Brock Higham recently won a $5.1 million jury award from his lawsuit against East Idaho Regional Medical Center (EIRMC). Debate raged about the lawsuit merits, whether there was any proof of EIRMC negligence, and if EIRMC employees destroyed documentation of their negligence.
However, the real story is that Higham will only be able to collect $600,000 of his five million dollar award. If he filed that same lawsuit today and won that amount, he would only be able to collect $250,000!
The reason is that our unwise lawmakers, those perennial followers of right-wing talk radio weekly bandwagons, enacted caps on jury award amounts as part of 2003 tort reform.
The Idaho legislators cited “runaway juries” and their disbelief in awarding money to compensate for “potential lost earnings” as the reasons for tort reform.
The “runaway juries” excuse is an interesting one. On one hand, we hear legislators going on about trusting the people’s will in elections, the people will know what to do, you can count on the people.
However, when citizens step out of the voting booth and into the jury box, legislators fear the people’s judgment. They say Idaho citizens cannot be trusted to be smart enough or logical enough to determine financial awards on their own.
What happened to trusting normal Idaho citizens to do the right thing? Why don’t our leaders trust us?
The Post Register pointed out that it cost Higham’s lawyers $180,000 on his case. Collecting a third of Higham’s award grosses them $200,000, before taxes, etc. It looks like the lawyers made out okay on that one, but what if they faced the same lawsuit today and the prospect of only making a third of $250,000 (about $83,000)?
I’m not saying “poor lawyers don’t make enough money”, but nobody can make the case that lawyers should donate all of their time. If a lawyer forecasts $150,000 in trial expenses and can only expect an $83,000 return on their professional investment, how many of these cases will lawyers take on?
Contingency fee payment arrangements are one of the few ways that most Americans have realistically equal access to justice in America. Capping tort awards cuts legal access off at the knees for most Idahoans, and therefore restricts justice from most Idahoans. Restricting legal justice to the top 10% of Idahoans who can afford justice signals class warfare waged by the richest Idahoans.
Why do our legislators want to restrict equal justice from most Idahoans?
Idaho tort reform will eventually be seen simply as class warfare, lack of respect towards Idaho citizens, and suppression of justice. What will it take to repeal Idaho’s tort reform?
What do you think?
Popularity: 11%
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Gato got runned over by Marcus many moons ago. Be ye daft, 2486? 
Let's have a new poll, alright, Joe?
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{ 25 comments… read them below or add one }
We can thank our Idaho Congressman Mike Simpson for helping to pass this law in Idaho. I can understand that it needs to be in place for frivolous lawsuits, and I’m all for that! Such as the case of the Judge trying to sue the dry cleaners for 54 millon dollars for losing his pants! An administrative law JUDGE no less! Like I said, I’m all for having this law in effect for instances such as this. But in Brock Higmans case, its a travesty and a slap in the face to this man and his family! Sure none us know for sure whether or not Brock would have amassed 5 million dollars in his lifetime, but nobody can prove otherwise either. The fact of the matter is, he no longer has that oppurtunity. His life has been drastically changed and now is severely limited because of the outcome of his surgery. He deserves the 5.1 million dollars that was awarded to him and I for one believe he’s getting robbed by only being able to collect 600 thousand of that.
I know some of you think 5.1mil is a little excessive, however, if this was YOUR brother or son or relative, I can assure you you’d feel differently about the amount he’s due.
(but thats just my opninion)
If what happened to Brock Higham happened to Congressman Mike Simpson’s son, who believes Mike Simpson would have said “$250,000 is about all my son’s adult life was worth anyways, that’s enough for us.”
guys, guys, you need to look at the tort “reform”; the only thing “capped” is noneconomic damages (ie, pain and suffering); all the economic (receiptable, like medical bills, lost wages, future lost wages, etc.) and punitive and other damages are still viable forms of damages….
I think tort reform is a wonderful thing!!!
