Alabama Personal Injury Blog - Tort Reform

AHA Advocates substituting good ole boys for juries

Pete Burns — Wed, 21 Oct 2009 09:14:53 GMT

The American Hospital Association is advancing a bizarre version of malpractice “reform”. It advocates substituting a local panel of experts appointed by state authorities for juries. So the state medical association would appoint doctors in each community to sit in judgment of doctors in their communities. That would be an effective way to curb malpractice suits! Suppose we gave the same opportunity to contractors, business executives, and drug companies? Industry insiders could be counted upon to reduce the cost of litigation to their comrades by shifting the burden of malfeasance to the victim. Heaven help us if we replace our venerable jury system with the good ole boy network.

Originally posted at InjuryBoard by Pete Burns

Tort Reform - As Seen In The Movies

Pete Mackey — Wed, 23 Sep 2009 08:36:09 GMT

Remember the opening scene in the movie "10"? The elderly woman sitting in a chair against the wall lets one loose, whereupon the sleeping dog next to her bolts out of the room. As Dudley Moore watches in wonderment, the butler explains, "whenever Mrs. Kissel breaks wind, we beat the dog."

And so it goes with tort reform. Malpractice carriers raising their rates? Beat the dog. Too many OB/GYNs aren't able to practice their love with women all across this country (note to W - the awesome quote does not make up for the lie)? Beat the dog. Need to throw a bone to the naysayers in order to get a healthcare bill passed? Beat the dog. What do they do when beating the dog doesn't lower malpractice premiums or lower healthcare costs? At that point, it doesn't matter, because it was never about the dog, anyway.

Originally posted at InjuryBoard by Pete Mackey

How Do You Feel About Tort Reform? It Depends On How you Feel

Pete Mackey — Sat, 19 Sep 2009 21:28:39 GMT

Feelings about tort reform can vary with the landscape. Anyone who makes their policy decisions primarily in accordance with their financial bottom line, and happens to be on the white collar side of the equation, loves tort reform - as long as it does not affect their pocketbook. Damage Caps? Check. Insanely short statutes of limitation? Roger that. Arbitration? Of course.

Howard Bronson, the former publisher of the Mobile Press-Register since 1991, has seen the light. The man who carried all the water for the tort reform movent that he could, who made sure that his newspaper railed against what he saw as "jackpot justice" and "runaway verdicts," who never saw a punitive damage award that was justified, has done a one eighty. After being shown the door, he has filed suit against the owner, claiming that it reneged on a job security agreement made when he started with the paper. Way to go, Howard! Are you trying to make good law for life time employment contracts? Did you ask for punitive damages? Do you think that maybe it's time to recognize that "what's good for GM is what's good for America" may not be the catch phrase you thought it was? Ask Robert Bork - he had to make the same decision.

Originally posted at InjuryBoard by Pete Mackey

Replace "Deny & Defend" with "Honesty & Apology"

Pete Burns — Sun, 13 Sep 2009 12:41:06 GMT

Tying “Tort Reform” to health insurance reform could benefit both the doctors and the patients. The typical victim of a medical error wants fair compensation not a lawsuit. Most doctors who negligently injure a patient would rather that their insurance company quickly settle the matter than go through a lawsuit.

The University of Michigan Health System started a policy of “honesty and apology” in 2002. CBS reports that the policy change has reduced claims from 262 in 2001 to 83 in 2007. Fewer claims have allowed the system to drop its malpractice insurance cash reserves from 73 million to 13 million. http://www.cbsnews.com/stories/2009/09/12/eveningnews/main5306072.shtml

Wouldn't it be appropriate to reduce medical malpractice litigation by encouraging insurance companies to pay legitimate claims? After all, that is why doctors buy insurance.

Originally posted at InjuryBoard by Pete Burns

Misdiagnosis

Pete Burns — Mon, 17 Aug 2009 14:36:18 GMT

Kentucky Senator Mitch McConnell is yet another anti consumer republican trying to shift the focus from insurance reform by pretending that problems in health care are the result of “junk lawsuits”. A well researched editorial published by a leading newspaper in McConnell’s home state points out that McConnell’s claims are contradicted by empirical evidence. Lexington (KY) Herald-Leader (8/16). So long as opponents of health insurance reform misdiagnose the cause of our problem they will not identify a cure.

