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Author Topic: What area of law do you want to pursue?  (Read 8848 times)

intel

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Re: What area of law do you want to pursue?
« Reply #10 on: March 03, 2009, 07:10:21 PM »
If every person who brought a medical malpractice lawsuit were to have a meritorious claim, then every such plaintiff should win their case (simple norms of compensation and corrective justice would dictate this--uncontroversial stuff). However, if that were to actually be the case, you would likely hear the AMA screaming that the system is stacked against doctors--how can it possibly be a fair system if plaintiffs win every case?

Of course, if that weren't the case, if the plaintiffs didn't win every case, according to the premises set out above, that would mean some people, injured by medical malpractice, wouldn't be appropriately compensated--and we can all agree that that's bad, strictly on fairness and corrective justice grounds, as mentioned above.

Ergo, it seems actually not so bad that there are non-meritorious claims being brought to trial, so long as tort law is relatively good at weeding those out from the meritorious ones (which it does seem to be: http://content.nejm.org/cgi/content/full/354/19/2024). In that case, non-meritorious claims are not rewarded, because a full airing of the facts finds that they should not be compensated; meritorious claims ARE rewarded; and the system looks fair because it has winners and losers on both sides.

Therefore, "loose lawsuits based on nothing" are not only a definitionally-necessary aspect of, well, our entire legal system, but also normatively important to maintain legitimacy.

As a more philosophical matter, you're sort of begging the question (in the strict sense, not the loosey-goosey sense of "raising the question"), by calling these "loose lawsuits based on nothing"--the trial and/or the legal system is what is charged with determining whether they are meritorious or not, know what I mean? You can't deny someone the chance to get their claim heard and ruled on by ruling on it in advance and finding it lacking--that's precisely what the court/jury are supposed to do at the thing you're saying they shouldn't be allowed to have.

Also, just as a note: the percentage of actual victims of medical malpractice (as determined by an independent panel at a later time) who do go ahead and file lawsuits is shockingly low--something like 12% (http://www.iii.org/media/hottopics/insurance/medicalmal/). Given that statistic, I think it's ridiculously unfair to paint medical malpractice victims (and their attorneys) as uniformly greedy, stupid, and grasping, which I think is too often the portrait. Admittedly, there are cases that aren't meritorious, but I tend to think that A) very few of those claims are brought in bad faith, as a percentage of the whole; and B) the tort law system does seem to do a good job of weeding those out--which is precisely what we say we designed it to do: weed out the undeserving and compensate the deserving.

your premise which i'll paraphrase as "if all medmal claims resulted in a finding for plaintiffs, the validity of actually meritorious medmal claims would be undercut" is suspect. i think this can be shown by analogy: over 95% of certain criminal offenses that go to trial result in convictions, and there is no uproar about the conviction rate our criminal justice system metes out for those crimes. in other words, the government (medmal plaintiffs in my analogy) always win, and few think there is over-enforcement of these crimes (i'm thinking PPWs, simple possession, etc).

could be that i am missing something, but i wanted to add my input because i found your argument interesting yet ultimately unpersuasive.

dashrashi

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Re: What area of law do you want to pursue?
« Reply #11 on: March 03, 2009, 07:43:20 PM »
I think you are missing something:
1) criminal law exceptionalism, which makes the two situations superficially analogous but ultimately not comparable (due to, e.g., far greater inequities as btw prosecutor and defendant in the criminal context, though inequities in malpractice cases are not insignificant, plus moral/ethical/penal dimension of criminal law);

2) the fact, related to the above, that lay people see criminal law as different, because it punishes criminals, and "criminals" who do "beat the system" usually only do so "on a technicality"--not the same psychological frame as tort law, for instance (when it's not being vilified by "tort reformers"), which is more seen as a truth-seeking and compromise-inducing forum, like civil and private law more generally;

and 3) and most importantly, criminal defendants don't have an AMA (although us bleeding-heart PD types do try--but we often have our hands full defending ourselves, let alone the clients, to the public at large). If they did, you can bet that group would be screaming about how clearly the system is screwed up, if this is the conviction rate, what, the police and prosecutors never make mistakes, so on and so forth. Defendants don't, though, and they are generally unsympathetic to the public at large, which is why there is no public outcry on their behalf due to the overwhelming conviction rate. I think if they were more powerful as a class, there would be a group cogitating in favor of public outcry, and public outcry would in fact exist--the reasons, to my taste at least, are solid. What, prosecutors really never do make mistakes? Or perhaps they are able to induce huge numbers of plea bargains (the majority of those "convictions") because defendants and their attorneys are so resource-strapped that it's easier to just take the deal than it is to try and fight your way out from the resource divide only to have to argue your case in front of a jury that's disinclined to see you in any kind of empathetic way? For instance.
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thegourmetpig

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Re: What area of law do you want to pursue?
« Reply #12 on: March 03, 2009, 08:16:28 PM »
If every person who brought a medical malpractice lawsuit were to have a meritorious claim, then every such plaintiff should win their case (simple norms of compensation and corrective justice would dictate this--uncontroversial stuff). However, if that were to actually be the case, you would likely hear the AMA screaming that the system is stacked against doctors--how can it possibly be a fair system if plaintiffs win every case?

