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Rick Shapiro
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Access Denied: Interest Groups and ‘Tort Reform’ Proponents Put Up Roadblocks to Court System

11 comments

Laurence H. Tribe, a professor at Harvard whose 40-year career includes serving as senior counselor at the Department of Justice for access to justice, recently made a speech declaring that justice in America needs to be not only preserved, but also restored. By restoring justice, Professor Tribe meant it’s time for lawyers to take a step back and analyze the structural problems in our legal system.

“Little of the energy of our profession goes to preventing systemic problems,” he said. Instead, more energy is spent on protecting turf, in the sense that the courts attempt to protect their jurisdictional authority rather than actually trying to solve problems.

“Unless we make a real difference in the way we as lawyers are viewed, we will likely hit a low ceiling when we try to squeeze money from state legislatures,” he said when discussing the dire problem of state courts being underfunded and overburdened with large case loads.

In particular, Tribe highlighted the need for access to justice for “the struggling middle class,” according to abanow.org.

Since our law firm features lawyers who actually go to court on a regular basis, we have witnessed, first hand, the deficiencies in our justice system. Special interest groups have successfully lobbied our state legislatures to get arbitrary caps placed on medical malpractice recoveries for innocent victims and some states are considering instituting “loser pays” laws. These laws are designed to scare away victims who don’t have access to a lot of money from pursuing a claim in court.

Insurance companies and big corporations love these types of laws and are major proponents of damage caps and health care courts since it allows them to save money, even when a victim is seriously injured by blatant negligence.

We agree with Professor Tribe that the middle class of America needs be placed in the forefront when conducting a review of how our legal system works. Far too many hard-working, salt-of-the-earth Americans are being deterred or disenfranchised by the way our court system works and major changes need to be considered.

PA

About the Editors: The Shapiro, Cooper, Lewis & Appleton personal injury law firm, which has offices in Virginia (VA) and North Carolina (NC), edits the injury law blogs Virginia Beach Injuryboard, Norfolk Injuryboard and Northeast North Carolina Injuryboard as pro bono services.

11 Comments

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    I agree I think these tort reform laws affect the working class the most. With states making a loser pay cost system it will deter my clients even further from making “legitimate” claims.

    Keep fighting the good fight and hopefully we will make a difference!

  2. Jim O'Hare RPLU AIC IAS says:
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    If I could point out two things:

    “Arbitrary’ caps are fitting for “arbitrary’ awards. What is the difference between pain and suffering anyway? If you name the same thing twice, it must be worth more.

    Every single award for non economics has been arbitrary, as there is no magic measuring stick, no magic scale. The “caps” are an arbitrary upper limit, not a starting point. How much is a pound of pain? What is 135k worth of pain?. States have caps from 250k to 1 mil plus. This is only one cause of action, caps are needed, we can discuss the upper limit? Argue for mandatory insurance and higher limits. Isnt a policy limit a cap?

    RE tort reform hurting the little guy and his ability to bring claims. Dont you take all cases on contingency? I have never seen plaintiffs pay as they go. Good cases find attorneys, crappy cases shouldn’t. Can we agree there?

    Want to talk about fairness? Then you cant forget how unfair joint and several is ! Or the fact that Doctors do not ever get a jury of peers. How about a college degree to sit on a med mal case?
    regards. Fair? or fair for some

    Jim O’HAre RPLU AIC AIS
    Director of Claims Medicus
    Austin Tx

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    Thank you for sharing this information and I agree with Tribe’s thoughts on the struggling middle class. In NC, the House recently passed increased civil justice fees and added new fees all together. This was right after they passed tort reform in part to control “skyrocketing” legal costs. Tort reform does nothing for individuals, it only benefits corporations. I read an interesting article yesterday that included actual studies. The studies showed that in Texas health care costs went up above the national average even after tort reform was instituted. Tort reform doesn’t work and doesn’t solve the problems its pronents intend it to solve.

