So there's been a bunch of trial lawyer bashing going on when talking about John Edwards and a bunch of mentions of "tort reform" when discussing universal health care, but it got me to thinking....

Beyond the buzzword "tort reform", what do you want?

Can't be to let bad doctors get away with murder (or dismemberment or poisoning or whatever), because that wouldn't fly with anyone, including doctors.

Is it to put limits on the awards? Put a review board in between you and a lawsuit? Create a special class of "medical judges" who hear all medical-related liability cases?

What does "tort reform" mean to you? How would you implement a "fair" system that ensures that doctors are still liable for their mistakes, but not for the "stuff happens" issues that come up in health care?

Please: no lawyer bashing. This isn't about them, but about the entire system that exists and what could be better for everyone involved.

Your suggestion of a review board sounds good. I tend to disagree with the idea of firm limits on the amounts which can be awarded in these kinds of lawsuits. There is no doubt that insanely huge amounts have been awarded in some cases, but absolute limits is too harsh a solution to the problem.

I don't see a good reason why these sorts of lawsuits, which may often involve highly technical questions, have to be decided by a jury of laypersons. Of course, this may cause a huge problem with this Amendment to the Constitution:



If I am reading this right, if I sue someone for any amount above twenty bucks, I have the right to demand a jury trial. Can any legal experts tell me if I am right about this?

What does "tort reform" mean to you? How would you implement a "fair" system that ensures that doctors are still liable for their mistakes, but not for the "stuff happens" issues that come up in health care?

Reasonable limits on Awards. How much is a lost fingernail really worth in a case where a hang nail procedure went wrong? What about a lost tooth? Scaring, etc?

Limits on pain and suffering awards.

A good market approach might be what New Jersey does with Auto Insurance. If you select the option to waive your right to sue for pain and suffering you get a reduced Insurance premium.

What about holding people accountable for what they do? Doctor repairs a knee and says do these exercises, take these pills, change the dressing regularly, and stay off it as much as possible for the first two weeks.

Then you go out, play baseball, slide into third and get the dressing all dirty. You don't change it and you don't take your pills. You end up with an infection that could cost you your leg. Whos fault is this? It would seem to be common sense but a lawyer would take this case and though they might loose, the doctors insurance company would still have to pay to defend themselves.

Number one tort reform idea:
Make the loosing side in a law suit pay the legal fees of the winner.
That should dramatically reduce the ridiculous cases out there.

Number two (good from criminal cases as well):

Start actually charging people with filing false reports, perjury and the like. Even when it is obvious that someone lied to the police and the court they almost never seek prosecution.

There are many approaches to resolve the out of control law suits. I even saw a website (can't find it now) that advocated a Lawyer hunting season

I kind of agree with Overlandsailor on this (a novel experience for both of us, ).

The biggest barrier to sensible tort proceedings is the whole concept of "no win no fee". There is no risk to a plaintiff of making a false or mischevious tort claim in court, because if they win, they win, and if they lose, their lawyers will cross-subsidise their costs from other won cases.

Some kind of system where you still don't have to pay up front (allowing access to justice to those without riches) but you're left with a big bill if you lose would likely be a disincentive to balloon-flying or mischevious suits.

Nothing could get rid of them altogether, of course, but I think such moves would help.

On the first idea: so you're advocating that the plaintiff, sometimes a poor person, should have to risk bankruptcy in order to seek relief from a bad doctor? If the doctor loses, it's his insurance that would end up paying the legal fees; who pays if the doctor wins? Would we as simple people have to get "legal insurance" that would allow us to sue and how does that jibe with the Constitution?

Egregious cases of frivolous lawsuits DO sometimes incur a judge's wrath and they will sometimes nail the plaintiff for fees in those cases. Maybe we just need to expand a judge's discression for that?

Remember: whatever "reform" you propose has to work in the case where the doctor is a major screw-up, but the judge or jury just doesn't agree or certain evidence isn't allowed that would help the plaintiff's case.

As for your second idea, tell it to Martha Stewart!

As for Victoria's idea: there's definitely something comforting to both sides about having an independent medical team review what happened and assign blame. However, how does this review board get created? Elections? Appointment by the governor or county commission?

So it's better the way it is now? What does the Constitution have to do with anything? You can still sue, if you are willing to take the risk. If a person is so sure they have been wronged, let them sue. If they are sure they could win, but are a moron, let them suffer. I, for one, am sick and tired of people like the morbidly retarded McDonalds coffee lady. Apparently, she was shocked to find out that the HOT coffee was HOT. Or that guy in NYC who jumped in front of the subway train trying to commit suicide, lost both his legs, then sued, because the train wasn't stopped fast enough. Or the people that break into someone else's property, get hurt, and sue them.

I agree, the loser should pay the winner's fees. Also, a person should NEVER be awarded anything for something they did to themselves.

If the doctor is obviously at fault, then the jury should rule that way. If there is some gray area, I think the doctor should get the benefit of the doubt.

Most doctors want to help people. But there are many unknowns with medicine. Can we blame the doctor for things that the patient does not tell him? We can right now (he should have tested for it... ). Can we blame the doctor for the patient not following orders? We can now.

The problem is that people look at doctors as being mean rich guys when they are really just trying to help people (for the most part).

If a doctor majorly screws up, he should lose his license and maybe his shirt. But if the "victim" can't prove it, or the real cause is outside of the doctor's control, why should we penalize them (as the current system does)?

I like overland's suggestions: Loser pays and crack down on false reports.

What does "tort reform" mean to you?

