Remember that tort reform post I kept promising?

Here it is. This post -- by a lady I rather respect -- set it off.

Before you read any farther, please check out the post to which I am referring. It's not fair to her to rely merely on my excerpts for rebuttal. She has good points, worth answering; this post will be here when you get back.

Ms. Smith writes:

As usual, the trial lawyer association argues that caps for noneconomic damages only penalize the injured. (Funny, they never mention how caps also penalize trial lawyers.) This idea that an award of millions of dollars somehow compensates for injury deserves to be challenged.

I am officially saying it: Caps on noneconomic damages do penalize trial lawyers. Fair enough. But before we continue down this vane (and, no pun, vein), let me explain how most medical malpractice suits work:

You get someone in your office who's injured. They think it's the doctor's fault. You have to talk to them, get copies of their medical records (this starts to add up -- but more on that in a second), and generally have a feel for the compensability of injuries, before you can decide whether or not to take the case. Put simply, medical malpractice cases aren't worth it unless they're, well, worth it.

Ah ha! The Evil Trial Lawyer admits that the members of the ATLA are in it for the money!

Not quite. Let me continue, and you'll see why.

Assume that the case is worth it -- by "worth it," I mean that the verdict, if things break correctly (by which I mean, the jury verdict is large enough to cover all damages) exceeds $50,000 for small cases, and $150,000 for larger cases. More on those numbers in a second. The lawyer must then -- as almost all of these are done on a contingency basis (if we win, we collect a percentage of the award, and costs; we lose, we get nothing) because the plaintiffs are poor (more on that below) -- shell out the following costs, at minimum:

Acquire medical records. $100-1,000.
Retain a physician as expert witness: $3,000.
Filing fees: $25-$100
Service on one to twenty defendants (doctor plus any other entities liable): $15-$1,000
Cost of deposing defendant(s): $4,000 to $45,000 (depends on court reporters, states, travel expense, number of depositions required, and way too many other factors to label easily here)
Cost of deposing opponent's expert(s): $6000 to $75,000 (these folks -- cough, doctors -- charge dearly for their time, and the side taking the deposition must pay; also, in one case of which I know, deposition costs exceeded $150,000, but that was an unusual case by any measure)
Travel costs: $20 to $2,000 (varies with case, locus of injury, etc.)
Printing costs (for all those pesky motions): $150 at least
Expert preparation for trial/ expert(s)' trial cost: $3,500 to $40,000 (a case we finished up a while ago had expert costs in excess of $60K, but that was (another) unusual case)
Lost time from paying cases (admittedly, something of a double cost, and a theoretical): unknown, but something along the lines of $10,000 to $800,000 (multiply $125/hr by, say, one thousand hours over six years, including appeals, cross appeals, and various disruptive and set aside motions; then keep in mind that few medical malpractice cases are handled by a single lawyer -- this is a fair estimate)
Postage: Adds up, let's say $300 over three years (that's on the low end, trust me)
Copying costs: $1,000 (Requests for production, etc. -- also adds up way too quickly)

None of this includes the enormous number of man-hours that go into such a case. The average lawyer bills around $125 per hour or so (some more, some less) when we're getting paid; we're doing this essentially for free until the verdict comes in. Looking through some of my notes, I spent one hundred hours over the course of three months doing preliminary research on a case involving neural damage, spinal injury, and stroke. And that's not the record. (We didn't take that case, so that was time down the drain.)

It costs a lot to bring a case to trial.

All of this is fine, you say, but it ignores Ms. Smith's basic point: Who cares/ it's just trial lawyer expenses/ y'all get rich off of this.

Actually, it goes right to the point. We can't bring a case like this unless it looks like the doctor's really liable, which is to say, he did something so far outside the standard of care -- screwed up so far beyond what a normal doctor would do -- that a jury will see it and attribute the fault to him; unless the plaintiff is badly harmed (the shorthand is "permanent, crippling disability"); and unless it looks like there will be a lot of money in it. Put more succinctly: It costs a great deal of money to go after the doctors who screw up badly, and badly hurt their patients. If you do not believe that there should be some justice in such a case -- or, in a less loaded way, that someone should pay -- then you doubtless could care less. But, without stepping on the soapbox, there are a lot of doctors who do a lot of bad things. Most don't. I'm rather fond of my doctor, and my kid's doctor, and my wife's doctor. They're dedicated, intelligent people, and I have no doubt that -- assuming they make mistakes -- they do so in the way that reasonable doctors do, i.e., they are not negligent. Indeed, I'm willing to bet that most doctors are not negligent over the course of their lives. They may make mistakes, but negligence is a different monster altogether. I'm willing to concede that even those few who are negligent are rarely negligent to the extent of grievously harming their patients.