    Pain and suffering, which are not the same thing, if you take the time to read the actual jury instructions, does not result in an arbitrary award. It’s based on the jury’s logic and common sense when they consider all of the evidence both sides bring before them. A cap on damages is based on nothing but the whims of legislatures who have heard no evidence but have received campaign contributions from the liability insurers who have to cut into profits to pay reasonable verdicts. Is it a perfect system? No. But we shouldn’t make it more imperfect for the sake of corporate profits over the rights and dignity of our fellow man.

  4. Jim O'Hare RPLU AIC IAS says:
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    Thanks Mike:
    Pain and suffering are the only subjective causes of action with a cash objective. Loss of earnings can be measured by a 5th grader.

    Common sense has nothing to do with valuing pain. What units are they measured in /with /on? What would be $135,000.00 dollars worth of pain? A hundred people with common sense will provide 100 different answers.

    Would a ballerina and a Navy seal from team 6 see pain on the same scale. Its what you feel that it is and nothing more. A guess

    Tort reform and the cost of health care are independant concerns that briefly overlap as Doctors deal with both.

    Is it really about rights and dignity or justice or just cash? Want to fix the high cost of health care- create competition and scrap McCarron Ferguson of 1945. it is that easy.

    What costs are the plainfiffs responsible for on the front end. Isnt Va a contingency state with mandatory 2 million dollar limits?

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    I suppose you are correct. Pain is purely subjective and cannot be quantified. Perhaps we should do away with all awards of noneconomic damages to reduce our costs even further. Since pain cannot be quantified, we should get rid of compensation for it altogether and let people deal with it themselves so we can all save money.┬áSince punitive damages are noneconomic as well, we can get rid of those to. Verdicts, regardless of the type of case, send a message to the community about what behavior is acceptable, but I suppose editing that message is better done by the legislatures than the judges and juries who have heard both sides of the story. I agree that pain is different to you than it is to me than it is to a SEAL. Since it varies so widely I suppose it’s only fair that we place limits on all cases involving pain to keep our costs down and things fair. I just wish someone could implement a system where a group of impartial individuals unswayed by politics, special interests and public pressure could sit down, discuss the merits of each claim, and debate for hours, days or even weeks what would be fair to both sides based on the evidence presented by both sides and the law. Until we get such a system, I suppose we should let the politicians decide what is best for each claim now and in the future.

    It’s true that many plaintiff’s don’t pay up front. Some do, but most don’t. Of course, it’s also true that the system already has in place offers of judgments and other rules designed to allow the defendant to recoup from the unvictorious plaintiff what they did pay up front

    A trial lawyer and an insurance claims adjuster can debate philosophy all day long. The issue can really only be solved by a fully informed society as a hole. The problem is, neither side gives the public the full story or really bothers to educate them outside of spewing rhetoric. This is why I agree with the information this blogger has shared. The system needs to be examined.

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    I love when we have a healthy debate on issues that go to the core of our civil justice system. Let’s remember that many of these access to justice issues don’t only involve personal injury but involve all kinds of civil cases including contract disputes, disputes between insurance companies etc. Just recently, a usually conservative Eastern District of Virginia Federal jury returned a $212 million verdict in a dangerous drug personal injury case. In that case, a 67 -year-old retired veteran had problems with movement (writer’s cramp) in his hand, and his doctor injected Botox as a method of relieving his pain. This is called off label use of the Botox medication, but the company fostered uses like this. The jury agreed with his attorney, who offered extensive evidence that Botox (botulism) if it gets out of the immediate area, can travel to the brain and cause permanent brain damage which is what this man suffers from now. His wife of 43 years cares for him as he is profoundly brain damaged and he cannot do activities of daily living on his own. The jury awarded $12 million in compensatory damages (what his attorney requested) and selected $200 million in punitive damages against Allergan ( a figure the jury selected for punishment damages), since the company makes millions if not hundreds of millions on Botox drug sales in the United States. The jury heard Allergan’s side of the story, that the Botox had nothing to do with his profound brain damage, but obviously rejected it. The connection to this article? The problem is that Virginia has an arbitrary cap on punitive damages of a mere $350,000. This is ridiculous because punitive damages are intended to punish a company for conscious disregard of a consumer or a victim’s health and safety. $350,000 will never deter this company from bad behavior.
    Going back to the topic of the article, access to justice should not be denied by various types of tort changes that deny persons equal access to the courts, or institute a loser pays system. The only way change occurs is when persons seek justice before courts on even an unpopular case and we cannot engage in methods that favor powerful corporations or those only with money in a bank account.