So did the PR misreport this or did I misunderstand this or do you misunderstand this?
I understood the PR as saying the cap involved his award for future lost wages.
Babs is saying that future lost wages is not capped.
Which is correct?
The problem is not runaway juries. Its knee jerk reactions and incomplete stories such as CR67 related in the first post. He brought up the $54 million lost pants lawsuit as a justification for tort reform. He neglected to mention that the case was thrown out due to lack of merit. There is no need for tort reform, the CURRENT judicial system handled it just fine.
All tort reform does is screw the people who really need help. Like people who go to a hospital to have a foot amputated and the doctors cut off the wrong one. Or for the family members who lose a loved one at a hospital due to a preventable mistake.
It takes HUGE verdicts against mega corporations to make an impact. A big company will write off a $50,000 verdict as nothing. A $5,000,000 verdict will get their attention and maybe they’ll change. Or look at this way. If speeding tickets were only $5 as they used to be in Montana do you really care if you get one? Now how about if they are $100. Now you have incentive to obey the speed limit.
What industries were mostly affected by large tort awards?
I imagine health care and product-manufacturing industries were most affected by large tort awards.
Which industries contribute to politicians’ campaign coffers the most?
Probably the same ones that are most affected by large tort awards, health care and product manufacturing.
Michael Moore’s ‘Sicko’ is releasing tomorrow in theaters I believe, though it has been available on bit torrent for a few weeks now.
I’ve watched about half of it, and he presents some very logical connections between health care industry campaign contributions and legislators backing laws that protect the health care industry.
Perhaps Idaho’s health care and product-manufacturing industries bought our Idaho lawmakers?
Where can we find the campaign contributions for our local legislators, and see if there are correlations?
Yeah the judge dismissed the case, but it STILL went to court! It shouldn’t have been allowed to go that far! And the judge that filed this suit should be disbarred! IMO
Perhaps the Idaho Secretary of State Office has the state lawmakers campaign finance reports. (They might even be on-line…google the office and get a contact #) I suspect at the Federal Level it would be the Federal Campaign Commission. I am sure if you called a local congressional office they can get you the info.
I don’t think the $54 million missing pants lawsuit is related to the tort award caps.
Perhaps more work should be done on the front end of lawsuits instead of the end?
The pants lawsuit never got that far, the judge threw it out because the defendant couldn’t even prove the pants were missing.
It seems tort award caps is an example of misapplied logic.
Such as if they were concerned about Brock Higham’s case, maybe there should be tighter rules on what can be admitted as evidence?
There was a question of EIRMC being accused of destroying evidence. As I understand it, nobody saw evidence being destroyed. Were they suggesting there was a paperwork accounting system (like numbered tickets) that showed discrepancies that pointed to evidence destruction?
In any case, the defense apparently relied heavily on this “destroyed evidence” strategy to win their lawsuit.
But instead of structuring the front end of lawsuits, in as much as what evidence will be allowed and what testimony can be heard, our lawmakers took the road of structuring the back end of lawsuits, regardless of what evidence or testimony was presented, to cap the lawsuit award amounts.
That is what seems like misapplied logic. Our lawmakers took the road of unfairly aborting justice when they had the opportunity to address their concerns with the front end of lawsuits.
And there is the discrepancy between trusting citizens in the voting booth vs. trusting citizens in the jury room.
What’s ironic is Higham is a very right wing Republican. Don’t believe me? I’ve got emails from him, harassing ones, that I turned into the Pocatello police because he was harassing me.
Cable One also has emails because he was using his Cable One account to create several email addresses to bypass the blocks I set up. He even tried to add me onto his MSN Messenger. This Brock is crazy and needs psychological help. He was even kicked off of a LDS website (ldslinkup.com) twice!
Joe, you are right about the 54 million dollar pants lawsuit; has nothing to do with tort reform and everything to do with grandstanding egomaniacal lawyers (and before someone blasts me, I am a lawyer…)
But here is the language of the house bill that turned tort reform into law in Idaho in 2003:
The bill also lowers the limits on non-economic damages to $250,000 from the current $400,000.
