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Tort Reform is BS


Lucifer
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When it became clear that Republicans were going to have to offer their own ideas on health care, if for no other reason than to show they are more than the Party of No, they put on their thinking caps and came up with four. One -- "Give states the tools to create their own innovative reforms that lower health care costs" -- is essentially meaningless. Another -- "Allow individuals, small businesses, and trade associations to pool together and acquire health insurance at lower prices" -- sounds like the exchanges established by the Democrats' plan, just in less effective form. And a third -- "Let families and businesses buy health insurance across state lines" -- is a spectacularly dumb idea that would bring all the humanity of the credit-card industry to health care.

But the GOP's final health-care proposal might actually end up happening. The Republican Party wants to limit people's ability to sue over medical malpractice, a cause known as "tort reform." President Barack Obama has said many times he supports the idea, as have some other Democrats. There are a number of ways one could go about tort reform, each of which has economic, medical, and moral implications. Before anyone accepts the Republicans' favored version, though, we should understand that their policy won't do what they say it will.

Let's deal with the economic question first, because that's the point from which tort-reform advocates usually begin. The argument goes like this: Jackpot jury verdicts cost too much money, driving up the price of malpractice insurance. Not only that, because of the fear of lawsuits, doctors engage in "defensive medicine," ordering unnecessary tests and increasing the cost of care. If we were to remove the incentive for people to file lawsuits, then malpractice-insurance rates would decline, and so would health spending. Half of the states have already done this, by capping "non-economic damages," which means damages associated not with lost wages or the cost of future care but with "pain and suffering." For instance, if a doctor commits some egregious kind of malpractice and injures you or kills a family member, the most you can sue for in pain and suffering damages is, depending on what state you're in, something like $250,000.

If big jury awards are a significant driver of medical spending, then restricting those awards should result in a dramatic reduction in medical spending. So has that happened in states with caps?

The answer is no. At last week's health-care summit, John McCain gave a glowing endorsement of Texas' experience with caps on non-economic damages, which were instituted there in 2003. The number of malpractice lawsuits has declined there, as have malpractice insurance rates. But has that led to a dramatic decrease in spending? Not even close. In fact, per-patient health-care spending in Texas has gone up at a rate oftwice the national average since the state instituted tort reform, and spending on diagnostic testing -- the kind of "defensive medicine" tort reform is supposed to eliminate -- has also gone up faster than the national average. So while tort reform in Texas has been good for malpractice insurers and good for doctors, it doesn't seem to have done anything for patients.

Does Texas' experience apply nationally? While there's no perfect way to quantify how much defensive medicine goes on, Harvard economist Amitabh Chandra estimates that the total cost of defensive medicine is around $60 billion per year. That's a large amount of money, but still only 3 percent of our nation's total health-care bill. Reduce it somewhat, or even significantly, and you've made only a small dent in overall spending. That's why when the Congressional Budget Office examined the issue, it concluded that a national cap on pain-and-suffering damages would have an impact on spending -- just not a particularly large one. "The combination of direct savings in malpractice costs and indirect savings in health care services would reduce national health spending in response to the proposed reforms by roughly 0.5 percent," the CBO reported.

Then we have the medical question. Malpractice lawsuits happen when malpractice happens. The discussion that comes from tort-reform advocates assumes that these lawsuits are largely "frivolous," but the truth is that thousands of Americans die every year as a result of preventable medical errors. An oft-cited 1999 study from the Institute of Medicine pegged the number at 98,000 per year. Last year an investigation by Hearst newspapers estimated the current figure to be 200,000 deaths per year.

These errors can result in lawsuits -- but usually don't. When the CBO looked at one year, 2003, they concluded that 181,000 severe injuries or deaths were caused by medical negligence. But only 17 percent of those injured actually filed a malpractice claim, meaning that five out of six patients who were injured by malpractice never sued.

