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Recompense not reward

According to this report in the UK Times (not linked as subscription required for non-UK readers), President Bush is forging ahead in his confrontation with American trial lawyers:

“President Bush opened an assault on America’s litigious culture yesterday, saying that a deepening healthcare crisis could be solved only by curbs on patient lawsuits.

Calling for caps on jury awards to patients injured by doctors, Mr Bush said that the American instinct to sue was breaking the system.

“There are too many lawsuits in America, and there are too many lawsuits filed against doctors and hospitals without merit,” he said.”

From what I understand, trial lawyers in America are only marginally more popular than the Taliban so Mr.Bush should have ample public support in his showdown with them.

Whilst putting a mandatory cap on jury awards (which is the proposal) perhaps Mr.Bush might do as well to look at the entire concept of ‘punitive damages’ which can be awarded against a Defendant in negligence claim on top of the actual compensation paid to the Plaintiff. As far as I can tell, punitive damages are a means of punishing a Defendant for the negligence and lead breathtakingly high jury awards in medical damages cases.

Genuine cases of negligence, be they medical or otherwise, should always be actionable but it is my view that the concept of punitive damages constitutes a zealous over-egging of the pudding. Negligence is not crime and should not be ‘punished’. Similarly, a Plaintiff who has suffered loss and damage should be rightfully compensated but not rewarded. Recourse to law should be a matter of both necessity and justice not a warped form of entrepreneurship for both claimants and their legal representatives.

In my view that situation in the UK preferable. Whilst it is true that the litigious culture has blossomed in this country over recent years, nonetheless damages awards are maintained at only a fraction of their US equivalents. This is because there is no recognition of ‘punitive damages’ in the UK system. The purpose of a claim here is to ‘make the Plaintiff whole’ i.e. to put the Plaintiff into the position he or she was in immediately before the negligence occurred. There is also a compensation element for pain and suffering as a result of medical or other negligent damage but these are awarded on the basis of the Plaintiff’s provable condition not as a means of penalising the Defendant.

The further advantage of the UK system is that there is no jury for civil trials (except Defamation cases) and therefore both the verdict and damages are decided upon by a Judge. This does not entirely remove the ‘sympathy’ element influential in many claims but does keep it in some sort of check as all Judges are bound by both guidelines and precedents. Judges can push at this envelope but not discard it altogether.

That said, I wish Mr.Bush the best of luck in his campaign. As a lawyer myself, I am concerned that the popular view of the legal system as a kind of ‘get-rich-quick’ lottery to be, at best, distasteful and, at worst, socially and economically damaging.

11 comments to Recompense not reward

  • Daniel

    One other advantage of the English civil litigation system is that the loser must pay for his opponent’s attorney’s fees. Many of the worst ambulance chasers here work on contingency fees, which often encourage frivolous litigation.

  • Ryan

    “From what I understand, trial lawyers in America are only marginally more popular than the Taliban so Mr.Bush should have ample public support in his showdown with them.”

    If it were cast in those terms I would agree with you but the way the Democrats/opposition to Bush here in America will almost certainly cast it is “Bush and Big Medical vs the little man” and they’ll hold it up as more evidence that Bush is a shill for the corporations. They do this every time someone proposes a cap on some kind of lawsuit, in fact, and it’s terribly annoying…..

  • Byron

    It’s also about timing. Just recently, a doctor walkout in W. Virginia and other places brought the issue of the high costs of medical malpractice insurance to the forefront of the national news.


    Additionally, Representative John Edwards (D, NC) announced he is running for the Democratic Presidential Nomination. The media is trying to turn him into another Bill Clinton – intelligent, affable, well-spoken Southerner minus Clinton’s indescretion and trailer-park upbringing. However, he made his millions as a trial lawyer, with one particular product liability suit grossing him around $6million personally. Bush’s initiative has the side effect of shining the spotlight on Edward’s potential political weakness.

  • Fred Boness

    I’ll accept a limit on damage awards when doctors agree to a humane limit on the damage they do. “First do no harm” is widely ignored.

  • Ray Bridges

    Well, I’m against sin, too, but I don’t think it is the business of the U.S. federal government to interfere in what has traditionally been an area of state government control. In California, where I live, we have enacted limitations to non-economic damages, i.e., punitive awards. Physicians here pay an average of $55,000 a year in malpractice insurance. In Florida, a state where President Bush’s brother is governor, there is no such limit and physicians pay in excess of $200,000 yearly in malpractice insurance. It is a STATE problem, not federal. More government regulation in the form of taking the side of one business or group over another, is antithecal to libertarian principles, or so it seems to me.

  • Dale Amon

    The other thing which needs to be done over there is to throw out the “deep pockets” idea entirely and require that a suit may only be placed against the party *actually responsible* for the negligence rather than the party who can afford to pay enough to make the slime\\ contingency lawyers rich.

  • Putting the defendant back in the position that they would have been in is difficult enough to implement in financial services issues.

    It forms the basis of redress for all financial services ‘missales’ under the regulator’s (Financial Services Authority) definition. The Reviews undertaken so far (pension, fsavc) have cost billions and there are elements within the FSA looking to support an endowment review.

    The principle has been abused here in a different area and the financial services industry is facing up to a new problem: moral hazard, since no customer ever expects to make a loss!

  • I’ve always thought that giving the punitary damages to the plaintiff was a stupid idea. The punitive damages are not about the plaintiff, they’re entirely about the defendant and changing the defendant’s activities. So when you have a rich organization or company that gets assessed punitive damages the amount is incredibly large compared to the average person’s income. Which then creates an unnatural benefit of winning a law suit against a large corporation (i.e. personal wealth rather than correction of wrongs).

    I’d rather see punitive damages go to some disinterested 3rd party. Charities are a good idea but that could be problematic. The government is a possibility but that might create a conflict of interest in the courts (though all in all I think that’s the best option, making punitive damages more like fines than rewards to the plaintiffs).

  • The biggest Australian State (New South Wales) has has a cap of $300,000 (about 100,000 Stg) on ALL damages awards for some time now. Insurance costs had become so high that there was little alternative.

    The second most populous State (Victoria) has a cap of $350,000

    So Caps ARE possible.

  • There certainly is room for improvement in the US and the UK systems: in the US, when a doctor screws up he/she is personally liable. In the UK, when a doctor screws up the taxpayer is liable.

  • Lyn

    I have been a civil litigation paralegal in California for almost 20 years and I wanted to point out a basic misunderstanding in this post of the nature of punitive damages. Punitive damages are not awarded for mere negligence. Here in California, for instance, one must engage in fraud, oppression or malice (defined in the Civil Code as “despicable conduct”). Thus, unless a physician commits an intentional act, such as the dentist in Florida who intentionally infected his patients with the HIV virus, punitive damages would not be allowed. The damages awarded are strictly compensatory, based on the damage done. This includes future care, loss of earnings, and pain and suffering. How does one adequately compensate someone who was rendered a quadriplegic because the Emergency Room refused to treat him for a sore neck until he was admitted in full cardiac arrest (one of our clients)? I also wanted to point out a misapprehension as to the ease with which judgments against physicians are obtained. It is extremely difficult to prevail against a physician. If there is any gouging going on it is on the part of the insurers who charge outrageous premiums to protect a physician against the remote chance he/she will be sued for malpractice. I would rather trust the justice system and a jury to render an adequate award then place a cap on damages that might shortchange a deserving plaintiff.