In any action seeking punitive damages, HB 92 requires the plaintiff to prove by clear and convincing evidence that the defendant engaged in oppressive, fraudulent, malicious or outrageous conduct. The current burden of proof is by a preponderance of the evidence.
The bill also caps punitive damages at the greater of $250,000 or three times compensatory damages and limits appeal bonds in cases where there has been an award of punitive damages. The appeal bond will be waived as to that portion of the punitive damages that exceed $1 million if the defendant seeks a stay of enforcement of the judgment during the appeal.
So, again, this doesn’t affect lost wages or any future earnings or medical care issues (any “special” or receiptable damages); those “damages” remain intact, as long as they are properly documented…….punitives are still allowable but within certain parameters. It is only the nebulous “pain and suffering” that is limited to 250,000 (still a LOT of money…think about it)…Again, I think tort reform is a great idea; when people sue doctors and other well-insured individuals, they are not seeking “justice”; they are seeking all the dollar signs that malpractice coverage will provide. They will be adequately compensated for any true “loss”, even with the caps associated with tort reform.
One final point: you said, Joe, that the tort reform legislation caps “lawsuit award amounts”. remember, in the hypothetical about the wrong leg being cut off, all elements of damage are still allowable: the medical bills, future medical bills, lost wages, counselling, future medical care; future home care; future lost wages, loss of consortium, etc….all still considered. The only element of damage that is “limited” is the amorphous “pain and suffering”. If everything else, properly documented as a loss, present or future, is allowable as an item of damages, should the p&s or “general” damages really ever be more than 250,000? Won’t 3x compensatory damages or specific damages do the trick for punitives?
BTW,
“contingent fee” cases are not as heart-felt as they sound; what happens is that the lawyer takes the case promising to take only 1/3 or some other typical amount, depending on how far down the road the case goes….yet the “plaintiff” is oftentimes unaware that he/she will be paying all the costs (everything except the lawyer’s fees…so we’re talking experts, copies, filing fees, depositions, preparation of exhibits, witness fees…etc..)!!! the classic “contingent fee” arrangement does not mean the lawyer eats his/her costs, which, in a trial situation, can be huge. Those are passed along to the client, and often must be paid off on a monthly basis, or else the lawyer takes them out of the settlement.
Moreover, I haven’t read the PR article because I don’t have access to the PR site….if you could share a copy, I would love to read it.
Thanks!
Glad I didn’t see this before now. I’m sure my comments won’t be popular as some realities of lack of tort reform haven’t been addressed here.
Yes, the underground will be active with comments of those who have medical and nursing training, but not here, given how Joe wrote the article. Nonetheless, I’ll introduce some unpopular topics and ask you to think about them.
I’m glad there is tort reform in Idaho. I don’t want another WY. Do yourselves a favor and read about the massive exodus of physicians from WY given the fact malpractice cases weren’t capped.
Physicians couldn’t afford to keep their offices open, due to malpractice costs, and left or changed their practices greatly.
Then there is Clark Co. NV, (Las Vegas) which had few to no tort reforms about 3 years ago. The OBs were frequent targets of malpractice lawsuits as everyone wants a perfect baby. The reality is many things can and do go wrong during a pregnancy, which have nothing to do with the physician. Do you think Down’s Syndrome, for example, is due to improper OB care?
Within a period of about 8 months, all but 9 OB/GYNS severally restricted their practices, moved or refused to accept new OB patients. I remember the story a woman wrote for a national magazine stating how she had tried to take good care of herself, had good health insurance, but had been forced to change OBs 3 times to date (and was looking for #4), given how many OBs stopped delivering or moved.