Let's also keep in mind that a certain amount of "defensive medicine" is actually desirable, if it means fewer errors and better outcomes for patients. Tort-reform opponents often point to the experience of anesthesiologists. Because of the threat of lawsuits and high insurance costs, they successfully found ways to increase the safety of their practice, and the risk of death during surgery from anesthesia was reduced over 25 years from one in 4,000 to one in 250,000. That saved money, but more important, it saved lives.

Nevertheless, lawsuits are an extremely inefficient backstop against abuse, whether in medicine or any other area of our national life. Which brings us to the political context of this debate. For years, the GOP strategy has been to get people coming and going -- on the one hand, Republicans fight against the regulations that can prevent abuses from happening; on the other hand, they work to strip courts of their ability to punish those abuses when they occur. The keen interest Republicans have in medical malpractice is best explained by this fact: When a jury renders a large award, a trial lawyer makes money. And trial lawyers are significant donors to Democrats. Make large awards go away, and you cut off money to the Democratic Party.

This is standard political gamesmanship, but it affects people's lives. If you live in one of the states that cap non-economic damages, the state has said quite clearly that the value of your suffering, or even of your life, is a function of your income. It assumes that the life of a hedge-fund manager who died because of medical negligence is worth more than the life of a construction worker who died for the same reason.

As vulgar as that calculation is, it is unlikely to change. Nonetheless, there are alternative approaches out there: health courts staffed by medical professionals, "safe-harbor" for doctors who follow accepted guidelines for treatment, and an approach commonly referred to as "sorry works." In this system, doctors report errors immediately to the hospital, which then begins negotiating with the patient for compensation, instead of waiting to see if the patient files a lawsuit (in 2005, Obama and Hillary Clinton introduced a bill to promote "sorry works" systems around the country). The University of Michigan Health System instituted this system a few years ago, and it has seen malpractice suits plummet, all while patients get compensated for errors more quickly. The Michigan system also incorporates peer review to learn from the errors and make them less likely. Which is the point, after all -- not just to save money but to reduce the errors and abuse that give rise to lawsuits in the first place.

In a perfect world, no one would ever need to sue a doctor for malpractice. Until we live in that world, we should be wary of those who claim we can solve our health-care problems simply by taking away patients' right to be compensated when they get injured. That won't solve our medical spending problem, and it's likely to make patients less safe.

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Somebody call me when they want to address the 50 billion lb elephant in the room.

If doctors are committing crimes, put them in jail. Otherwise, it's just a risk of surgery, committed by humans.

Edited by 2tearsinabucket
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I agree. Somebody call me when they want to address the 50 billion lb elephant in the room.

If doctors are committing crimes, put them in jail. Otherwise, it's just a risk of surgery, committed by humans.

AGAIN, there is a middle ground. It isn't "either a crime or an acceptable risk of surgery". Sometimes errors are made that are not reasonable or acceptable. My question is will tort reform so greatly restrict the ability of plaintiff's to attain a reasonable settlement, and thus allow medical practitioners to be less concerned with their performance?

There have been instances in the past in which a company was so derelict in their duties that they deserved to be seriously punished. If the settlements are capped then corporations will obviously adjust their risk assessment process and probably endanger many, many more people. Will tort reform apply to corporations as well?

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I like this quote:

If you live in one of the states that cap non-economic damages, the state has said quite clearly that the value of your suffering, or even of your life, is a function of your income.

Could this be any more wrong? By it's very definition, general capping general damages means that the hedge fund manager's pain and suffering and loss of enjoyment of life is of no more worth than the construction workers.

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AGAIN, there is a middle ground. It isn't "either a crime or an acceptable risk of surgery". Sometimes errors are made that are not reasonable or acceptable. My question is will tort reform so greatly restrict the ability of plaintiff's to attain a reasonable settlement, and thus allow medical practitioners to be less concerned with their performance?

There have been instances in the past in which a company was so derelict in their duties that they deserved to be seriously punished. If the settlements are capped then corporations will obviously adjust their risk assessment process and probably endanger many, many more people. Will tort reform apply to corporations as well?