It means restricting people's access to the civil justice system. It is also a total straw man advocated by industries which stand to gain a lot if you can't sue them when your engine explodes or your drinking water causes neurological damage or they remove the wrong limb. It is, in no way, a solution to skyrocketing malpractice insurance rates.

The argument is that without punitive lawsuits, insurance costs wouldn't be so high; that without high insurance costs, doctors and hospitals wouldn't have to charge as much; without such high health care costs, nearly fifty million Americans wouldn't be without health care. The problem is that this is all dependent on a false premise.

The current solution - at least as proposed by the White House - is to cap damage awards: a $250,000 limit on pain and suffering. Caps, however, do not work.

According to James Carville's Had Enough? (don't be frightened, children - I mention his name only because he cites a couple of sources to which I don't otherwise have access):
In fact, insurance premiums have never corresponded to to increases or decreases in payouts. Contrary to what some politicians would have you believe, con artists are not lining up outside courtrooms winning ever increasing awards for damages. As a matter of fact, according to American for Insurance Reform, malpractice payouts, including jury awards, have been steady for thirty years.

Further, the cost of lawsuits and damage awards account for less than two percent of health care costs. The Congressional Budget Office makes the following points:
Again, that's no evidence that tort reform reduced medical spending and no difference in health care spending between states with and without tort reform. This is buried, by the way, three-quarters of the way through a report which is otherwise going out of its way to try to justify "tort reform".

How would you implement a "fair" system that ensures that doctors are still liable for their mistakes, but not for the "stuff happens" issues that come up in health care?

First, I would make sure that doctors are liable for their mistakes. According to a New York Times article from March, 2003, 95% of good doctors are subsidizing the 5% of bad doctors who are responsible for over half of the nation's malpractice suits. And virtually none of the doctors - even those who have been successfully sued five or more times - are being disciplined outside the courts. They are still practicing - or malpracticing. The medical industry - and state medical boards - need to start policing their own.

One thing that would help is public accountability - a free-market solution which should work even for the most conservative here: publish the names of bad doctors. Congress has forbidden the publication of records of individual doctors. Repeal that legislation. Let state medical boards review any decisions against doctors in malpractice cases and, if they are found negligent (which would address most of the "stuff" that "happens"), make that known to their potential patients. The guilty doctors would be free to present their side of the case, but at least we would know whether the guy who's about to operate on us has already inadvertently removed the wrong organ from seven other patients. No one wants a bad doctor to screw up so that they can later sue him or her - should they survive. The publication of such information would soon weed out some of the primary causes of malpractice suits at the source.

A second, more important solution would be, as Carville pointed out in the case of California, insurance reform. Insurance companies are the only corporate bodies in this country which are exempt from anti-trust laws. Why? They are big campaign contributors and have an army of lobbyists in Washington - no other sane reason that I've been able to come across anywhere. Consequently, they can fix prices, set premiums and impose their collective will on health care system, exploiting the damage that a handful of doctors are causing on the entire medical practice - and their patients. Because malpractice awards get a lot of press, the insurance industry can write off a lot of their losses due to interest rates and investment income at the expense of health care.

Here's another free-market solution conservatives should love: competition. This is what California did in 1998: they decided that the state insurance companies should no longer be exempt from anti-trust law. They started competing rather than colluding and insurance premiums which had risen by 190% since the introduction of tort reform were suddenly rolled back by 40%. Who - apart from the insurance lobby - couldn't run with that?

An addendum to this is that insurance companies tend to set their premiums not on the basis of claims, but on the basis of the economy. Like most affluent individuals with disposable profits, they invest. When the stock market tanks, premiums skyrocket. A better economy than the one we've got would mean lower insurance costs, a reduction in charges by doctors and hospitals, and more affordable health care for everyone. That's not likely to happen, though, until we have a changing of the guard in DC.

"Tort reform", then, remains a mythological solution which addresses none of the real causes of health care costs - or even malpractice costs. But, then, the goal of "tort reform" isn't to address these issues in the first place: it's a means of further favoring corporate concerns at the expense of the citizen, a means of cutting off one more avenue currently open to the powerless in our society when they get wronged by the powerful. It's also a handy, if spurious, weapon for battering a political opponent who happens to be a trial lawyer.
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* CA Proposition 103 Enforcement Project Study, 1995 - AMA, 2002
** "Nevada's New Liability Program Won't Offer Immediate Results", Best Week Insurance News and Analysis, August 26, 2002.

What does the Constitution have to do with this? Is making companies and doctors pay huge legal fees to defend against ridiculous law suits in keeping with the thinking of our founding fathers? I don't think so.

Yes I am advocating that the plaintiff, sometimes a poor person, pay those fees. I am also advocating that the doctor pay the poor persons fees if they loose. Does this mean that sometimes, someone will get screwed by the system? yes, but overall it is the best solution I can see as it forces prospective plaintiffs to consider the possibility of loosing before filling a case.



She is the exception, not the rule. People file false reports every day. The do it to get back at spouse, ex-lovers, etc. The file false suits all the time. When I worked retail I had a security camera tape of a little old lady spotting a small puddle on the floor, then carefully sitting down near it. Next thing she did was call for help, claiming that she fell. She of course then sued the store. No problem, we had the tape right? It cost us a little over $45,000.00 to defend ourselves anyway. Where is the fairness in that?

And no, the Little Old Lady was not charged with fraud, filing a false report or anything else.





These are excellent ideas. Why not post these list for all to see? Why not allow patients to know the history of their doctors before procedures are done. I am all for it. Of course there will be the occasional doctor who was wrongly accused and losses business from this, but as with the Tort reform idea and our legal system in general, nothing is perfect.




