Jim,

Thank you for reading and taking time to comment. I'll try to address your questions:

(1) 200,000 dead. I didn't make up this number, I simply reported it. 200,000 dead from medical malpractice was reported in Scientific American (linked above my original post) based on a investigation performed by the Hearst media corporation (linked in the Scientific American report), which can be found here ( LINK ). You can fact-check their basis yourself. To borrow a motto most are familiar with: I report. You decide.

Your comment on this issue raises another question: What if the Scientific American incorrect and the actual number is 96,000 people dying each year from preventable medical mistakes instead of 200,000? 96,000 is 32 times the number of innocent Americans killed on 9/11 and is more than 1.5 times the number of Americans killed in the Vietnam War. Is the 96,000 number acceptable? (At the risk of a misunderstanding, let me be clear: I do not intend to compare negligent doctors to terrorists, communists, etc. I simply use these numbers as familiar reference points.)

What about 50,000 people dying each year?

What about 10,000 dying?

What number of innocent people dying from preventable medical negligence is an acceptable number?

(2) Litigious Society. I suppose this cuts to the core of my post. I do not believe we live in an overly litigious society. This is particularly true in the area medical negligence and malpractice. The simple fact is that most victims of medical negligence do not sue their doctor.

(3) Value of Life. I think that you and I would agree that the value of a wrongful death claim is not "one size fits all". Why then are so many in support of arbitrary caps on damages? Why do we limit (or even eliminate) non-economic damages just because they may be difficult to calculate? Is the value of who we are and the relationships we build limited only to the value of the job we do? If so, that's a pretty sad statement on life.

(4) Potential Reforms. I do not want to see further "reforms". There are a number of mechanisms in place already to weed out frivolous and unsupported claims. All judges in every state can dismiss a meritless case at any time. Most states already require a pre-filing review and affidavit of merit for med mal cases. Most states already provide for a form of loser-pays (for example, in Missouri, if a defendant formalizes a settlement offer as an "Offer of Judgment" and the plaintiff refuses and is awarded less at trial, the plaintiff is responsible for the defendant's costs).

Perhaps the most significant "gatekeeper" against frivolous cases is the contingent fee itself. If a very wealthy client pays by the hour, he can spend his or her own money to pursue baseless and frivolous claims (or defenses for that matter) until the well runs dry.

Injury and negligence victims are rarely (if ever) in that position. A contingent fee arrangement requires the plaintiff's attorney to finance the case with his or her own money. If the plaintiff loses not only does the lawyer not get paid (earn a fee), but he does not get reimbursed for the expenses of the litigation either.

A typical medical malpractice claim may require an attorney to invest more than $100,000 of his own money just to get the case to trial. Do you really think any attorney would make a six-figure investment into a case he did not believe in or thought was frivolous?

Thank you again for reading and taking the time to comment. I encourage thoughtful and courteous debate.

Jim,

Again, thank you for your thoughtful, respectful and sincere debate.

I understand and acknowledge that you can point to some outlandish cases that have been filed and even some that have made it to trial. There are bad apples in my profession just as there are bad apples in your profession (and all professions for that matter). The folks at ATRA do a very good job at keeping those publicized. Every profession has outliers and, as a profession, we strive to eliminate those kinds of suits while protecting the rights of actual victims to their day in court.

However, the dry cleaning suit actually supports my comment about contingency fees. No reputable lawyer would take that case or invest money in that case and the lawyer who brought it was forced to represent himself (obviously, having a fool for a client as the old saying goes).

I liken the situation to our criminal law philosophy. It is better than 100 guilty men go free than to have a single innocent man imprisoned. It is better that all of our liberties and constitutional rights remain guarded and free rather than have them restricted (or even taken away) because of the outlandish behavior of a few bad apples.

Finally, I don't believe awards for non-economic damages are arbitrary at all. I have had hundreds of clients. Some were widowed or orphaned. Some were paralyzed. Some were burned beyond recognition. Each of them had very real damages for pain, suffering, disfigurement, lost enjoyment of life, etc. Each presented evidence of their loss to the jury. Each jury performed a calculation to measure that loss.

Just because a calculation or is non-formulaic does not make it arbitrary. A jury, having had the benefit of hearing and seeing the evidence, is charged with making a calculation. This is not arbitrary. A legislature, having seen none of the evidence, decides what my client's injuries are worth by essentially pulling a number out of hat. That is arbitrary.

Again, thank you for reading and for your thoughtful debate.