But.

There are doctors who screw up badly, and sometimes often. Ignoring this doesn't make it go away. And people get hurt, or, yes, killed. We just got a case with one of those.

And it costs money to bring them to heel. Sure, lawyers make money off of this; that's why we do it, in part. (Remember, capitalism is usually good -- related note: Why is it ok to glory in the free market for everyone but lawyers?) (It's not as much as you might think.) But we can't bring those doctors -- who have lawyers one way or another, usually from larger firms -- to justice without the money to fund those operations. That's part of why we seek out the big cases -- so we can afford to do it, and because the jury will usually (correctly, in my mind) only reward those who are badly hurt -- and that, in turn, is why you hear so much about giant awards in the news.

And all of this ignores the costs we have to go through for cases we reject, or lose. That's not a small amount of money, in real terms, or opportunity costs.

Which leads to my second point. Ms. Smith uses an example of one of her patients to argue that money can't buy you relief from pain and suffering. True as charged. But how else do you make them whole? You can't undo the pain, and quite frequently, you can't even manage it out of existence.* The law is, in a lot of ways, a pretty imperfect tool. It has two ways to make people right: Money and equity. Money is obvious in its implications and limitations. Equity basically seeks to force people to act in such a way as to make everyone whole, as fairness dictates. If we could get those badly hurting -- or dead -- people fixed through injunctions, I assure you, we'd do so, and the money be damned. But then again, that implies that we could get doctors, or someone, to fix that condition under court order; and for reasons ranging from impossibility (I know I can't raise the dead) to the Thirteenth Amendment (we don't like to force people to perform labor, for some reason), this isn't practical.

That leaves money. I'm sorry. It's the nature of the system. We have no other way to compensate those people for the pain, and loss, they experience.** If anyone -- and I'm not just tagging on MedPundit here -- can think of an alternative, I'm not kidding, I'm interested. Pop over to Tell me your thoughts on the left and let me know.

It's poor compense, but it's all we've got.

Ms. Smith's other point is this:

Putting caps on non-economic damages would not change any of this, of course. My patient would be equally bitter and dysfunctional no matter what the justice system did. And that's precisely my point - large monetary awards do not alleviate pain and suffering. They do, however, drive malpractice insurance companies - and doctors - out of business.

Here's the carrot. I'll be the first to admit that pain does not vanish with loads of money. (But see above on why it's the next best thing.) AND I'll admit that the malpractice practice is hurting the medical industry. And I'll admit that I have no damned idea how to solve the problem, because doing it Ms. Smith's way -- capping left and right -- is only gonna leave a lot of badly hurt people without enough to get by on, and keeping the status quo is gonna leave us sans médecins fairly soon. And I'm not smart enough to see the way around it.

But I will tell you this. Cap punitives if you want -- as long as you put in an automatic escalator, so the capped value still hurts in twenty years -- but cap pain and suffering, or even (as some argue) ordinary damages, and economic damages -- and understand the consequences: You'll leave folks who are badly wounded without any recourse, and a lot worse off than they were before that doctor touched them. And there, I'll fight you.

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* Ms. Smith is conflating economic and non-economic damages. The award her patient apparently got was in part to handle future medical expenses (assisted living, custom housing) -- an economic damage.

** I should also add that for some reason (truly) lost on me, the poor get the crud end of the stick more often than middle class and rich folks do. I don't think it's because most doctors don't like Medicaid patients, or are wantonly sloppier in those cases. But for some reason, the vast bulk of med mal clientele is made up of the poor. They have no way to fix themselves, save those non-economic damages.

UPDATE: MedPundit graciously posts my response, then offers some closing thoughts. Obviously, I can't speak for all of the lawyers out there, especially the huge plaintiff's firms; nonetheless, the costs, real and opportunity, I laid out are pretty much dead-on.