OK, though I am really not a fan of Carville as a source I respect Wertz as one. I never knew that they were exempt from anti-trust laws. This of course should not be.

However, I have not experienced it either. When I was considering going into business for myself I looked into private health coverage. The care levels varied and so did the prices. The best overall care options from my family happened to also have the cheapest price tag of $330.00 a month vs. quotes as high as 500.00 a month. Seems to me, in this arena of health insurance at least, there is competition. So I was wondering where the anti-trust issues actually are? Who is effected by them and how?



Everything costs more because of law suits. You pay more at the grocery store and the doctor and the hair dressers, etc, because lawsuit and legal costs are part of the costs of operations that have to be overcome to make a profit.

Every time someone sues a school for 50 million because they can't play baseball the costs of legally defending against the case comes right out of the education budget. Should all the kids suffer because one doesn't like the rules?

Is it not more fair to have the loosing party pay the legal fees? After all if you win the case where you were wronged you wouldn't even have to pay the legal fees for it, the company that lost would. WOuldn't that be more Just?

Everyone is effected by frivolous law suits. In medicine a doctor tells the family that the procedure they are considering only has a small chance of success and that their is a strong possibility their child will die anyway. And the family signs all sorts of waivers regarding the risks. Then when the child dies on the table the doctor is sued. The parents don't investigate fault in the issue. they don't care if the doctor was really responsible they only care that they lost their child and want to blame someone.

Even when the court rules in favor of the Doctor we all loose because the doctors insurance company paid a ton of money to defend the case. And premiums DO go up based on costs. Insurance after all is a for profit business. As a consumer you are accepting an known loss now (your premiums) to avoid the cost of an unknown loss in the future (lawsuit, fire, buglary, tornado, etc). If Insurance doesn't remain a profitable business then it doesn't remain a business at all for long.

So the doctor has to pay more in premiums, thus he has to charge more. It is a terrible cycle, and one that could be eliminated in America if we just put the legal costs on the loosing side.

The insurance companies do other things to mitigate loss as well. Years ago it was the insurance companies that paid to put houses on the shore in southern New Jersey on stilts to avoid future damages. After a series of Noreasters many insurance companies refused to renew policies. Others saw the opportunity of long term premium revenues and invested in the insureds houses.

The Legal system is out of control. A women comes into a store to buy $20.00 worth of general stuff with a check. The register flags her because she has 8 check out in the last 3 days between 6 different stores. The store Loss Prevention Supervisor decides not to accept her check to avoid the possibility of fraud. She sues the store because of this claiming discrimination (as a side note the Loss Prevention Supervisor in this case was Black and thew woman was White). The store lost over $10,000 in legal fees to resolve it without ever going to court.

My local grocery store has some cracks in the sidewalk. If someone fell as a result and had minor injuries they would send them a check for $500.00 along with a letter informing them that cashing this check was a waiver of the right to sue. They did this to avoid the enormous legal costs. However, people are streetwise and once word got out they were getting multiple fall complaints a week (used to get a few a year). So in response they hired a contractor and insisted on ridiculous tolerances in the reconstruction of the concrete walks. The work is waaaaay beyond standards. It has none slip materials at every slope, every gap between pads is filled with rubber, it is painted a rainbow of colors to warn about curbs and the like. They spent over $200,000.00 to do this. Did it solve their problem? Nope someone "fell" in the first week they walks were reopened and filed suit. The case is a little over a year old now and still unresolved.

Where is the fairness in a system like this? Making the loosing side pay the winning sides legal fees simply returns some measure of fairness to the legal system.

I can back this up with personal experience overlandsailor. I moved from Texas to California in 2003 and my car insurance premiums dropped roughly 30%. Every other conceivable factor I could think of did not change - I was still married, my coverage level was identical, I was the same age, both cities were urban areas - in fact I didn't even change insurance carriers.

That seems to defy all logic because one would think that driving in a major California city would inherently have more risk than driving in a Texas city. I'm sure if I bothered to shop around for coverage now I could probably even save more, it just hasn't been high on my list of priorities.

The anti-trust laws seem to me to be the only reason why I got lower coverage with the same company in a different state.

The problem with your logic is that it ISN'T the doctor directly paying those fees. It's the doctor's insurance company who supplies the lawyers to defend him/her and pays the bill for whatever the outcome. Does the plaintiff have that option? You ever hear of "suing-person's insurance"? Doesn't exist.

And who pays the insurance premium for the doctor? The doctor's practice... and, by extension, the practice's patients. Does the plaintiff have that option? Nope. You're stacking the deck in a way that's not fair for a cause that's not really the problem. It's not about frivolous lawsuits. Those get dispatched pretty easily.

It's about ridiculous awards. If a doctor screws up and you lose a leg, do you want $250,000 for the leg, $2.5 million, or $150 million? Which is the level where you want "tort reform"? If you lost your leg, but got the $150 million, would you still want tort reform? Or would you think the award was ridiculous?

Interesting. Though I am not disputing this, I have seen this happen as well, though logically. When I moved from New Jersey to Kansas City, MO. my insurance rates dropped dramatically. Even though I moved from the Suburbs to the Inner City. When I moved from KC to the burbs of St. Louis my rates dropped even more.

This is of course because there are more accidents in NJ then in MO and there are more theft and property claims in the inner city then in the burbs.

In your case, I would have to assume that it is insurance regulation of some kind because CA, at least southern CA is almost as bad to drive in as NJ.



Great illustration of the big problem and what I want to see fixed with basic Tort reform. People who file nuisance and fraudulent lawsuits, or even legitimate suits seeking illegitimate rewards are driving MY costs for insurance through the roof. The same holds true for the products I buy from stores and the services I seek from all professionals.