Consequently, more Family Practice and Nurse Practitioners, and out-of-state doctors (like the ones in St. George, UT who were on-call) started delivering babies who would have been delivered by the Las Vegas OB/GYN’s who use to practice in Clark County.
It has always amazed me that an FP, who has months of experience in OB training during residency, rarely get sued compared to OBs who have 3-4 years of residency experience in Obstetrics.
I’m also amazed how NPs and Midwifes rarely are sued. Something seems odd to me that the physicians with the most training to ensure the safest pregnancy and delivery are the ones sued the most compared to those with less training.
I also find it interesting that often those who have very little contact with sub-specialitists and complicated illnesses or injuries are the most vocal about tort reform and malpractice. Yet, it appears those who really don’t understand how they are hurting themselves and others, without exploring the entire set of facts, have no problems smashing tort reform.
You honestly think a state like Idaho who can’t attract enough physicians/capita is going to benefit from higher awards in malpractice cases?
No offense to all NPs and PAs who practice in the area or read this (as I actually think you’ll understand my point about the level of care and responsibility required more tha many other readers).
Do you as consumers want your family members and/ or friends who experience brain injuries, blunt force trauma injuries or illnesses where someone is bleeding out and emergency surgery can’t occur locally, given that the surgeons can’t afford the malpractice? So the patient must wait hours being managed by NPs and PAs, who may not have the training to manage those injuries or illnesses until they either die or can be transported to Salt Lake City to a hospital that must accept them? Do you really want to take those steps backward in local healthcare?
Newsweek, this week, has a very insightful article about the realities of trauma care and why hospitals are getting out of the business. They highlight Grady in Atlanta. If you don’t know much about Grady, this is an excellent time to learn by reading that article online or in print.
Marty’s PR column had a couple of points and one is the average consumer can’t afford the attorneys that a successful businessman can. As a consequence of that fact, Marty indirectly asked if healthcare for the average person will suffer. The answer is yes.
I know far more about this than most will understand, which is fine. I absolutely do not need to defend the facts I know.
The Higham case is a bad one to use a discussion case, although it’s a perfect one for legal circles, and not in just my opinion.
Many defense attorneys, including those contracted with UMIA, one of the top malpractice insurers of Idaho physicians, will tell you neurological cases are among the cases most favorite for an attorney to accept. Both my real life experience and sensitivity to this case forbids me from saying a lot more here about this case, given what I’ve read.
Want to know more, ask an attorney why they like neurological cases. How much brain functioning do you understand as an average citizen, compared to an operation amputating the wrong leg? The example of the wrong leg being amputated is much more visually clear, not only because it’s a concept most can grasp and see, but their aren’t natural events like a blood vessel rupturing which can account for an amputation.
Conversely, the brain is far more complex to understand the cause of an injury. However, for those who know, A + B does = C and it is so frustrating to have to try to educate, even sometimes sophisticated defense attorneys, about some of the naunces of brain activity.
From what I’ve read, the Higham case needs to be reviewed again. There are two key points, widely made available by the media that PROVE what the attorneys charged just can’t be, based on medical facts, let alone other information from the case.
It’s clear something happened in Higham’s brain. Post #10, from JAC, is unforutnately, quite typical of a brain injured patient. The source of those injuries range from head traumas, to aneurysm, strokes, neurovascular events, extreme hypoxia and other causes.
The behaviors, of a brain-damaged person do change for many, so JAC’s comments don’t surprise me in the least (except the part about political affiliation, as I’m not sure of the connection to the direct brain insult).
Think this one through carefully. How many extra MRIs, CTs, MRAs, angiograms or orther neuroimaging studies, or extra tests do you to pay for, either directly or indirectly, want when obtaining routine care?
Will every ortho, plastic, ENT, eye and other surgeons now, as the local standard of care, have to order an MRI and/or CT/PET scan of the patient’s brain, prior to treatment, to document abnormalities and functioning prior to surgery? Tort reform helps keep health care costs down.
