Category Archives for "Tort Reform"

2 No Cap — No More

A judge in Fulton County, Georgia, has struck down the cap on monetary awards in a medical malpractice case.

Superior Court Judge Marvin Arrington wrote that the cap was unconstitutional because it allowed protection to the medical profession that was not allowed to other defendants such as manufacturers of defective products.

"It is absurd to say that if you get injured by a product that the jury can decide your noneconomic damages, but if you get injured by medical malpractice, it can’t," said Trent Speckhals, one of the lawyers for Cheon Park, the plaintiff in the case.

Judge Arrington’s decision only affects this case but, if appealed, will open the door for the Georgia Supreme Court to overturn the caps for malpractice cases.  If not overturned it would effectively mean that only the wealthy could get large settlements because they have large incomes that could be lost because of malpractice.

"The statute effectively puts substantial limitations on the rights of the poor and middle class to recovery while leaving the right to virtually unlimited recoveries unimpeded for the wealthy," Arrington said. "The disabled manager of a hedge fund, a corporate CEO, an entertainer or such other person whose income is in the tens of millions of dollars has a claim under Georgia law that would dwarf the amount awarded in any case for pain and suffering."


12 Silent Tort Reform: Watch out for Premption

People over Profits.  That is how it should be.  It isn’t.

So now pharmaceutical companies and any company regulated by the federal government want to be able to keep you out of state court.  Why?  They say that because the federal government has approved a drug or medical device or consumer product, that it therefore is "safe".  We all know that is not necessarily true.  (It is also not a logical conclusion).

But by making this argument cases may only be able to be filed in Federal Court.  This is a BIG bonus for corporations, because it reduces where they have to defend lawsuits.  It also robs State’s rights in my opinion.

The worst part of this is that it is not even always a federal law that makes this changes.  If an agency approves the product that may be enough to get the cases out of state court.

Kiss Your State’s rights goodbye.

NEW ORLEANS (AP)— If you think the prescription drug you took for headaches caused your heart attack, the Food and Drug Administration says you can’t sue the maker for injury if it met agency standards.

The Consumer Product Safety Commission (CPSC) says you can’t sue a mattress maker if your mattress bursts into flame despite meeting CPSC standards. Companies making sport utility vehicles would get similar protection from suits brought by people injured or the families of those killed in rollovers under National Highway Traffic Safety Administration (NHTSA) proposals for stronger roofs.

Plaintiffs’ attorneys call it "silent tort reform." But it’s part of the tension that’s existed since the nation’s founding: conflict between state and federal law.

If they clash, state laws give way. That’s in Article 6 of the Constitution. But in areas where there is no federal law, federal courts must defer to laws of the state where a lawsuit is heard. That includes product liability.

A developing body of judicial opinion could place new limits on the rights of those who buy or use products, consumer advocates say. It also could mean the savings of billions of dollars by companies insulated from lawsuits.

What’s riling plaintiffs’ lawyers, consumer groups and some regulators is agencies’ assertions their rules override state product-liability laws. Most such claims are rooted in statements in the introductions to their rules, not the rules themselves.

"These pre-emption preambles may be only the beginning," New York University law professor Catherine Sharkey wrote in the DePaul Law Review.


Here’s how a malpractice cap affects a verdict

In a recent medical malpractice verdict in Indiana a jury awarded $3.7 Million to a young person with cerebral palsy.  Indiana state law reduces that amount to $2 Million under a law that caps verdicts.

Hmmm.  So what that means is that the insurance company gets to fight tooth and nail to keep from paying out and when they lose big then they are still protected.  Their maximum risk is $2 Million.  So who then bears the cost of the medical mistake… The victim.

Here’s the Article:

A child was born in 2001 via c-section and is now suffering from cerebral palsy. Her family believes it was a lack of oxygen during birth and that doctors were too slow in her delivery. A jury in Indiana agreed and awarded them $3.7 Million in the medical malpractice case.