Is it fair to allow these people and Lawyers who would manipulate the system to drive my cost of living through the roof?



Depends on the case. This is why I don't advocate award limits on damages. For example, would the leg have been lost without treatment anyway? Doctors try to save people and parts of their body even when it is near hopeless. When they fail people come out of the wood work to tell the family how they could sue.

Lawyers come out of the wood work and try to convince people to sue all the time. An example close to my heart is the death of my own father from a fall at work. In my opinion his death was at least partially his fault because he choose to work without safety gear. If he refused the union would have backed him. Now, some consider his employer at fault because the safety gear was impossible to use in that area. Interesting, and I consider them partially at fault as well (though the majority of the blame belongs with my Dad). However it is irrelevant because my Mom can not sue the employer in this case in the State of New Jersey.

Harold Moyle, 64, Local 595, electrician, General Motors, Linden, N.J. Died from an 8-foot fall through a drop ceiling panel onto a steel floor.

Not much of a link but it is all I could find. His as well as others names are listed at the bottom of the page.

So My father is at least partially at fault as well as his employer. Legally you can't sue the company and why sue a man who is no longer with us (assuming you could). End of story right?

Nope, here comes the lawyers. They tell my Mom that she can sue Merch (sp?) because that company owns the property. Though they would not win in the long run Merch would likely settle to avoid the costly legal battle.

She can sue the security company. Why? they have nothing to do with the death. Because she could win that one by suggesting that if they had been properly preforming their rounds they might have prevented the death. How? according to autopsy he died on impact and it is not the security guards job or training to enforce safety rules. It is also not part of the contract covering what they are there to do. Lawyer doesn't care about that, they can win he says.

How is he paid? 40% of the settlement which he claims will be an easily settled deal resulting in a payout of about 1 million total. 1 Million from companies that had NOTHING to do with his death!?!?!? is that not insane? Also, if it so easy why should he get paid $400,000.00? But that's another topic.

If, however there was tort reform that forced loosers to pay the winners legal fees then the legal costs would not be such a threat and companies could seek to defend themselves without the fear of major costs in the defense.

So many people just see: "Big mean evil corporation, insurance company, doctors, etc." What they fail to see is how much their anti-corporate biased is costing us all.

overlandsailor, I'm sorry about the tragedy and even more sorry that some greedy schmucks came out of the woodwork to capitalize on your family's grief.

But your plan still doesn't pass the "law of unintended consequences". If a jury understands that a plaintiff in the case is poor and is looking for relief (and every good lawyer knows how to get that information across), the jury can still award the plaintiff $1, which would trigger your change and the plaintiff would receive legal fees, so that won't discourage lawyers at all, since they would get paid anyway. And the defendent's lawyers will know that and settle early as well.

In truly frivolous cases, judges can grant summary judgement before the case even gets to jury and award legal fees. That process is already in place, although many judges don't use it that often, for some reason that I never have comprehended.

Don't focus on tilting the odds against the plaintiff, because juries won't let that happen. Your family scenario should be looked at for other ways to make the whole thing work better.

Good point. But then, which is worse? The current system where the people and companies wrong sued always have to pay their legal fees regardless of how crazy the suit is? Or the proposed change that would at least give them the opportunity to recover that loss from the party responsible for it?



Well I have seen a judges dismiss case after case that were brought against a friend by and ex-boyfriend. He filed criminal charges and civil disputes against her almost weekly. The judges would toss out the cases, usually immediately. Problem was, apparently (maybe it was a NJ thing) if the case is immediately dismissed you can't sue for harassment and win. But even though the judges saw this guy file ridiculous claims that were obviously false, no one ever once tried to prosecute him for filing a false report, fraud or perjury. Who knows why the system ignore this. However, if we got serious about it and more importantly got serious about holding the Lawyers who bring this insane cases responsible, after all they are officers of the court, maybe we could help return the system to some level of sanity.

Having winners legal fees paid by loosers is not perfect. But it is a heck of a lot better, more just, and more fair then the system we have now. Because there is at least a chance from fairness and justice when these things happen.



Thanks, but honestly I did not bring this up for sympathy, I brought it up as a good illustration of how these so called "officers of the Court" are acting. Perhaps it should be the loosing LAWYER for pays the winners legal fees?

If you're getting the minimum required coverage in each state, CA has a lower minimum liability limit than TX, which is likely responsible for the discrepancy between states. I lived about a mile from the eighth most dangerous intersection in the country in Plano, TX. TX isn't exactly a safe-driving state.
Caps do work. Malpractice reforms in the 1980s led to a 34% decline in malpractice premiums in states that enacted them, compared with states that did not enact those reforms, according to the U.S. Department of Health and Human Services: "Interest groups supported by trial lawyers argue that the recent crisis in the medical litigation system is only a reflection of an "insurance cycle": they claim that the management practices of the insurance industry have caused the crisis. But their claims are not supported by facts. Comparisons of states with and without meaningful medical liability reforms provide clear evidence that the broken medical litigation system is responsible."

Steady…That must mean a steady line going up and up. Your own Congressional Budget Office link shows this. In just five years, average legal defense costs have grown from 8,000 dollars a claim to 27,000. Malpractice payouts have gone from $95,000 in that year to $320,000. The CBO gets most of its figures from the General Accounting office, which says, “Multiple factors, including falling investment income and rising reinsurance costs, have contributed to recent increases in premium rates in our sample states. However, GAO found that losses on medical malpractice claims -- which make up the largest part of insurers' costs -- appear to be the primary driver of rate increases in the long run."