If physicians/surgerons and midlevels remain in the area to practice, but must practice far more defensively, expect huge leaps in your health insurance premiums, due to all the extra tests to prove facts, should that surgeon be sued down the road.
I’m not sure how many here have had MRI’s and understand the real costs. My last one cost $2,100, given some special cuts the ordering physician wanted. And, I have to have another identical MRI in about 4 months, thus another $2,100 for the second scan. And this isn’t defensive medicine, this is monitoring a situation medicine to make sure there haven’t been changes in 6 months.
Not every MRI is that expensive (my second to last one was more around $1,200 at the same, out-of-state facility). Costs depend on which system is being examined and whether constrast or special procedures have to be performed during the examination.
Just remember what may appear to be a clear case isn’t necessarily.
In a patient with a stroke, for example who didn’t do well at a hospital, do you know if the patient sought care from a chiropractor or someone else not qualified to manage a stroke first? Or, did the patient/family ignore the early symptoms and delayed emergent and successful early treatments for hours, so those first hour treatments could no longer be administered?
I know of such a case and the family blames the hospital for the outcome, yet will take no responsibility for not getting the patient to the E.R. within that precious first hour so emergency treatments could be started to hopefully minimize the damage. Is the hospital responsible?
I also know of cases where people were drinking or doing drugs, lied about those facts on hospital admission forms, then blame the hospital where they had adverse events or reactions to medications or anesthesia.
There are many variations on the theme. What if someone in your household broke a toe and you didn’t seek medical care? Yet, 6-12 months later, that person couldn’t walk appropriately so you finally took that person to a qualified practitioner for assessment. Will you blame the doctor who attempts to make the situation better, or accept your own level of responsibility for the worse-than-expected outcome, given that you didn’t seek care when the initial injury occurred?
And the last thing to remember, is every physician has the right to dismiss a patient from his/her practice without cause. All they need to do is inform the patients/parents/guardian in writing, provide 30 days emergency coverage and then never deal with the patient again.
Many people don’t know that doctors don’t have to tolerate the non-compliance or very poor decision making some patients or famiies show.
Tort reforms have many implications, and I don’t believe Joe has mentioned many here, which is why I’ve raised several additional issues.
In an emergency, will you, your family or friends need a local physician to save your life or minimize the damage as much as possible, or an attorney to sue for ALLEGED damages?
These are factors also to consider when discussing tort reform.
It’s sounding like I was clueless to the real issues here (and possibly the PR? it seemed they held the same thought area?)
And that’s okay, because others probably thought the same thing also. Here could be another example of why these discussions are great, the opportunity to change one’s mind.
If all the expenses and future lost wages are included, then the cap on pain and suffering doesn’t seem to be as big a deal.
I’m still dumbfounded (emphasis probably on the dumb) that lost potential future wages are acceptable without limit. You’re positive?
Joe:
Here’s the relevant part of the PR’s most recent story:
On May 17, a 12-member jury unanimously awarded him $5.1 million in compensatory damages and $2.4 million in pain and suffering damages based on what the panel saw was negligence on behalf of the hospital’s nursing staff.
Because of Idaho’s laws limiting what a plaintiff can receive for pain and suffering, the $2.4 million was reduced to its 2002 cap of $600,000. (In 2003, the cap was lowered to $250,000.
(In other words, Higham is still eligible to receive the full $5.1 million in compensatory damages.)
And, if you re-read the editorial on this issue on Thursday, Marty clearly understands that only the “pain and suffering” portion of the verdict is subject to a cap. This, in fact, is his point — if you can’t show that your life has significant economic value, you’re not going to get anything from a jury because of the pain and suffering cap.
I apologize. I didn’t mean to imply that the 54 million dollar lawsuit had anything to do with tort reform. I was only pointing out a most recent “frivolous lawsuit”. And from what I gathered the tort reform bill was basically enacted to prevent many of these frivolous lawsuits, which seek obscene amounts of money, by putting a cap on damages.