  7. Jim O'Hare RPLU AIC IAS says:
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    WE both focus on different sides of the coin and favor reform, ONLY as long as that reform benefits my side of that coin. vice versa – Fair statement?

    We can argue what the cap should be, but there needs to be one. Allergen was whacked for a $200 million punitive verdict; for what a doctor did with there fda accepted product. That is your example? Allergen is punished why? For making the product or not policing its use? Not placing an insert in the packaging not to be used for writers cramp?

    This is not my end of the business but this seems wrong.

    Timothy McVey used a GMC van to transport his destruction. Should GMC be responsible for that devastation? Just asking. Bad example?

    The cap of 350k is arbitrary, so is the method of valuing the pain. It is completely subjectively arbitrary , and that is my point. Can we agree there? 100% subjective, unlike any other cause of action. Cash is 100% objective.

    The wrong doer should be punished that is biblical justice and the cap, like it or not, protected Allergen, the deep pocket of cash, that did nothing wrong. Maybe they did, but I do not see it in your post.

    Please advise.
    Thanks Jim O’HAre

  8. Kevin Duffan says:
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    Jim, it’s nice to have your feedback on a forum that mostly consists of plaintiff’s injury lawyers. Clearly I am on the other side of most of your points, but like Rick said, a healthy debate is useful. It seems that you have some issues with the core of our civil justice system. “A jury of your peers” is never really a jury of anyone’s exact peers, nor could it be. What you end up with is a collection of people with diverse backgrounds who use their common sense and the jury instructions to interpret the evidence presented by BOTH sides at trial, and then collectively come up with a verdict. Again, though not a perfect system, it certainly is the best legal system in the world.

    So, why should there be any caps as to what a jury can award a plantiff? Juries can, and often do, completely reject a plaintiff and award nothing, finding for the defendant. Juries also will find for a plaintiff, but then award less than the totality of the medical expenses, essentially finding fault but still leaving the plaintiff in a financial hole. Why should the government, without hearing any of the facts on an individual case, be able to say your damages are only worth “this” much, no matter what the circumstances? Yes, juries use subjective and sometimes arbitrary methods to decide cases and their values, but both sides are given a fair shot to present their case.

    Also, I believe that most average citizens who sit on our juries are actually more inclined to trust a defendant doctor over an average citizen that may be suing. Doctors are generally respected and admired by the public… so I actually think they are given the benefit of the doubt more often than not, and it is up to the plaintiff to show a heightened degree of culpability greater than the slight tipping of the scale that is the standard under the law.

  9. Jim O'Hare RPLU AIC IAS says:
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    Thanks Kevin.

    Re peers, I do not think that you can gloss over this point. It really isnt about common sense, if the jury has nothing in common with the defendant. – Nothing! Zero frame of reference.

    This has always been the sharpest stick in the plaintiffs quiver, to obtain a verdict, the lack of specific knowledge in any jury pool.

    Re Peers -It was important enough to be mentioned when this country was formed. Why mention it al all? Why so dismissive of it. You would want a peer group wouldnt you?

    If Doc Welby robbed a bank, I would concede that everyone would be a peer. For Joe Jury to decide if the ampullae of Vater was compromised/damaged due to the cholelithiasis or was it the negligent and improper technique applied to the emergency retrograde cholangio pancreatatogram. Was it that technique that was allegedly causing/leading to a modified Whipple procedure and extended recovery. Then calculate the pain and suffering for all that, separate from what the normal amout of pain should have been.