Of course, if that weren't the case, if the plaintiffs didn't win every case, according to the premises set out above, that would mean some people, injured by medical malpractice, wouldn't be appropriately compensated--and we can all agree that that's bad, strictly on fairness and corrective justice grounds, as mentioned above.

Ergo, it seems actually not so bad that there are non-meritorious claims being brought to trial, so long as tort law is relatively good at weeding those out from the meritorious ones (which it does seem to be: http://content.nejm.org/cgi/content/full/354/19/2024). In that case, non-meritorious claims are not rewarded, because a full airing of the facts finds that they should not be compensated; meritorious claims ARE rewarded; and the system looks fair because it has winners and losers on both sides.

Therefore, "loose lawsuits based on nothing" are not only a definitionally-necessary aspect of, well, our entire legal system, but also normatively important to maintain legitimacy.

As a more philosophical matter, you're sort of begging the question (in the strict sense, not the loosey-goosey sense of "raising the question"), by calling these "loose lawsuits based on nothing"--the trial and/or the legal system is what is charged with determining whether they are meritorious or not, know what I mean? You can't deny someone the chance to get their claim heard and ruled on by ruling on it in advance and finding it lacking--that's precisely what the court/jury are supposed to do at the thing you're saying they shouldn't be allowed to have.

Also, just as a note: the percentage of actual victims of medical malpractice (as determined by an independent panel at a later time) who do go ahead and file lawsuits is shockingly low--something like 12% (http://www.iii.org/media/hottopics/insurance/medicalmal/). Given that statistic, I think it's ridiculously unfair to paint medical malpractice victims (and their attorneys) as uniformly greedy, stupid, and grasping, which I think is too often the portrait. Admittedly, there are cases that aren't meritorious, but I tend to think that A) very few of those claims are brought in bad faith, as a percentage of the whole; and B) the tort law system does seem to do a good job of weeding those out--which is precisely what we say we designed it to do: weed out the undeserving and compensate the deserving.

I don't disagree with the logic of your argument, but I think you underestimate how torts affect the level of care and the decisions made my doctors, as well as the costs to the health care system (most specifically through malpractice insurance). With constant fear of malpractice suits, doctors will tend to 'err on the side of (legal) caution' instead of sometimes taking risks that may save patients' lives. Of course, this leads to doctors not acting on their knowledge but from the point of view of the risk of a lawsuit. You're right that the system SHOULD weed out frivolous suits, but it doesn't always, and the fear of that in doctors (whether well-founded or not) is enough to prevent excellent standards of care. Lawsuits can also hinder pro bono work, and recent suits on preventative care advice by doctors is even affecting care that low on the medical 'food chain.'

Now, torts account for only 1% of health care costs, monetarily speaking. However, the presence of malpractice suits can create huge additional costs aside from the obvious legal fees. For example, malpractice insurance costs get directly passed on to patients and affect how much their health care costs.

And while you're theoretically right that the legal system should weed out bad suits, you seem to take a very rosy view of how our legal system works. In many of these cases, 'experts' battle each other for a monopoly on truth. Judges make decisions without the appropriate scientific knowledge, and rhetoric has the power to affect the juries in such cases.

I'm not suggesting we get rid of malpractice suits, but maybe that we figure out a way to not have them be such a burden on the health care system.
Michigan '12

dashrashi

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Re: What area of law do you want to pursue?
« Reply #13 on: March 03, 2009, 09:26:33 PM »
Did you click the link? It's about whether frivolous lawsuits succeed. They...don't. That was the big finding. And it was disputed, so this study was a big deal. It accounts for all the bull that goes on in the courtroom, and different battles over "truth" by just looking at money and who gets it, and then taking an independent look at whether there was doctor error--and it's other doctors who are taking that look. If we still see the legal system weeding out even doctor-defined frivolous cases (so in theory, there would be even more meritorious cases within that category, if other doctors are biased to not see doctor-error), despite all this background noise, it's probably doing a pretty good job overall. If you use a crude proxy, and you still see the effect you hypothesized, it's not a good counterargument to be like, "Your model isn't precise enough!" There's no reason more precision in the model would make the effect go in the other direction.