Give an example.

And if you think medical practitioners will be LESS concerned about their patients because they aren't scared ****less of the lawyers buzzing the lobby, then you've clearly got a warped view on human compassion.

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I like this quote:

Could this be any more wrong? By it's very definition, general capping general damages means that the hedge fund manager's pain and suffering and loss of enjoyment of life is of no more worth than the construction workers.

Can you restate that in another way? I'm not sure I understand what you're trying to say with your statement and I want to know what you mean.

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Can you restate that in another way? I'm not sure I understand what you're trying to say with your statement and I want to know what you mean.

Non-economic (general damages) damages are obviously damages that cover things like loss of quality of life, suffering, etc. By capping those, it means that the loss of quality of the hedge fund manager's lifestyle is no more important than that of the construction workers.

That said, if a hedge fund manager and a construction worker come out of a surgery braindead, it's reasonable to assume that the hedge fund manager's future will be more greatly financially impacted because his future earnings would have been larger.

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Give an example.

And if you think medical practitioners will be LESS concerned about their patients because they aren't scared ****less of the lawyers buzzing the lobby, then you've clearly got a warped view on human compassion.

Example: My uncle by marriage went in to have surgery several years ago for something relating to his "reproductive system". During the surgery, the doctor did some things that basically created a eunuch. And it wasn't just that his testicles were removed, but some other internal things were done that I really don't understand but my uncle is absolutely not capable of sexual relations at all. That isn't acceptable risk; it's gross incompetence.

In response to your statement about compassion:

Okay if you can tell me that there are no doctors who refuse to give service because a patient has no insurance I'll agree with you. If there is so much compassion then why is "payment expected at time services are rendered", and why are patients turned away because they do not have the funds to pay for care? In many instances, that "compassion" is equal to the loyalty professional atheletes suddenly develop after some team decides to pay them a truckload of cash. If the cash isn't there then the loyalty/compassion may not be there either.

And I say this applies to only some medical practitioners, certainly not all.

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Non-economic (general damages) damages are obviously damages that cover things like loss of quality of life, suffering, etc. By capping those, it means that the loss of quality of the hedge fund manager's lifestyle is no more important than that of the construction workers.

That said, if a hedge fund manager and a construction worker come out of a surgery braindead, it's reasonable to assume that the hedge fund manager's future will be more greatly financially impacted because his future earnings would have been larger.

But since they are not capping the economic damages then the hedge fund manager would be awarded more money on that front, correct? I agree that there should not be a difference in the settlement amounts for people of different income levels when calculating non economic damages.

Did you make your statement because yuo disagree with that or because you were proving a point to a different poster on this thread? Sorry, just trying to make sure I'm clear on things.

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But since they are not capping the economic damages then the hedge fund manager would be awarded more money on that front, correct? I agree that there should not be a difference in the settlement amounts for people of different income levels when calculating non economic damages.

Did you make your statement because yuo disagree with that or because you were proving a point to a different poster on this thread? Sorry, just trying to make sure I'm clear on things.

The original statement was wrong only because it linked income to what pain and suffering is worth.

The correct thing to say is that the law means those with higher incomes can recover higher economic damages because they make more money. What the law does with regard to non-economic damages has nothing to do with income. It's wrong because it puts an arbitrary limit on what ANYONE's suffering is worth without regard to what kind of suffering or pain we are talking about, and it does it for the sole purpose of allowing insurers to more easily allocate their potential liabilities.

So if you have an infected incision site that was caused by negligence, the law theoretically could allow you to collect the exact amount of money for pain and suffering as someone who is partially paralyzed and has to have a colostomy bag and catheterize themselves 5 times a day.

And, to get to brass tacks, the cap money is wholly insufficient to recompense the latter.

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The original statement was wrong only because it linked income to what pain and suffering is worth.