1 Here we go again.

One big verdict and you start seeing stories like this.  You have to dig deep into this article to see the reality: 

Insurance Companies control trial tactics and settlement negotiations.  The insurance company in this case could have settled this case for $2 million.  That is less than 10% of the verdict.  Instead, they chose to go to verdict and they lost.  I bet the doctor wanted to settle.

The second point is that even though the insurance company lost, it will likely settle for an amount significantly less than the trial verdict, so the $38.5 million dollar verdict is a little misleading.

Here’s the article:

A Stamford jury’s decision to award a record $38.5 million to the parents of a boy born with cerebral palsy has reignited debates over medical malpractice rates, insurance company tactics and the cause of cerebral palsy.

Continue reading

2 Lawsuit filed to Challenge Texas Medical Malpractice Caps

The Malpractice Cap Law in Texas is just SO arbitrary.  Now, I don’t believe that malpractice caps actually drive down insurance rates.  (That position is probably no surprise to anyone reading this as I am a plaintiff’s lawyer)

Here’s the thing:   If you set caps at a hard number then all you do is cap the amount that insurance companies pay.  Look at California.  They set malpractice caps years ago and they have never changed them for inflation.  So rates go up because of inflation, but the payout to victims can never go up.  What that does it puts the burden of medical mistakes on the injured, the victims of medical malpractice.

Here’s part of the article in Texas:

Former Dallas Cowboy Ron Springs, who has been in a coma since the fall after surgery to remove a cyst, is one of 11 plaintiffs challenging Texas’ medical malpractice cap in a lawsuit filed Monday.

The lawsuit, filed in the U.S. District Court for the Eastern District of Texas in Marshall, challenges the 2003 Medical Malpractice and Tort Reform Act, which limits awards in Texas. The lawsuit asks the court to declare the cap unconstitutional.

The law caps awards for pain and suffering at $250,000 for doctors, $250,000 for hospitals and $250,000 for nursing homes and other institutions for a maximum of $750,000 per claimant.

Source:  Houston Chronicle

Additional up to date information:  Medical Malpractice Law Blogs

1 Doctor and Lawyer: Back and forth on tort reform

I was looking at an article on John Ritter’s death today.  There was a lawsuit that followed alleging medical negligence.  As part of my research I came across this blog entry from another lawyer and went off on another tangent.

There is a great point counterpoint that goes on in the comment section of this post.  If you are at all interested in this subject, then I recommend reading the post and then all the way through the comments.  Interesting.

2 Profit or Charity. Virginia is deciding

The Virginia supreme court recently heard arguments about whether physician foundations could get immunity from medical malpractice lawsuits because of their charity work.

The state Supreme Court heard arguments yesterday that pitted the rights of patients injured by negligence against the medical community’s need to preserve its financial well-being in the face of growing indigent-care demands.

Lawyers on both sides of the issue have described it as the most significant matter taken up by the court regarding medical malpractice since 1990, when the Virginia Supreme Court upheld the state’s limit on malpractice awards.

If successful, tax-exempt physician foundations in Virginia employing about 1,200 doctors and supporting the state’s three medical schools could win immunity from malpractice suits because of the charitable care they provide the poor.

Medical schools claim they are covered because of the charity work they perform while plaintiff lawyers are objecting and say that granting this immunity will shield corporations whose real motive is profit not charity.


Move Medical Malpractice Out of the Courts?

The National Center for Policy Analysis has released a report proposing that medical malpractice cases be moved completely out of the legal system and be handle by contract. 

The idea appears to be that you agree with your doctor or other medical care provider ahead of time what the value  of your life or injury would be.  Then if you are injured  in some way you get paid based on that contract.  So how does the doctor pay for that agreed to injury amount?  They buy insurance, but this time the insurance company knows what the max payout will be because of the contract.

Will this reduce lawsuits, probably. 
Will it fairly value malpractice claims?  I doubt it.
It sounds like it will allow insurance companies to more concretely lock in their profits as opposed to their taking on risk.  So is it about risk or profits.

In any event you can read the about the NCPA report at this link.  Medical Malpractice suggestions