Originally posted at InjuryBoard by Pete Burns

Medical Malpractice: Universal health care & shifting the cost of negligence

Pete Burns — Wed, 15 Jul 2009 10:32:28 GMT

We have approximately 50 million Americans without health insurance. Health care cost following an accident or illness is the most common cause of bankruptcy in the United States. Cleary this is a system in need of change. Congress and the President are proposing universal health care legislation. Carefully crafted this legislation could be as beneficial to society as Social Security and Medicare.

Rutgers reports that Representative Dave Camp, the senior Republican on Ways and Means, said in connection with universal health care legislation that Republicans would focus on limiting liability lawsuits. http://www.reuters.com/article/GCA-HealthcareReform/idUSTRE56D6L120090714 That approach violates a fundamental belief of our society: people are responsible for their conduct. Relieving any negligent party of some or all responsibility for the harm they caused shifts the financial burden from the wrongdoer to the injured party. If I accidentally killed two of your cows what would you think of a justice system that only required me to pay you for one? A half a cup of justice is a half a cup of injustice.

Furthermore, shifting the consequence of negligence to the victim does nothing to solve the problems stemming from lack of health insurance. Malpractice awards are a minor component of health care costs amounting to less than 1% of the health care dollar The Medical Malpractice Myth by Tom Baker. The impact to the system of shifting the burden of malpractice to the patient would be minor but devastating to the injured individual.

Our leaders must resist political pressure to surrender the right of injured parties in order to obtain universal health care.

Originally posted at InjuryBoard by Pete Burns

South Carolina Surprise

Jon Lewis — Mon, 29 Jun 2009 21:36:08 GMT

It was reported this past week that South Carolina Governor, Mark Sanford, has had an affair. The media has treated this as landmark news. What I think would be landmark news is a politician who has not had an affair. Is this surprising? Should we expect anything less?

Why am I writing about this? Because I meet with clients every day who show surprise when the law doesn't go their way. What do I mean?

Let's take arbitration for example. Clients come into the office after being defrauded by a company or had a contractor treat them wrong. After reviewing the contract and seeing the arbitration clause, I tell them that they cannot sue the defendant in court. They have to arbitrate the claim. The reaction, "What?" "Are you kidding me?" "How can they do that?"

Or, what about when I have to explain Alabama's wrongful death law. In Alabama, when someone is killed by the negligence of others, you can only sue the other person or company for punitive damages, not compensatory damages. In other words, we have to argue to the jury that they must punish the defendant, not compensate the victim's family. That becomes VERY difficult when the defendant made a mistake such as running a red light or changing lanes without looking properly.

What is the respective clients' reaction to this? "What?" "Are you kidding me?" "How is that possible?"

What's the moral of the story? Pay attention. Pay attention to your spouse and to politicians, and maybe, you won't be surprised. Pay attention to your legislators and judges. Know what laws they are passing. Lobby your congressmen and let them know that these laws aren't right and need to be changed.

Originally posted at InjuryBoard by Jon Lewis

Alabama Judges

Jon Lewis — Sun, 24 May 2009 16:55:10 GMT

The Alabama Legislature recently passed a law which requires Judges to have minimum levels of experience before being eligible to run for office. Appellate Court Judges must have been a member of the Alabama State Bar for ten years. Circuit Court Judges must have five years of experience, and District Court Judges must have three years of experience.

The Appellate Courts consist of the Supreme Court of Alabama, the Court of Criminal Appeals, and the Court of Civil Appeals. In civil cases, Circuit Courts handle controversies involving amounts exceeding $10,000 (along with those between $5,000 and $10,000 if the parties file it in Circuit Court), and District Courts handle claims involving controversies over amounts less than $5,000 (in addition to evictions and some other claims).

Is this enough experience? I have been practicing law for 17 years, and only now would I feel comfortable in a Circuit Court position. In addition, I believe Appellate Court judges should be required to have experience as a Judge before being elected to an appellate position.