    Wouldnt it be common sense to consider that maybe a genetic defect within the Islets of Langerhans caused the inital problem?

    Imagine that you are a physician for a second, facing financial ruin, after saving this patients life, you didnt hit the homerun, you hit a triple, and six jurors who never heard those words before, get to decide, based on their common sense, that you breeched the prevailing standard of care, in this community, causing “X” amount of pain as Damage. Then there is the suffering. Can you use the pain ruler to measure the suffering as well?

    The cap is a govenor on the golf cart to keep it from running away. Besides, what good is a verdict, you cant spend a verdict. Argue for higher limits. Dont dismiss the peer group. See Blacks for a definition, use any dictionary.

    My point is evaluating pain is entirely and completely subjective, totally subjective and impossible to duplicate. That is why a cap is needed, an upper limit, just for this only immeasurable measure of damages.

    REgards
    Jim o’HAre
    Dir of Claims Medicus Austin Tx

  10. Kevin Duffan says:
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    Jim,

    I’m not simply glossing over the idea of “peer” and I know what the definition of the word is, but to get a jury box full of medical professionals to decide if there was medical negligence isn’t going to happen. I don’t doubt that the vast majority of jurors couldn’t possibly have the background or experience to know the intracacies of surgery, but that’s why you have medical expert witnesses.

    Just my opinion here, but I think most people start with two basic theories: 1.) Doctors are smarter than most people, and 2.) Doctors shouldn’t make mistakes. Now you and I know that these absolutes aren’t fair, but I believe that’s what most people think. Because people value their health over everything else, they have extremely high expectations when it comes to those charged with “fixing” them. You end up battling between those who think that doctors can do no wrong (and that any litigation against a doctor is frivolous), and those that believe that because something went wrong, there must be negligence. I despite what people say during voir dire, at some level, I believe all people fall somewhere along that spectrum.

    So again, you have a group of people, with little medical knowledge, that sit in a box and hear both sides present their arguments. I think it is unfair to say that anytime they come back with a monster verdict it is because they just don’t understand what they’re doing… just like I can’t say that anytime they come back with a defense verdict they don’t understand the medicine. Putting governors on them, either direction, is not allowing them to fully do their job. And to say they should only be able to decide liability, but not damages (which essentially is what a cap does), is only letting them do half of their job.

  11. Jim O'Hare RPLU AIC IAS says:
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    Thanks Kevin:

    A “Peer” does not have to be a physician. How about someone with a college degree to sit on a med mal case.

    True story- I was on a jury panel and voir dire, the atty asked to describe yourself in one word. The case was a Doc that may have gone too far in examining this young lady. Who better than me to sit. My word was thoughtful, the ladies on each side of me offered. “Gullible” and “forgetful”. Not a joke- who got picked?

    Experts dont explain they sell. If an expert doesnt say what you need him to say, What do you do? You find another one to “explain”. I do.

    Let us not pretend that this is about justice, it is about cash. Winning a case for $50 bucks isnt a win is it?

    Doctors are dedicated. Why shouldnt docs make mistakes? You cant legislate – No Mistakes. Because they are mistakes. There was no yellow cake uranium in Iraq, that shouldnt have been a mistake. If Docs are smarter than most people, why a jury pool of not as smart people, and then call them a peer group.

    In 26 years I have had about 100 or so trials actually go to verdict, probably 50 settle at trial. I have been on the losing end about a dozen times. Why? Because I only try the slam dunk winners. Good cases settle. Those losses, the jury didnt get the story or the science.

    Defending a case is always more sophisticated and nuanced. The plaintiff case: Mrs Smith went into the hospital with two legs, now she has one. Explaining why this was an outstanding result from a cellular level is complex for the defense.

    A cap on the one cause of action is a protection to govern the non peer pool from a run away.
    Last Comment:

    Why wouldnt you want a smart jury? That is a tough question. I am just saying that I want one and that would be fair.Why dont you?

    regards
    Jim O’Hare Claims DirectorMedicus Ins Co
    Austin Tx