Next, what do the state figures cited by Carville tell us? Not much, because there is he doesn't offer a comparison of rates of increase in premiums before the caps, and rates of increase after. We don't know how things were before those caps...And there is no comparison to rate increases in other states. Though premiums have increased 190 percent since 1976 (in CA) after the caps, according to this article, malpractice payouts through most of the US have gone up 1300 percent (average) during that same time frame (more than twice the rate of medical-care inflation). Likewise, the American Academy of Actuaries (a pdf file, click on ‘the evidence is in’) confirms that caps on noneconomic damages are an effective means of reducing malpractice costs. The GAO report (linked before) also verifies dramatic differences between insurance increases in capped and uncapped states.

Then, there's the reasonability test. If malpractice insurance is such a lucrative business (and it must be, if payouts have remained “steady” for 30 years, and premiums are going up and up) why did the country's biggest malpractice insurer, St. Paul Companies, leave the business entirely due to catastrophic losses, three years ago? Why are only two insurers left (out of 10 just five years ago) in Pennsylvania? Why is it increasingly difficult and expensive for physicians to obtain coverage?

That figure ignores the billions spent on defensive medicine, on hospital in-house lawyers, time doctors spend with lawyers instead of with patients, and self-insurance. Physicians adjust to minimize risk. According to the Harris Poll 79% of the physicians polled say they order unnecessary tests; 74% make unnecessary referrals; 51% suggest unnecessary biopsies; 41% prescribe unnecessary antibiotics. The price tag: an estimated $60 billion to $108 billion a year in unnecessary health-care costs.

It does in Germany and the UK. In the UK and Germany, the loser pays, but they offer special insurance to the plaintiff that will cover what they'll owe a defendant if their suit fails.

...Another good idea, practiced by the German legal system, is to appoint neutral expert witnesses for malpractice cases, rather than just rely on ones hired by the plaintiff and defendant.

Edited to add: I agree with Wertz's idea about accountability and publishing the names of bad doctors, and agree that insurance companies should not be exempt from anti-trust laws (a fact I did not know).

A prior poster commented:

I would like to briefly point out a few things about that (now infamous) lawsuit that many people might be unaware of, using text I posted previously in a seperate thread.

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According to the Wall Street Journal at the time of the McDonalds case in 1994, the jury which considered the issue was primarily concerned with the callousness and indifference on the part of McDonald's Corporation regarding the risks. The following are some of the less well known points:

1. McDonald's routinely kept its coffee hotter than other restaurants by at least 20 degrees or more, and had legally settled more than 700 incidents of scalding in the decade prior to the 1994 incident, but never consulted any burn experts, or made any changes to their operating procedures. McDonalds was consistently keeping its coffee at 185 degrees, a temperature at which third degree burns occur in just two to seven seconds, often requiring skin grafting, debridement, and whirlpool treatments which are painful and can cost tens of thousands of dollars.

2. The 81-year old retiree in question suffered third degree burns on her groin and thighs which required surgical skin grafts and a 7-day hospital stay. She did not want to sue McDonald's, but in her case, McDonald's refused to pay for her hospital bills.

3. During the trial, a company quality assurance manager testified that McDonalds was aware of the risks but did not intend to turn down the heat or to post warnings about the possibility of burns.

4. When it came to the verdict, the jury found McDonald's had engaged in willful, reckless, malicious, or wanton conduct, and rendered a punitive damage award of 2.7 million. Punitive awards in such cases are designed to punish a reckless defendant and prompt changes in business practices. McDonalds generated revenues in excess of 1.3 million dollars per day from the sale of coffee alone, vending approximately 1 billion cups of coffee each year, so the punitive damages amounted to approximately two days worth of coffee sale profits. On appeal, the damages were reduced to $480,000, which was not widely reported in the media or attract much attention from the press.
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With regard to attorneys contacting victims and trying to convince them to sue (as overlandsailor and amf were discussing), this sort of behavior is very unethical and prohibited in most jurisdictions. Most attorneys are ethical but some resort to this sort of misconduct as overlandsailor has personally experienced. If you get a call phone out of the blue from an attorney who is trying to solicit you to sue over an injury, report them to your state's bar association and disciplinary committee.

Compensatory damages -- the ones that pay back a specific damage instead of just to punish -- were $200,000 with 20% liability to the plaintiff, so that made the final judgement of $160,000. For third-degree burns over 6% of her body.

Check out The Actual Facts About The McDonalds Case.

The reason I also bring up this part is that there are two parts to most awards: compensatory damages -- which are related to the specific damage being addressed in the lawsuit -- and punitive damages -- which are meant to punish the defendent.

Most people deride what some juries specify for punitive damages, rarely for compensatory, since those tend to be based on things like medical bills and such.

Hey Azure: who ends up receiving the punitive damages?

The plaintiff. As you mentioned, punitive damages are designed to punish wealthy dependents in order to give them a reason to not hurt people in the future, a form of deterrence. If only the cost of only compensatory damages was considered by a defendant that knew its conduct was injuring people but it wasn't significantly affecting the financial bottom line, the lawsuits would not have much of a deterrent effect. Prior to the 1994 case involving the 81-year old, McDonalds had seen such injuries many times before; company documents showed that in the previous decade, McDonald's had received at least 700 reports of coffee burns ranging from mild to third degree, and had settled claims arising from other coffee scalding injuries for more than $500,000.

So here's why I don't think "loser pays" will really spur "tort reform". Because juries will still award millions and billions in punitive damages and the plaintiffs get to keep that. In other words, the tobacco lawsuits will still end up with billion dollar punitive damage awards even if compensatory damages in in the hundreds of thousands of dollars. All because the jury wants to punish and the defendent is wealthy enough to pay it (maybe). Loser pays doesn't solve this.

