in a league of his own or is it a league of his own in his own mind?

[Doove]

Originally Posted by woodyboyd

Now here is the kicker. My lawyer filed a perfectly good motion to dismiss and it was denied by the judge.

Show me one motion that's not deemed "perfectly good" by the party to whom it's filed on behalf of. That's the problem, all these examples are being thrown onto this board and in each case, we're getting only one side of the story.

Hell, if i only listened to OJ and his lawyers, i'd be 100% convinced he was innocent. The tales of woe here, and how they show that lawyers are the scourge of the earth don't impress me.

[Mazomaniac]

Originally Posted by woodyboyd

85% of doctors who were sued said that they felt persecuted and felt they did nothing wrong.

Wow, that's funny.

85% of crack addicts say the same thing.

Further proof that something must be wrong with the legal system.

Cheers,
Mazo.