[spikels]

Nice theory but the reality is quite different. Medical care is far from a solved problem. For example if you are a teenager who gets an aortic aneurism (literal your heart is about to explode) in a car accident only 50% will survive even with the best care. How can cardiac surgeons afford to save half of these people if they know they will probably be sued by many of the other half with Texas juries awarding millions in damages for many of these statitically unavoidable deaths? They can't and neither can their insurers.

For decades Texas juries were awarding so much money so often it became impossible for many high risk specialties, such as delivering babies (think of the downside versus upside), to get insured. In 2000 around a quarter of doctors in Texas were being sued for medical malpractice. Most insurance companies stopped writing insurance for doctors in Texas and the few remaining cooperatives faced bankruptcy. This is why both the Texas legislature and Texas voters (Prop 12) decided to limit damage awards in 2003 to what is now around an inflation adjusted $2 million per victim. Similar things happened in other states with California leading the way in the mid-1970s with a even more restrictive law (no inflation indexing - still the same $250,000 cap as 40 years ago)[1].

Remember the Texas lawyers and juries who have pretty much ruined the US patent system. I that who should an best police doctors? The Texas Medical Board seems like a pretty good approach: people with actual medical training and experience reviewing complaints about doctors. Maybe there is something better for getting rid of incompetent doctors than the Texas Medical Board (ideas pleae?) but unrestricted litigation proved unsustainable.

[1] http://en.wikipedia.org/wiki/Medical_Injury_Compensation_Ref...

[tzs]

The Texas limit on non-economic damages is still $250k. It is not adjusted for inflation [1]. It's only the limit on total damages in a wrongful death suit that is indexed for inflation. Punitive damages are limited to $200k or twice the total of economic and non-economic damages up to a max of $750k. These also are not indexed. Here is what Texas defines as non-economic damages [2]:

"(12) "Noneconomic damages" means damages awarded for the purpose of compensating a claimant for physical pain and suffering, mental or emotional pain or anguish, loss of consortium, disfigurement, physical impairment, loss of companionship and society, inconvenience, loss of enjoyment of life, injury to reputation, and all other nonpecuniary losses of any kind other than exemplary damages."

[1] http://www.legalmatch.com/law-library/article/texass-cap-for...

[2] http://www.statutes.legis.state.tx.us/Docs/CP/htm/CP.41.htm

[hswoo2]

In Australia if you had an aortic aneurism such that it was highly likely for you to die anyway it is highly unlikely for you have any claims in the tort of negligence as it requires a gross negligence on the part of the doctor such that it has a substantial link to the causation of the death. There also defences of necessity - that is the person is dying therefore it is necessary for the doctors to take all measures to save the patient. Thus it is probably significantly difficult for a person to be successful in medical malpractice unless it was blatantly largely caused by the doctor alone.

I also would guess that the US would have a similar legal system, which allows for such defences from such claims.

It seems that if courts are paying out too much this is not an issue to do with people making frivolous claims and cashing in but with the way the judiciary is deciding on the claims. If it was more difficult for claims to be successful in court this would stamp out such claims instead of imposing monetary caps which don't allow for the flexibility to compensate each individual case.

I find it strange that the legislature is getting involved in an area which is really up to the judiciary to perform its function...

[jasonwocky]

The TMB taking this responsibility seems workable on face value; in a lot of ways, this correlates with how many European nations handle consumer protection: fewer lawsuits are permitted, but the bureaucracy increases its responsibility and authority. It seems like a pretty straightforward tradeoff with no obvious answer; just a tradeoff curve.

When it fails is when, as grandparent indicates, the bureaucracy (TMB in this case) wasn't given enough additional resources to handle the increased workload.

[fnordfnordfnord]

>Remember the Texas lawyers and juries who have pretty much ruined the US patent system.

Come on that's not fair. Companies shop for the most technically mal-adept cohort to decide their cases, because they strategize that they can hire a more persuasive lawyer. The residents of East Texas didn't design the legal system that surrounds patent disputes. This is a weakness in the law.

[lifeisstillgood]

Don't get me wrong but isn't this the fault of the juries? Who by the way must also be the voters?

I mean if you are happily awarding damages to heart surgeons who only save half their patients when the rest of the planet does not better, then the problem is in the jury box? no?

[dfc]

  > Who by the way must also be the voters?

I am assuming this was a question and not a passive aggressive taunt. The answer is "No, it is not the case that being on a jury is proof that the juror has voted in an election." Many states use voter registration rolls as an input to the jury duty selection process but I can not find any that screen potential jurors based on actually participating in an election. Furthermore voter registration is not the only way that a citizen can end up being called for jury duty; states often use other DBs eg DMV, Hunting/Fishing licenses, etc for jury duty.

[lifeisstillgood]

Not meant to be P-A taunt, though hell this is the Internet so reasonable supposition :-)

No it was really "the public" I meant. Voters, jurors, us in other words. If Texas juries in one county are making patents a laughing stock, it really is upto the rest of us - either in that county, or in juries in other counties and countries, to change that. Or perhaps vote it out of existence. It just seems to me that we read an article and get the "something must be done"'feeling, and are happy when the something does not involve us, hard work, care or a long time. Yet those something's rarely work out.

in short, the current problem with patents is not the fault of various jurors and voters in a small part of Texas. it's our fault.

[dfc]

Okay, I am in complete agreement with this sentiment. Where I disagree is with the notion that jurors and voters are equivalent and/or using the two terms as if they are interchangeable. I think it would be interesting to compare the demographics of juries vs voters.[^1] I have a sneaking suspicion that the two populations are dramatically different.

[^1]: I posted a question at the SX for politics but I have never had much luck there. http://politics.stackexchange.com/q/3218/1926

[lifeisstillgood]

Well I have only ever been in one population to be honest, so maybe. But it is probably pretty random, so I would be quite shocked if there was a dramatic difference in demographics of both.

[dfc]

Why would Jurors be random? You think that voir dire is just two attorneys rolling dice?