The correct thing to say is that the law means those with higher incomes can recover higher economic damages because they make more money. What the law does with regard to non-economic damages has nothing to do with income. It's wrong because it puts an arbitrary limit on what ANYONE's suffering is worth without regard to what kind of suffering or pain we are talking about, and it does it for the sole purpose of allowing insurers to more easily allocate their potential liabilities.

So if you have an infected incision site that was caused by negligence, the law theoretically could allow you to collect the exact amount of money for pain and suffering as someone who is partially paralyzed and has to have a colostomy bag and catheterize themselves 5 times a day.

And, to get to brass tacks, the cap money is wholly insufficient to recompense the latter.

Well then I did misunderstand. I was basing my logic on the idea of if a patient were to die on the table due to negligence then I think the non-economic portion of the settlement should be equal for each person because each person likely values their life as much as the next guy regardless of their vocation.

Relating to the last line in your post above, if the "bolded" paragraph above it is accurate, then obviously that is an unacceptable outcome. And you're saying that this is what would happen if Tort reform comes to fruition, not what happens now; is that correct?

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Example: My uncle by marriage went in to have surgery several years ago for something relating to his "reproductive system". During the surgery, the doctor did some things that basically created a eunuch. And it wasn't just that his testicles were removed, but some other internal things were done that I really don't understand but my uncle is absolutely not capable of sexual relations at all. That isn't acceptable risk; it's gross incompetence.

I don't know the circumstances on what the doctor did. If he cut corners or tried to hide his screw-up, throw his *** in jail. If he made an honest mistake, well, that's part of the risk of being operated on by humans.

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I don't know the circumstances on what the doctor did. If he cut corners or tried to hide his screw-up, throw his *** in jail. If he made an honest mistake, well, that's part of the risk of being operated on by humans.

Well the doctor owned up to it; he's a good man. But IMO, that doesn't excuse the negligence and there's nothing wrong with a patient in that situation suing the doctor for damages. And the settlement should be rather large, I think.

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Well then I did misunderstand. I was basing my logic on the idea of if a patient were to die on the table due to negligence then I think the non-economic portion of the settlement should be equal for each person because each person likely values their life as much as the next guy regardless of their vocation.

Relating to the last line in your post above, if the "bolded" paragraph above it is accurate, then obviously that is an unacceptable outcome. And you're saying that this is what would happen if Tort reform comes to fruition, not what happens now; is that correct?

Not sure which part was bolded -- I think you're talking about the line about cap money being insufficient. If that's the case, let's use an example:

Say the person I spoke of is injured by a doctor. Not gross negligence, but lets say he's doing a laminectomy with a high speed drill and not using any protective device to protect the spine. Let's say the standard of care has changed since he was trained to do that, and he takes his CMEs and knows this, but still does it the old way because he's never had a problem, and let's say one day the drill slips and punches through the dura and damages the spinal cord, causing partial paralysis. Assume for purposes of the discussion that this constitutes negligence under the law which is actionable. Now, the patient has to use a walker, has a colostomy and needs to catheterize herself 5 times a day.

Let's say she's a 35 year old housewife with no income and her older, rich husband takes care of her, but now that she looks like an old lady instead of the hot young thing she was before the injury, her husband left her. So she has no income, and therefore apart from the cost of her medical care, no economic damages.

Lets assume the law is that her medical must be reimbursed (which is significant, but doesn't inure to her benefit since it will go to pay medical providers), her wage losses must be reimbursed (cep'n she doesn't have any), and her "non-economic damages" must be reimbursed (pain and suffering, loss of life, loss of enjoyment of life, loss of consortium, etc.). In Georgia, the non-economic damages (the ONLY part she will see a dime of in my scenario) are $350,000.00.

I don't know how you value an injury like that, but I value what her life has become at one bloody **** of a lot more than $350,000.00. Theoretically, since there is a cap, the guy with the broken leg could also get $350,000.00 for his pain and suffering (not likely, but you never know).

I've always said that "tort reform" doesn't stop frivolous lawsuits. They cap the very most meritorious lawsuits (such as the one I mentioned).