Sorry for not being more clear in my posting. Nevertheless, this is a great topic and I’ve learned quite a bit more about this subject since it was posted yesterday.
Excellent post Ok4now….although it took some time to read, you made some very good points. I like that you’re very thourough with your replies, explanations and opinions. And like many of you have explained, there’s alot more to this tort reform bill than just preventing frivolous lawsuits. After doing some research on the subject, I realize its a very controversial topic.
Thanks Joe for a great post! I’m right there with you in regards to your post 15. It took a little bit of research on my part to better understand the complexities of this topic.
Excellent debate
Then it was just I who misunderstood. Obviously I’m an idiot with no ability to grasp these issues. I apologize!
I guess I do agree with the legislation then. As long as awards can be granted for future lost earnings, because isn’t it really a way to compensate for the lifetime care these people often need?
Any aspects of tort lawsuits we can discuss still, salvage something out of this discussion.
Lots to discuss, from my POV. Different people just bring different information to the discussion.
I was a little confused of how Marty presented his information. So don’t think you’re alone Joe in understanding what can or can’t be capped, cuz I’m there too.
Hi Joe,
I like that this discussion board really results in discussion and not just yelling; really, read the ISJ blogs and you will see what I mean;
In answer to your question, Joe, (and no, you are not dumb by any stretch!! these can be very complex issues, and they can also be slanted in different directions to underscore different viewpoints)…the future lost wages can be calculated and presented to a jury, like most items of damage, with a reasonable degree of economic certainty (oftentimes, actuaries or other types of economists are called to testify as to future wages, life expectancy, wage forecasts, etc.); it is then up to a jury to decide what to award.
If I may, briefly, just sum up: there are many different types of damages awardable in a civil lawsuit; they usually fall into two broad categories: compensatory, which includes economic (which, in a personal injury case, include items such as lost wages, future care, medical bills, etc.) and non-economic…the “non-economic” are most often referred to as “pain and suffering” or “general” damages. these are the damages subject to the “damage cap” in Idaho.
The second broad category of damages in a civil action are “non-compensatories”. Non-compensatories do not “compensate” for a loss, but serve some other need, such as “punitive” damages, which serve to “punish” the wrongdoer. Interesting type of damage, by the way, because in civil court the goal is to compensate the person “wronged”, or “put them in the position they were in before the wrogn occured”; punishment is usually more properly left to the criminal courts…subject for another blog
Anyway, the “future wages” or “future lost earnings” are not limitless; established practice rules ensure that evidence supporting the same be presented, by economists or the like, indicating, as noted, how long the plaintiff will most likely live, how long they would have worked in their field, how much that particular field’s wages would be worth in the future, etc. Only then can a jury decide if it will apportion damages for lost wages, and how much.
Hope that helps. I would still like to see the article, if anyone has it. Thanks!
Nice explanation!
Thanks Babs
Glad to be of use; I’ve spent 15 years as an attorney and it definitely keeps me in interesting discussion issues……tort reform is an (understandably) hot-button issue, for both sides….
Interesting guest column in today’s Post Register by local attorney Brent Gordon.
He asked if anyone really thinks that our insurance costs will decrease as a result of tort award caps? He points out the record-setting profitable years that insurance companies have had, and the fact that premiums keep rising.
So the proof of the pudding should be in the tasting.
Idaho’s legislature capped the awards in 2003, it’s been four years now, surely we should be seeing lower insurance premiums by now, right?
Right? Anyone seen lower insurance premiums?
Come on all you medical industry folks that always jump me for not knowing your field, tell me about your lower insurance premiums in the last few years?
Anyone? Bueler?
That is an excellent point. The lobbyists for these companies most certainly used the argument that premiums could stabilize if caps were put in place. Another disingenious argument to screw people over and get more profits for shareholders.
While not a fan of price fixing…..it becomes more tempting when we see continued examples of real or perceived price gouging and record profits.