I understand, very well, that doctors are afraid of lawsuits. That's because people generally are afraid of paying for things that they don't want to pay for. Unfortunately for them, the whole point of malpractice law is to reimburse patients who have been harmed by doctors' errors. We came to a conclusion as a country that patients shouldn't bear the costs of doctor errors. They don't get punitive damages, there shouldn't be a stigma--the tort system is just aiming to return them to the status quo ex ante. Nevertheless, from the perspective of the doctor, they see it as a patient blaming them, regardless of what's actually going on, and they perceive a stigma. I'm sympathetic to that, up to a point--I know many more doctors than I do tort lawyers, and I am sympathetic to the things they go through. But after that point, it's like, no, it's grown-up time, where we take responsibility even for the good-faith mistakes we made, and that means reimbursing the people that those mistakes harmed. Take the risks! Do what you would do! Tort doctrine (which you pay, via your dues to the AMA, to influence) should only hold you responsible when you make a negligent error, because everyone agrees the innocent patient shouldn't have to bear those costs. So try not to make mistakes! Which hopefully you try not to do anyway! And if you make a mistake, it's not like you're a horrible person who did a horrible thing--you just have to reimburse the patient (or your insurance co. does) because we don't think it's right, as a general rule, for the patient to bear the costs of the mistake you made. No biggie.

If doctors want to insure against malpractice suits, that's their prerogative. But make no mistake: the skyrocketing rates of those insurance prices has nothing to do with the number or size of malpractice claims--the increase comes from internal forces within the market and the insurance industry, and the correlation is not with the size or frequency or success of malpractice suits.

I'm not sure how, if you believe in corrective justice for medical malpractice, you can disagree with anything in these first two paragraphs. And if you do, then I don't see how you can say that it's in any way an undue burden on the healthcare system. A burden, sure. We've all got burdens. But an undue burden? I don't think so. This goes back to the 12% point from earlier--can you only imagine what would happen if we even approached, say, 30%? Reimbursing only three tenths of the victims of medical malpractice, when our goal of corr.justice is to reimburse all of them, would more than double the number of successful malpractice claims currently being brought. I don't think, given those numbers, that our current tort system is an undue burden on doctors at all.
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danmcd

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Re: What area of law do you want to pursue?
« Reply #14 on: March 03, 2009, 10:00:35 PM »

So don't be shy, let us know, what kind of law do you want to pursue, and why???


I like the flexibility law offers...my priorities may very well change, but right now I'm thinking civil rights/family law and relevant areas of public international law. I can also see myself bein really happy in more private sector-type work like international trade and international arbitration. I also like the idea of being able to move through a couple areas of law as you gain experience professionally (within reason..).

I know it's not technically "law", but I love the idea of judicial reform in the developing world...what is it, legal consulting?


SweetAsCandy

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Re: What area of law do you want to pursue?
« Reply #15 on: March 04, 2009, 07:22:22 PM »
I'm interested in family law.  :D
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SamE397

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Re: What area of law do you want to pursue?
« Reply #16 on: March 04, 2009, 07:51:13 PM »
I can't say that I know a lot about medical malpractice but that said it only seems rational that there are without a doubt both good doctors who through no fault of their own have malpractice suits brought on them and patients who suffer from malpractice silently. Both need representation and I see no moral problem with representing either.

Unfortunately, there are also doctors who fall into the category of 'careless' or maybe even 'ignorant' and patients who have frivolous claims. However, with in almost any legal field you have to accept that there are some people you may have to represent that are not shall we say morally upstanding. 


To try and pull this board back on topic, I don't know what kind of law I want to pursue specifically but eventually I want to have a solo practice maybe working 30-40 hours a week while teaching business law or political science at an undergrad level. So, I could see myself 10-15 years out doing a lot of family law and work relating to small business contracts but who know for sure. Right now, I'm primarily focused on learning about different areas of the law and trying to develop the skills that will hopefully make me a successful lawyer no matter what I do.   

dashrashi

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Re: What area of law do you want to pursue?
« Reply #17 on: March 04, 2009, 08:03:43 PM »
I agree with you completely about medical malpractice suits.
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Miss P

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Re: What area of law do you want to pursue?
« Reply #18 on: March 04, 2009, 08:04:51 PM »
I'm jealous of the courtroom time you'll be getting, is all.

 ::)

Myself, I actually do plan to be a public defender.
That's cool how you referenced a case.

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dashrashi

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Re: What area of law do you want to pursue?
« Reply #19 on: March 04, 2009, 09:00:43 PM »
I'm jealous of the courtroom time you'll be getting, is all.

 ::)

Myself, I actually do plan to be a public defender.

Stop making fun of me!
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