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Patients don't deserve to be ruined, either. Risk from unfair lawsuits and misfires of civil law are something we all have to accept.

sliverstorm 13y ago
Patients don't deserve to be ruined, either. Agreed Risk from unfair lawsuits and misfires of civil law are something we all have to accept. Not agreed. First of all, you give no reason why "it just has to be this way". Is there no compromise, no middle-ground? Second of all, it's awfully easy for the patient to decide the doctor should bear all the risk, eh?
- dragonwriter 13y ago
  > Is there no compromise, no middle-ground? A civil lawsuit system with proof requirements for damages but full exposure to at least all actual damages is the middle ground (or at least one of them.) Patient bears all or disproportionate risk (as is the case with damage caps or not having a liability system at all) is an extreme, as would be doctor bears disproportionate risk (which would be the case with something less than the usual civil standard of proof, or a presumption of guilt that had to be rebutted). You can't really get "doctor bears all risk", because no matter how easy it is to punish the doctor, or how extreme the punishments are, the patient is still going to bear the risk of non-compensable injury or death from medical malpractice. > Second of all, it's awfully easy for the patient to decide the doctor should bear all the risk, eh? That's not even a possible option (much less a fair description of anything on the table), so while it might be easy for someone to decide it in the abstract, its not really relevant to the issue at hand.
  - chc 13y ago
    > A civil lawsuit system with proof requirements for damages but full exposure to at least all actual damages is the middle ground It's trickier than that. Will the prosecution pay the defense's attorney fees if the doctor wins? Because otherwise you incentivize frivolous suits meant to force the defense to settle because winning is more expensive than settling.
    - dragonwriter 13y ago
      > Will the prosecution pay the defense's attorney fees if the doctor wins? Sometimes, but winning isn't enough. > Because otherwise you incentivize frivolous suits meant to force the defense to settle because winning is more expensive than settling. This assumes that "unsuccessful" is equivalent to "frivolous". The fact that this is not true (whether it comes to either initiating a suit or defending it) is why those who lose, on either side, don't automatically pay the other sides attorney's fees, while it is possible for them to be awarded such fees. Note that a strict loser-pays system disincentivizes meritorious suits that are difficult to prove, or any cases near the boundaries of whatever the formal rules are, since there it drives up the expected cost of such suits. And, if its not an obviously-biased-to-favor-the-defense system that only has strict loser-pays for the plaintiff, it also disincentives certain meritorious defenses in favor of settling, for the same reason that it disincentives certain meritorious are tough-to-categorize suits. Again, the system we have is already the middle ground (or, at least, one of the available middle grounds) between undesirable extremes.
      - chc 13y ago
        > This assumes that "unsuccessful" is equivalent to "frivolous". You're going to have to explain this more, because I do not believe I was assuming that.
        dragonwriter 13y ago
        "Implies" might be better than "assumes"; what is actually incentivized (or, perhaps more accurately, not disincentivized) by the absence of a strict loser-pays system isn't "frivolous" lawsuits, per se, but lawsuits which it is less than certain will succeed, of which actually "frivolous" lawsuits are a small subset.
    - mtdewcmu 13y ago
      There's a wildcard element in any court case that involves a jury. But that's a cost of having an impartial jury of your peers, which is a core American value. I'm pretty sure that a lot more harm comes from worrying about being sued than actually being sued. A few years ago a small business owner was worrying himself sick because he was being sued, certain that he would lose his business. He still has his business.
- mtdewcmu 13y ago
  First of all, you give no reason why "it just has to be this way" dragonwriter said it better than me. I know just enough about law to know that it's a carefully studied problem and there are several established doctrines used in tort law. A lot of people seem to think law is made by idiots.

sliverstorm 13y ago

Patients don't deserve to be ruined, either. Agreed Risk from unfair lawsuits and misfires of civil law are something we all have to accept. Not agreed. First of all, you give no reason why "it just has to be this way". Is there no compromise, no middle-ground? Second of all, it's awfully easy for the patient to decide the doctor should bear all the risk, eh?

dragonwriter 13y ago
> Is there no compromise, no middle-ground? A civil lawsuit system with proof requirements for damages but full exposure to at least all actual damages is the middle ground (or at least one of them.) Patient bears all or disproportionate risk (as is the case with damage caps or not having a liability system at all) is an extreme, as would be doctor bears disproportionate risk (which would be the case with something less than the usual civil standard of proof, or a presumption of guilt that had to be rebutted). You can't really get "doctor bears all risk", because no matter how easy it is to punish the doctor, or how extreme the punishments are, the patient is still going to bear the risk of non-compensable injury or death from medical malpractice. > Second of all, it's awfully easy for the patient to decide the doctor should bear all the risk, eh? That's not even a possible option (much less a fair description of anything on the table), so while it might be easy for someone to decide it in the abstract, its not really relevant to the issue at hand.
- chc 13y ago
  > A civil lawsuit system with proof requirements for damages but full exposure to at least all actual damages is the middle ground It's trickier than that. Will the prosecution pay the defense's attorney fees if the doctor wins? Because otherwise you incentivize frivolous suits meant to force the defense to settle because winning is more expensive than settling.
  - dragonwriter 13y ago
    > Will the prosecution pay the defense's attorney fees if the doctor wins? Sometimes, but winning isn't enough. > Because otherwise you incentivize frivolous suits meant to force the defense to settle because winning is more expensive than settling. This assumes that "unsuccessful" is equivalent to "frivolous". The fact that this is not true (whether it comes to either initiating a suit or defending it) is why those who lose, on either side, don't automatically pay the other sides attorney's fees, while it is possible for them to be awarded such fees. Note that a strict loser-pays system disincentivizes meritorious suits that are difficult to prove, or any cases near the boundaries of whatever the formal rules are, since there it drives up the expected cost of such suits. And, if its not an obviously-biased-to-favor-the-defense system that only has strict loser-pays for the plaintiff, it also disincentives certain meritorious defenses in favor of settling, for the same reason that it disincentives certain meritorious are tough-to-categorize suits. Again, the system we have is already the middle ground (or, at least, one of the available middle grounds) between undesirable extremes.
    - chc 13y ago
      > This assumes that "unsuccessful" is equivalent to "frivolous". You're going to have to explain this more, because I do not believe I was assuming that.
      - dragonwriter 13y ago
        "Implies" might be better than "assumes"; what is actually incentivized (or, perhaps more accurately, not disincentivized) by the absence of a strict loser-pays system isn't "frivolous" lawsuits, per se, but lawsuits which it is less than certain will succeed, of which actually "frivolous" lawsuits are a small subset.
  - mtdewcmu 13y ago
    There's a wildcard element in any court case that involves a jury. But that's a cost of having an impartial jury of your peers, which is a core American value. I'm pretty sure that a lot more harm comes from worrying about being sued than actually being sued. A few years ago a small business owner was worrying himself sick because he was being sued, certain that he would lose his business. He still has his business.
mtdewcmu 13y ago
First of all, you give no reason why "it just has to be this way" dragonwriter said it better than me. I know just enough about law to know that it's a carefully studied problem and there are several established doctrines used in tort law. A lot of people seem to think law is made by idiots.