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Well the doctor owned up to it; he's a good man. But IMO, that doesn't excuse the negligence and there's nothing wrong with a patient in that situation suing the doctor for damages. And the settlement should be rather large, I think.

And yours and my premiums will rise because of it. Do you want cheap medical care or do you want everyone with a sh**ty experience at the hands of a doctor to paid? You can't have both.
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I think the fact that people are actually placing that much emphasis on tort reform means a lot of people don't understand simple numbers.

There are a great deal of malpractice costs in the industry, and those do affect the bottom line. Just making up a number here, say it accounts for 10% of all medical costs.

Now, a good deal of those cost are 100% legitimate. Doctors do screw up and sometimes they should be held liable for those screw ups. The problem at hand is that people feel that some of those cost arent justified. So say we came up with legal code that cut out everything that isn't legitimate. How much would that cut out of aggregate malpractice costs? 10%? Simple math... you cut 10% out of something that accounts for 10% of total costs (and I think I'm being generous here), you've cut 1% of costs. Not bad by any stretch, but a 1% change in cost isn't any kind of healthcare reform.

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Not sure which part was bolded -- I think you're talking about the line about cap money being insufficient. If that's the case, let's use an example:

Say the person I spoke of is injured by a doctor. Not gross negligence, but lets say he's doing a laminectomy with a high speed drill and not using any protective device to protect the spine. Let's say the standard of care has changed since he was trained to do that, and he takes his CMEs and knows this, but still does it the old way because he's never had a problem, and let's say one day the drill slips and punches through the dura and damages the spinal cord, causing partial paralysis. Assume for purposes of the discussion that this constitutes negligence under the law which is actionable. Now, the patient has to use a walker, has a colostomy and needs to catheterize herself 5 times a day.

Let's say she's a 35 year old housewife with no income and her older, rich husband takes care of her, but now that she looks like an old lady instead of the hot young thing she was before the injury, her husband left her. So she has no income, and therefore apart from the cost of her medical care, no economic damages.

Lets assume the law is that her medical must be reimbursed (which is significant, but doesn't inure to her benefit since it will go to pay medical providers), her wage losses must be reimbursed (cep'n she doesn't have any), and her "non-economic damages" must be reimbursed (pain and suffering, loss of life, loss of enjoyment of life, loss of consortium, etc.). In Georgia, the non-economic damages (the ONLY part she will see a dime of in my scenario) are $350,000.00.

I don't know how you value an injury like that, but I value what her life has become at one bloody **** of a lot more than $350,000.00. Theoretically, since there is a cap, the guy with the broken leg could also get $350,000.00 for his pain and suffering (not likely, but you never know).

I've always said that "tort reform" doesn't stop frivolous lawsuits. They cap the very most meritorious lawsuits (such as the one I mentioned).

The doctor in that example cut corners. He was well aware of the change in medical standard of care and decided against it and it cost the girl her ability to walk and take a crap. Throw his *** in jail. He might as well have operated on her while he was drunk.

Secondly, it's not the doctor's fault that the older husband is a doosh. It should have no bearing on the case.

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I suggest those that expect perfection from doctors let machines and computers operate on them.

You are creating a false dichotomy. There is an area between "perfection" and "criminal behavior." Doctors, like everyone else, operate under a standard of care. A breach of that standard of care is what the law calls negligence. If your negligence harms someone else, they are entitled to recover their damages caused by your negligence.

You are making the false claim that people who don't like tort "reform" are expecting "perfection" from doctors. No one is talking about things within the standard of care. You can be injured by a doctor or have a bad outcome and there be no negligence at all. People die on the table every day. Likewise, there can be negligence with no injury (the doctor in the example I gave above was "negligent" in that he breached the standard of care, but until he injures someone by his negligence, no one can recover anything from him). But where there is a breach of the standard AND damages, you can and should be able to recover.

