Second, you say that they would be impartial, but would they? Imagine your house burns down and your homeowner’s insurance company refused to pay. To get to trial in NY it takes 5 years. If your insurer proposed an “insurance court” where the jury consisted of insurance company executives but you got to court in 2 years, would you think of that as a good idea? Would you feel they would be impartial? More impartial than a jury of people with no skin in the game? I wouldn’t. That’s how I feel about anyone judging their own.

As to expeditiously, who knows? You’re going to find this jury of physicians, presumably in the specialty involved, to sit for weeks and hear the evidence? Because they’ll still have to hear testimony, both sides will still want an opportunity to cross examine, and the plaintiff will still need their own expert since the lay victim likely doesn’t have the knowledge and may not have the capacity to testify. I don’t see how that happens any quicker. Nor do I see how it’s any cheaper for the public. As to taking 5 years now in that state, that’s going to depend on the judge and his willingness to move his docket. Not to mention, the only way insurers are going to back moving cases faster is with caps. It does them no good for people to get paid on claims faster or make it easier for people to file.

Aprreciate your response. Why not begin with your issues with Health Courts rather than today’s system? From service to verdict or settlement, in NY the average suit takes about five yrs to conclude (not counting appeal.) Would not Health Courts arrive at a conclusion expeditiously, impartially, and more evidence-based than the current Hired Gun method?

Actually, we do take an oath. But you are apparently the expert on “professions”, so you probably knew that. Although your days as a “profession” are numbered as you become federal employees and merely another cog in the wheel.

” Why should a stay at home mom or retired person be granted a lottery judgement of millions when they never would have earned that income in several lifetimes.”

Clearly you’re the expert, but you do know that most of the time someone with a million dollar judgment has a judgment that large because they will have significant ongoing medical care (money paid back to the medicine industry). Now, I’ve handled a few million dollar cases in my time, and each of them involved the death of a spouse or a catastrophic ongoing injury. Maybe you play a different lottery in your state than mine, but in mine winning the regular lottery doesn’t cost much more than a few dollars. It certainly doesn’t involve such a devastating injury. Do you know any medical malpractice “lottery” winners you would trade places with? I thought not.

“Judgements for negligence are deserved, but they should be to provide for future lost earning at the same earning rate. ”

Are you an economist as well? I typically use the same economists the defense bar uses in those kind of cases. Not long ago I represented a woman whose husband was killed. He was 45 and made approximately $25,000 a year. My economist, who the defense didn’t even depose because they trusted his figures, estimated the economic loss at over $600,000 given his expected life span, earnings power, etc. So it’s really not that hard to get to a high number. If you’re a middle aged physician, you’re probably looking at the high 7 figures were you to be run over in a crosswalk and killed today. But you know what, your family who received that money certainly wouldn’t feel like they were “lottery” winners.

“Not millions just because we feel bad for you and oh by the way the lawyer gets 40%! Malpractice is still a lawsuit against an individual not an industry. They are entitled to a jury trial by the constitution. Suing an insurance company (not an individual) is not comparable.”

How much do you believe the lawyer should get, based on your experience trying medical malpractice cases? If you want to cap what people can pay their lawyers, that’s OK I guess. Doctors let the feds set their pay, so I can see where that worldview is OK with them. However, be sure you cap the defense lawyers’ pay too. For some reason, most “reform” only wants to hamstring one side.

As for juries giving millions because they feel bad, again that’s a belief by physicians that really doesn’t have any merit. I realize you cling to it regardless of all facts to the contrary, but every defense lawyer I know requests a jury trial and doesn’t want a bench trial in a negligence case.

Not sure about your last comment. You’re right, that you do sue an individual in that situation. However, it’s typically an individual who has contracted with an insurer to provide a defense for them, and to pay any judgment. So the individual has given away a lot of their interest in the case to the insurer. Which makes the insurer a pretty big factor, wouldn’t you agree?

As for Mr. Howard just being an M&A lawyer, his bio on the site says he also does litigation. Not sure how it reflects a bias to acknowledge what his own bio says.

Big Tobacco is not a strawman in tort reform. Big Tobacco is what started the “grassroots” tort reform movement. Look at the links I put above and the many others. The money was funnelled to these state “tort reform organizations” through C&B. Again, these are not my fantasies – you can read the original documents, where they cite the millions moved through there.

As to showing the fallacy in his arguments, Mr. Howard has made a number of arguments in a number of different arenas pushing the interests of his clients. So I don’t know which argument you would like me to reply to. But I will be glad to if you want to pick one.

If you’re talking about his statement in Kevin’s article: ” by using health courts, “information about each (malpractice) incident … would be compiled and disseminated so that doctors and hospitals could learn from their errors.”" I agree doing that is a worthy goal. But why do we need damage caps to do that (which is what health courts contain and the real reason they’re pushed)? The insurers track that information now – why isn’t it redacted of personal information and disseminated today? No need to curtail individual rights to do that.

Again, you may believe him wholeheartedly. I would just suggest that in all matters of politics, you follow the money, as I know you do when the other side makes a statement. Try not to fall into the trap of myside bias and really study the information underlying someone’s conclusions before you adopt them as your own, and consider any bias they may have. For example, if the AAJ (ATLA) were to put out a study showing med mal carriers made lots of money in year X, I would expect you to say “Sure, but where are the states for the years preceding and following that one? Give us the complete picture.” That’s only smart before relying on one isolated stat to reach a conclusion.

As to my bias, you’re correct, I do have one. I favor the rights of an individual over the government. It’s the libertarian in me. It’s why I wish your industry was more free and why I do not want the government doing what juries can do just to favor corporate America. So yes, my positions start with that bias at all times. The less government the better. The incestuousness between the government and corporate America, and its resulting effects on us individuals makes me ill.

The fact is loser pays doesn’t exist like most people think it does, where no matter what if you lose you pay. And frankly, we probably wouldn’t want it to in this country.

Are you serious? What’s your reference?

Disqualify him as to what? Covington & Burling still represents these entities and has for over a decade. They’re a major Washington lobbying firm – do you think they let their partners act in ways that are antithetical to their clients’ interests? Particularly in such a public forum? Look at their client list on their website.

Look at his representative clients on his own biography page, and his description of what he does. Do you think a partner in a major law firm gets to spend as much time as he does lobbying if his clients don’t benefit? The average profits per partner there is around $600K. And that’s an average. If you’re not billing, you better be doing something for the client to justify that kind of cost.

Here’s an interesting question – who funds Common Good? For that matter, who funds the groups on the other side. If you look behind these think tanks at who’s doing the paying you’ll know before you even start what their position is.

Look, you may read his work and find it fully supported in every way. But I would expect you to apply the same level of skepticism you would if the head of ATLA were making a speech on the issue. If after doing so you find that the facts are solid and back his conclusions, great.

And really, if you’re in a bind because of someone else’s negligence, do you think Covington & Burling and Mr. Howard are going to represent you? Who do you think they’re looking out for if you’re injured? You, the individual? Or their impressive client roster, including the pharmaceutical, insurance, and tobacco industry? They want to eliminate the contingency fee – can you afford Mr. Howard’s hourly rate against, say, the insurance company of a truck driver who hit you and rendered you unable to work? I hope so if you’re backing their interests so strongly. Their goal is not to make sure the courthouse doors are open to just anyone.