What levels would I recommend? I think Appellate Court Judges should have a minimum of fifteen years practicing law and one term as a Circuit Court or District Court Judge. Circuit Court Judges should have a 10 year requirement, and District Court Judges should have a five years of mandatory experience as an attorney. In addition, I believe judicial elections should be nonpartisan (not Republican or Democrat), and judges should be selected from a commission and appointed by the governor as it is done when a Judge retires mid-term.

What do you think?

Originally posted at InjuryBoard by Jon Lewis

Insurance Company and Corporate Names

Jon Lewis — Sat, 16 May 2009 15:35:40 GMT

Names may change, but the companies don't. In law school, we learned a phrase, "Form over Substance". What's an example? You can call a table a chair, but it's still a table.

In the Birmingham News today, it was reported that GMAC Bank is taking on a new name. GMAC Bank has now become Ally Bank. This is not a surprise given the fact that GM is about to file bankruptcy. Why would GMAC Bank want to be associated with a bankrupt company? They wouldn't.

Another example of this is 21st Century Insurance. Who is that? Surprise!! AIG. Can you believe it? AIG sold its insurance division to Farmers, and it's now called 21st Century Insurance. They don't want their company associated with AIG anymore. Are they really any different?

Why do I care? Well, a couple of years ago in Seattle, the U.S. Chamber of Commerce ran a full page ad in the USA Today stating, "Same leopard. New Spots". They were referring to the Association of Trial Lawyers of America. Our Group decided to change the name of the organization to the American Association for Justice.

Obviously, "Trial Lawyers" have been bashed in the media and by corporate interests, and our organization wanted to let people know what we stand for as opposed to what our name is. People can bash "Trial Attorneys", but who can bash "Justice?"

I bring this up because I want people to know that the corporate and insurance interests are no different. In fact, they are worse. Why? Their hypocrisy knows no bounds. They criticize trial lawyers as greedy and selfish when it is now abundantly clear where the greed lies. Given our current economy and mortgage crisis, who has exemplified more greed than huge corporations. Look at Enron, Tyco, HealthSouth, Madoff, Worldcom, AIG, and on and on. These companies, and their officers and directors, were fleecing the American public. Do they care? No, they just change their name and go on with government backing - our tax dollars.

On the flip side, what do trial lawyers do? We try to protect individuals from injury and fraud. Which side are you on? Corporate accountability or Corporate greed? I'm biased, but I'll take corporate accountability and side with trial lawyers any day of the week.

Originally posted at InjuryBoard by Jon Lewis

If You Want To Push Tort Reform, At Least Do It With Facts

Pete Mackey — Sat, 16 May 2009 10:23:41 GMT

When I hear something, I want to know it's true. We all do. Just saying something does not make it so. Jurors understand that. If you tell them in your opening statement that you will prove that the defendant ran a red light and collided with your client, they will need to hear or see some facts in order to agree with you. A picture of your clients damaged vehicle is one fact, but that only proves that a collision occurred. Without evidence tying the defendant to the collision, your claim comes up short. And so it is with anecdotal evidence used to support tort reform arguments ...

The same folks who fight to keep junk science out of trials use it when it suits their needs. Tort reform proponents say you can't use case studies to prove that the product was dangerous, you need a study which analyzes lots of case studies. Okay ... so why is fair to claim that because one knucklehead in the District of Columbia files a frivolous lawsuit, the system is falling apart? And why didn't those same complainers use that case as a call for judicial reform? The judge in that case appeared to be a knucklehead, himself. And if you are going to use a study, shouldn't you use one that is not funded by the folks who look to gain from it - a technique that Big Pharma has perfercted?

An "article" that I read this morning goes even beyond that - into the "creating news through advertizing" category. The headline caught my eye - "Study Shows Lawsuit Abuse Has Overwhelmingly Negative Impact On California Economy." The "study" was actually a survey of a California trade association for small businesses. Everything cited in the article was opinion - not a single cold, hard fact. It was merely a poll of how they felt. Come on - if I want opinion disguised as news, I'll watch FOX.

Originally posted at InjuryBoard by Pete Mackey