Archive for the ‘Litigation Crisis Myth’ Category

Is Tort Reform Really the Answer?

Is tort reform really the answer to frivolous lawsuits? More studies are coming out that show that tort reform doesn’t produce substantial savings and even puts patient safety at risk.

“Politicians often ask us for proof that “tort reform” makes us less safe. But “proof” was always difficult to find – until now.” Joanne Doroshow, Center for Justice & Democracy at New York Law School.

Read Joanne’s Huffington Post article, “How Tort ‘Reform’ Ruins Health Care for Everyone” about three studies on tort reform.

Tort Reform Myth #2 – Tort Reform Will Improve Health Care

When your waiter makes a mistake on your lunch order, you can send it back to the kitchen or get your money back. If a mechanic makes a mistake repairing your car, you can take it back or get your money back. You can take the mechanic to small claims court. When the barber cuts your hair wrong it will grow back. When a doctor, a nurse or a hospital makes a medical mistake, you can’t take it back and you don’t get your money back. Many of these victims of medical malpractice suffer life-long, life-threatening, life-changing injuries due to the negligence of their health care provider. These patients deserve to have their medical expenses paid for. They deserve to be compensated for their lost wages and they deserve compensation for their pain and suffering.

The supporters of tort reform put forward that protecting the doctors, nurses and hospitals from being held financially responsible for their mistakes will actually help improve health care. The theory is that by reducing the financial consequences, the cost of malpractice insurance will decrease. Without the specter of lawsuits looming over their heads, doctors, nurses and hospitals will stop practicing “defensive medicine” and provide better service to their patients.

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Tort Reform Myth #1 – Tort Reform Will Cut Health Costs

With health care reform in the news these days, one of biggest arguments that supporters of tort reform maintain is that the high cost of medical treatment is due to medical malpractice lawsuits.

Health economists and legal experts assert that it’s not medical malpractice lawsuits that are driving up the cost of healthcare, but the medical errors that medical malpractice lawsuits try to prevent that take a toll on not only injured patients but the health care system itself.

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Frivolous Lawsuits…Why Sue?

What if your frivolous lawsuit could prevent someone else from suffering what you’ve experienced?

Almost every day in the news you’ll hear about a “frivolous lawsuit” that some idiot has filed because they slipped and fell while trying to rob a dry cleaning business or a gentleman who crashed his motorhome when he got up to make himself a sandwich while driving on the interstate. So what do we really mean by a “frivolous lawsuit?”

A case may considered frivolous if the lawsuit is based on absurd legal theories with many motions filed as a means of harassment. Another definition of a frivolous lawsuit is a case that has solid legal ground but is deemed frivolous due to the percieved value of the damages such as malpractice suits filed against doctors or products liability claims filed against the manufacturers of faulty medical devices or unsafe drugs.

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Medical Device Safety Act Protects Patients

Let’s imagine your doctor has diagnosed a serious heart condition that requires a defibrillator to prevent a fatal arrhythmia.

Imagine then, the horror when this life-saving device malfunctions and instead of helping save your life, sends multiple dangerous, life-threatening shocks to your heart and throughout your body. Now your health has been seriously compromised and you face more medical bills due to hospital stays and medications to monitor and repair the damage caused by this malfunctioning medical device.

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Oregon Aims to Limit Attorney Fees

Nothing feels quite like being proven right.

Some time ago, I blogged about a defunct Colorado effort to limit the amount of money a plaintiff’s attorney could charge. I suggested that this was the future of “Tort Reformers,” reducing access to attorneys by attempting to lower the amount of money they earned, rather then the past effort to convince people that injuries and lives could only be worth set amounts.

Well, guess I’m right.

Now comes Oregon Republicans with a horrible ballot initiative, that they have tried to claim will “Protect Citizens from Excessive Attorney’s Fees.” Never mind the fact that the limit proposed is far, far, far below the industry wide norm. Never mind that nothing in the initiative would prevent defense attorneys defending corporations, or otherwise representing the people that can afford to pay high hourly rates upfront, from charging any amount they want an hour.

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Justice Delayed and Justice Denied

The Supreme Court issued a decision, reducing the punitive damages Exxon would have to pay as a consequence of their continued employment of a known drunkard who caused the catastrophic Exxon Valdez oil spill. Thus ends a long and storied battle over responsibility for a massive oil spill.

In 1994, a jury awarded punitive damages of $5 billion, which was then reduced to $2.5 billion. Now, the Supreme Court has further reduced the punitive award to $500 million, stating that in these situations (which are admittedly limited), the ratio of compensatory damages to punitive damages must be 1 to 1.

The Court based their decision on a perceived need for consistency, stating that punitive damages are sometimes high and sometimes low, and similar facts do not necessitate a similar award. I have a hard time arguing with that; one of the underlying theories of the Common Law is that it should be consistent and built on precedent. But I feel that the Court missed the forest for the trees, so to speak.

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Tort Reformers Have a Problem

Tort Reformers have a problem. They can push through laws that limit damages by harping on the “litigation lottery,” but inevitably, people will start to realize that what those laws do is essentially declare “You, an individual citizen, cannot possibly be harmed more then this amount.” This statement doesn’t sit well with most people, since Americans tend to recoil from legislative fiat. So now, the tort reformers have another tact they’re trying: the tort system needs to be reformed because plaintiff’s attorneys are making too much money.

Comes now a Colorado ballot initiative, aimed at severely limiting attorney’s fees. The initiative would have set a schedule for contingency fees, reducing from the standard 30%, down to 20% and then to 10% as the amount of the jury award rises. It also would have set a severe limit on overall contingencies, essentially allowing the percentage to plummet with no bottom in certain circumstances.

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The Truth, the Whole Truth and Nothing But the Truth. Media Influence on Litigation.

Most of us take for granted that what we see in the media is fairly accurate, factual and the truth. But how much of the truth are we really getting? Remember the the hot coffee lawsuit? Stella Liebeck of Albuquerque, NM, sued McDonalds in 1992 when her coffee that she placed in her lap spilled, causing severe burns? What if we were to tell you…

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