Does it really make sense in the absence of actual damages over and above compensatory damages to the plaintiff that they should keep the punitive award? If we make it impossible for the plaintiff and plaintiff's lawyer to make claim to any punitive damages, wouldn't that make it more likely that a lawyer will not waste time with frivolous lawsuits?

I'm not saying get rid of punitive damages, because their punishing effect is very important. But why should the plaintiff receive any of that?

OK, so based on your post you are saying that out of 10 Billion cups of coffee sold by McDonalds in the decade prior to 1994 only 700 people managed to harm themselves.

0.00000007% Seems like a pretty darn good safety record to me. Even if you consider human nature and say that only 1 in 1000 actually filed complaints then it is still 0.00007%. Now we all know there are more then 0.00007% of human beings that are idiots.

Is it not possible that they caused their own injury? Hey I never got coffee from fast food places because they all kept it too hot and I didn't want to wait to drink it. Should I seek a lawyer to sue for being deprived of their coffee? I bet I could find one who would take the case.



He also said that McDonalds didn't feel they could lower the temperature and stay within the FDA guidelines. McDonalds was keeping the coffee hot at the top end of the recommended temperature to avoid possible fines and lawsuits. If their complaints were higher then 0.00007% they might have reconsidered. Ironic.



So how does that work with all the ambulance chaser TV ads we see these days? Ever seen Asbestos at work? call us to sue. Got headaches? Call us to sue. etc, etc. Are these any more ethical then those phone calls?




Interesting idea. Since the intent of punitive damages are supposed to be to punish wrong behavior and not enrich a plaintiff or their lawyer then why not award such damages directly to charity. In the Mcdonalds case it could have gone to the city burn center.

Or better yet, eliminate punitive damages all together and empower the judge to levy such amounts against the defendant by way of fines.

I still think loser pays is a good reform. However it would be nicely enhanced by the elimination of plaintiff / lawyer enriching punitive damages.

Now all we have to do is get pain and suffering amounts down to common sense levels.

Check out some of the suits people won here: 2003 Stella Awards

Everyone questions the Stella awards so heres one:

Law Fun


And another:

Lawsuit Horror Stories from CALA

Not if the company was vending a defective product in the first place. By defective, we mean unsafe and without specific warnings as to the danger.

If a company makes a safe product and due to factors not reasonably within their control a small percentage of people still get injured, then we should not hold them responsible. But if they are making a defective product, even if it is 0.000000000001%, that one person who is needlessly injured is entitled to a recovery.

The plaintiff in question did not spill some coffee on herself and get angry because it ruined her clothing or inconveniced her plans for the day. In just a matter of seconds, she suffered third degree burns on 6% of her body and spent a week in the hospital with skin grafts, whirlpool therapy treatment, and countless thousands in medical bills. McDonald's refused to lower the temperature of their coffee to industry norms, or warn customers that McDonald's keeps its coffee hotter than other vendors, to the point where third degree burns occur in just seconds if you happen to spill it on your clothing.

It's easy to poke fun at the victims and think of them "idiots," since they spilled coffee on themselves. But we all know that coffee does get spilled on people, and that it happens all the time. It is more than reasonably foreseable that it's going to happen, again and again, every day in America.

Suppose we make the scenario ridiculously more extreme to illustrate the point. Suppose for some reason, a nationwide vendor like McDonald's chose to keep their coffee at 3,000 degrees (let's just pretend this is possible, despite the radical departure from reality). Suppose the burns that occur now during an accidental spill are potentially lethal, and result in death (let's pretend somehow if they let it cool down and drink it, it still tastes fine - its just that accidental spill when you first buy it that is the problem). Surely at this point, you can see how irrelevant it is from a product's liability standpoint that the victim was the one who accidentally spilled the coffee on themselves. Products liability does not excuse a defendant for a dangerous product when the victim misuses the product in a manner that is commonplace and reasonably foreseable.

Returning to reality with our 185 degree coffee instead of our surface-of-the-sun temperature coffee, I'm sure we can agree that it therefore becomes a judgement call as to whether McDonald's 185 degree coffee was unreasonably hot versus 160 degree or less coffee which is commonly vended by everyone else. At the trial, expert testimony was introduced that any coffee temperature over 130 degrees could theoretically produce burns (if contact was maintained long enough), but that temperature differential made a huge difference. Coffee at 180 degrees can produce third degree burns when contact is maintained up to 12 seconds. COffee at 190 degrees can produce third degree burns in less than 3 seconds. Coffee at 160 degrees (the industry norm) does not start producing third degree burns unless contact is maintained for 20 seconds.

With McDonald's having typical coffee temperatures being measured at 180 or 185 degrees, we're dealing with a coffee that is going to burn you more quickly and give you only seconds to react; those few seconds are vital to seperating the wet clothing from the area of skin being burned, or wiping off the hot coffee when it is spilled on the skin.


Of course the victim is involved in their own injury - they spilled the coffee, right? When someone gets hung up on this angle, they miss the bigger picture and fail to consider the liability of the defendant in vending a defective product in an unsafe condition without warnings.


Hmmmm.... this is very new to me. I've never heard of this; that the FDA said McDonald's had to keep the temperature so hot? What is the basis for this, and why does everyone else in the industry keep the temperature so much cooler (and presumably in violation of the FDA guidelines?)

overlandsailor, could you provide some information on this, perhaps the FDA guidelines themselves or something to corroborate this?