And the irony is that while you accuse us of unreasonably expecting perfection when we are not, YOU are trying to put doctors above everyone else in the country, because we DO have to be responsible for the damages caused by OUR negligence. If I run over someone in my car and they are burned over 80% of their body, there's no non-economic damages cap to protect my happy ***.

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The doctor in that example cut corners. He was well aware of the change in medical standard of care and decided against it and it cost the girl her ability to walk and take a crap. Throw his *** in jail. He might as well have operated on her while he was drunk.

That's called negligence. It's not a crime, but it is a tort. You appear now to want to make all torts a crime.

Secondly, it's not the doctor's fault that the older husband is a doosh. It should have no bearing on the case.

It doesn't except for the fact that she has no economic damages. I used that to illustrate how someone can have an actionable case with a horrible injury and only recover $350,000.00 under the law.

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I think the fact that people are actually placing that much emphasis on tort reform means a lot of people don't understand simple numbers.

There are a great deal of malpractice costs in the industry, and those do affect the bottom line. Just making up a number here, say it accounts for 10% of all medical costs.

Now, a good deal of those cost are 100% legitimate. Doctors do screw up and sometimes they should be held liable for those screw ups. The problem at hand is that people feel that some of those cost arent justified. So say we came up with legal code that cut out everything that isn't legitimate. How much would that cut out of aggregate malpractice costs? 10%? Simple math... you cut 10% out of something that accounts for 10% of total costs (and I think I'm being generous here), you've cut 1% of costs. Not bad by any stretch, but a 1% change in cost isn't any kind of healthcare reform.

1% of 2.5 trillion is $25 billion. I think that's worth talking about.

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I think the fact that people are actually placing that much emphasis on tort reform means a lot of people don't understand simple numbers.

There are a great deal of malpractice costs in the industry, and those do affect the bottom line. Just making up a number here, say it accounts for 10% of all medical costs.

Now, a good deal of those cost are 100% legitimate. Doctors do screw up and sometimes they should be held liable for those screw ups. The problem at hand is that people feel that some of those cost arent justified. So say we came up with legal code that cut out everything that isn't legitimate. How much would that cut out of aggregate malpractice costs? 10%? Simple math... you cut 10% out of something that accounts for 10% of total costs (and I think I'm being generous here), you've cut 1% of costs. Not bad by any stretch, but a 1% change in cost isn't any kind of healthcare reform.

More to the point, there are better and easier ways to deal with the illegitimate cases other than putting an arbitrary cap on the most meritorious cases.

That's the offensive thing to me about tort reform: it was sold as being designed to stop frivolous cases ("junk lawsuits," "lawsuit abuse," etc.) but what was done was designed to attack the most meritorious lawsuits with the most horrific injuries. It was a lie from day one.

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And yours and my premiums will rise because of it. Do you want cheap medical care or do you want everyone with a sh**ty experience at the hands of a doctor to paid? You can't have both.

I think you can have both, or at least a balance of both. If doctors; corporations, attorneys, whomever are negligent and that negligence leads to catastrophic outcomes for other individuals then there has to be a real penalty for that. That doesn't mean that we cannot have affordable healthcare. Create review panels, and if a doctor experiences enough negative judgements (lawsuits) then remove that doctors license.

We could easily have it both ways. But tort reform seems like an effort to fix a problem with a hatchet when a scalpel is required. There just needs to be a reasonable effort made to eliminate huge settlements for smaller or nonexistent injuries. Serious medical errors must be met with serious financial consequences. I notice that the insurance companies are still managing to make huge profits, so the money to have both is in there somewhere.

Edited by xnex
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That's called negligence. It's not a crime, but it is a tort. You appear now to want to make all torts a crime.

It doesn't except for the fact that she has no economic damages. I used that to illustrate how someone can have an actionable case with a horrible injury and only recover $350,000.00 under the law.

I do want to make all valid torts a crime! I just don't feel like honest mistakes should be punished punitively.

And she should be suing her husband for leaving her at her time of need. Their relationship has no bearing on the case at hand.

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