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Asking if they are "more ethical" does not make much sense. Perhaps you're asking "are they not just as bad" as the lawyer who would call up a victim at their home and try to talk them into suing? I would argue, and the weight of the ABA and the professional academic community would be behind me (law school professors who teach legal ethics, etc), that there is big difference between a lawyer who targets an injured individual and contacts them directly (either in person or on the phone) and tries to talk them into suing over an injury, and a lawyer who takes out an advertisement (be it television, radio, phonebook ad, etc) which reaches the population on the whole, telling you that if you've been injured, their firm can sue on your behalf.

I personally find those TV spots distateful, and would prefer to see an ad that goes something like this: it lets the audience know the firm exists, that they specialize in the following areas, and how to contact the lawyer if they want a consultation or need legal advice. But these advertisements do not cross the line and incur sanctions and disciplinary action as they would in a scenario where the lawyer actually tracks down an injured party and solicits them. Lawyers have to advertise, just like everyone else; and it's really more of a feeling of distate that you get from the ad than anything else. I can think of tons of advertisements selling countless varied products or services that have impacted me negatively, or offended me for one personal reason or another; should those companies be banned from advertising them in the manner they selected? Certainly not.

Returning to the original point, if you get a call phone out of the blue from an attorney who is trying to solicit you to sue over an injury, report them to your state's bar association and disciplinary committee. If you're watching a television commercial, change the channel, just as you would with any other ad you don't want to watch.

I've not heard of this "FDA guideline", and I would doubt that this guideline is the FDA's, since restaurants are normally regulated by the local health board and not the FDA.

As for why the high temperature: a more plausible explanation is increased sales. Hotter coffee puts off more steam, which smells damned good in the morning at McDonalds and increases their sales of coffee. Seriously. That was the reason they didn't want to lower the temperature: it would lower sales as well, because the smell wouldn't be there to encourage people to buy it.

As for whether the "idiot" was also at fault: the jury found she was 20% liable for her injuries and removed that from her award.

By the way, the woman also wanted to settle for $20,000 initially for her pain and 8 days in the hospital and McDonalds said "no". So much for the corporation being the "good guy" here.

And, sailor, donating the punitive damages to charity is one idea I've had. Another is to have it go toward indigent defense, which is almost always underfunded by the state, although I can see how there might be a lot of extra money left over if a jurisdiction ends up with a tobacco case.

But I still don't think we need "loser pays", even if insurance for it could be available as described by Mrs. Pigpen. That's just adding risk to the lawsuit over and above what's fair. Lawsuits shouldn't be like playing craps.

I think the general principle being referred to by amf and Azure Citizen is fair enough, but I can't help thinking that, in the particular case in point, the McDonalds Coffee plaintiff was more than 20% to blame.

She was scalded on her inner thighs because she bought her coffee, got into her car, placed the hot coffee between her knees and drove off. When she had to stop suddenly, the coffee spilled and she received her scalds.

As Azure has pointed out, cooler coffee would probably have still scalded her had it been in contact longer, but I ask you - would she, being an elderly lady and no spring chicken, have been able to have safely stopped her car, unbuckled her safety belt (if she was wearing one - if she was not this may have contributed to he spillage?), and either got out of the car or straightened her legs enough to be able to pull the hot-coffee-soaked fabric away from her skin rapidly enough to have prevented the scalding, even if the coffee had been "safely" hot rather than "dangerously" hot? Personally, I doubt that she would have been able to save herself from any coffee hot enough to scald (i.e. anything anyone would describe as hot), and so it would not have made much difference where she had bought the coffee from.

Clearly, the jury thought so. Or, since we are not privy to their deliberations, they might have just thought that the poor dear hadn't been treated very well by McDonalds after the incident itself (as you've highlighted) and decided, well, McDonalds deserved to be punished and, heck, they can afford it, so why not? I tend towards the latter interpretation.

I think this case reveals something about the way juries think. I believe that juries should establish the balance of guilt in these cases, but that the presiding judge should set all damages and cost attributions according to published guidelines.

I am no fan of McDonalds, or any other big business, but I think the compensation culture is way out of hand. Even frivolous lawsuits that get tossed out of court cost the defendents money on legal bills, which is why loser pays has some conceptual merit. As it stands, the only people guaranteed not to lose are the lawyers, and while they are entitled to make a living, surely that should not happen at the expense of common sense or (dare I say) justice?

Ok, then to follow this logic. If someone cleans a gun and accidentally shoots themselves in it the Guns manufactures fault? If some orders those red hot Fajitas at Chillis and accidentally knocks the steaming hot cast iron plate in their lap, is chillis at fault? If someone crashes into their garage door because it didn't open when they hit the opener button is that the garage door makers, or the installers fault?




No I can't. I thought that part of the defense was common knowledge because at the time of the case people around me were asking: if they were following the guidelines then why is the government not being sued? However, I think AMF is right and it was not FDA guidelines. I believe this was probably state health dept guidelines, however I have been unable to find a link.



Life is a crapshoot. Why should you have more protection financially when you file a law suit then when you invest on wallstreet or take a job? Sometimes, regardless of our best efforts, we loose. No system will work 100% of the time. So the focus should be on what is fair for all of our citizens. I don't think it is fair to have my insurance costs, durable goods costs, food costs, etc keep going up because of the ever increasing legal costs of doing business.

Why is it fair to make a company, wrongly accused of something, pay 10s of thousands and even hundreds of thousands of dollars in legal fees to defend themselves? Small companies go under all the time because of these issues, be they a suit against the company or the fact that the company can no longer afford their insurance.

To your first set of questions: yes, under certain circumstances. Because you purchase a gun to shoot things, if it shoots something, then it's harder to prove negligence. But...

If the safety didn't work, if the gun did not come with instructions on how to clean it or use it, if the gun didn't come with instructions about how to clean it, use it, store it safely... then in all those circumstances, the manufacturer -- if you purchase it from the manufacturer's representative or designated retail location in new condition -- could indeed be held liable. Unless your state has passed laws giving gun manufacturers a pass on their product liability.

As for Chili's: oh, yes, and I'm sure if you did a search on Lexus/Nexus, you'd find that they do indeed get sued or end up paying damages for those fajita hot plates burning people.

And, again, the company isn't usually the one paying for legal representation for these lawsuits: that's why they have insurance. And we -- silly plaintiffs who do idiotic things -- don't. And you're using "small companies" as a red herring for emotion and it's not realistic. I've had several small companies go under and it's usually because someone does something really stupid, like not pay their taxes or buy insurance. I have insurance and I'm a one-person consulting company. It doesn't have to be so expensive and it's usually less expensive than being sued.

And you want to use the word "fair" in your argument, but then say that "life is a crapshoot"? What's fair about craps? The odds favor the house, not the player.

OK, I am with if the product is defective as in you non-functioning safety example. (Of course the safety shouldn't need to be on when cleaning a gun because the gun should never be loaded when cleaning it, but that is another issue). However, the last pencil I bought did not come with instructions on how to sharpen it. So, if I use a bowie knife to sharpen the pencil and end up chopping off my finger is the pencil manufacturer at fault because they did not provide sharpening instructions? Or is the Bowie manufacturer at fault for not providing instructions that said "Not to be used to sharpen pencils". Or are they both at fault? Is there not a point when a person is held responsible for their own stupidity?

If you buy a computer would you clean it without knowing how? If you do and short it out do you expect a replacement from the manufacturer? If you do it and you get shocked to you expect damages for your injury? If you buy anything, and do not know how to take care of it YOU are responsible for learning how. Go to the library, ask a local expert, or hire a professional to do it for you.

I bought a roll of electrical wire the other day. On the package it did say to ensure the power was off when doing any electrical work. It also said the limits of the wire when it came to current, voltage, etc. What it did not say is how to properly install it. So, if while installing it, I accidently put a staple through the wire that causes a short, that results in my house burning down who is at fault? Personally, I would say I was for being careless. (Being that electrical licensing is an issue lets assume this is a low-voltage application when doesn't need a license in you area).



This is certainly NOT a red herring. I have been looking into starting my own business for some time. I have not because of the miles of red tape as well as the costs. One of the highest costs is Liability Insurance. Why so high? lawsuits. My work is done in/on peoples homes. So property damage is a risk. Most professionals are able to fix most issues themselves, or are willing to hire another professional when the damage requires it. However, many customers see issues like this as a new payday. You put a hole in my wall, I know you patched it and painted it but I still know it is there. It is causing me emotional distress...etc, etc.



First, the odds favor the house but they are the best odds for the players in the house.

Second, I use fair, because it is suggested that it would be unfair to the plaintiff to make them pay legal fees of the defendants on cases they loose. I simply asked why is it fair for the company to have to pay those fees on cases where they were not in the wrong.

Yes they have insurance in most cases. However, the rates of insurance have been increasing and it is simply common sense that as the costs of insuring people increase with the increased number of lawsuits the Insurance company will raise it's fees to remain profitable.

There are also an increasing number of companies that are self insured. Most are larger companies but I still ask why is it fair to make them pay the cost of defending against these lawsuits.

Why is it fair for me, your average consumer, to pay more for EVERYTHING because these lawsuits result in the cost of doing business going up and thus the price I pay for goods and services go up as well.

Why it it unfair to make a plaintiff who looses a suit pay the legal fees of the defendant when those that win their suits have their fees paid by the defendant? Doesn't that actually make it easier in smaller cases for average people to seek justice?

Just to add my 2 cents here, one of the resolutions that was briefly mentioned would be a medical review court to hear all medical malpractice cases. This, I think, is probably one of the better solutions for determining whether malpractice did, in fact, occur.

A major problem in medicine is that certain procedures carry with them certain risks. Surgery, for instance, is EXTREMELY dangerous, especially under general anesthetic. To begin with, certain genetic disorders can predispose a person to react violently to anesthetics, to say nothing of the risks inherent in general anesthesia in and of itself. In general, most invasive medical procedures carry with them risks. for instance, the thrombolytic used to treat a patient with a heart attack can kill patients who have certain bleeding disorders. This is why the medical profession utilizes INFORMED CONSENT. Patients who undergo medical procedures should be and generally are briefed of the benefits and risks of their procedure, and are allowed to make their decision accordingly. Most responsible medical facilities have the patient or the patient's representative sign a form that outlines those risks.

It sucks when tragedy strikes on the operating table, or during childbirth, or during any other medical procedure, but these things unfortunately can and do happen, whether or not the doctor is competent. I agree that malpractice should be punished severely, but as it stands, malpractice is neither clearly defined, nor tried by individuals competent to determine whether or not malpractice occurred in the first place. Juries just are not equipped to make that determination. It is ALMOST (and please accept this analogy for what it is -- an analogy) like trying a case before a jury comprised of non-english-speaking foreigners: not speaking the language nor familiar with the culture, they cannot be expected to fairly reach a verdict. Your "average" juror is simply not versed in medical terminology, nor the risks inherent in medical procedures, and often the unfortunate result is a ruling based on emotional appeal more than objective fact.

A medical "tribunal", however, would eliminate that problem, and alllow medical malpractice trials to be conducted fairly and objectively.