We want to wish everyone a happy New Year! Now that 2012 is a thing of the past, what can we expect in 2013 as a Californian?
At the turn of the New Year, there were a total of 876 new California laws that went into effect. The new laws range from making picketing at funerals a crime (SB 661) to prohibiting college officials from requesting/requiring students to disclose access to personal social media accounts (SB 1349).
We want to wish everyone a happy New Year! Now that 2012 is a thing of the past, what can we expect in 2013 as a Californian?
Earlier today, my friend and New York medical malpractice attorney Gerry Oginski posted this link on Facebook to a New York medical malpractice verdict against a podiatrist. The verdict was noteworthy in that the jury awarded $3,000,000 for the victim’s pain and suffering ($1.5 million for past pain and suffering and $1.5 million for future pain and suffering).
This sparked a discussion amongst several lawyers from throughout the country about how inequitable tort reform laws are to the victim solely because of where they choose to live or receive medical treatment.
In New York, there is no tort reform cap on pain and suffering damages. Therefore, the $3,000,000 verdict, so long as it is supported by evidence, will not be reduced. However, here in California, we have MICRA–California’s tort reform measure which places certain limits and requirements on medical malpractice lawyers and their injured clients. Specifically, the California legislature has placed a cap on pain and suffering at $250,000. It does not matter how badly injured you are, whether you need constant medication to live with moderate pain the rest of your life, had 2 wrong limbs amputated, etc. California has decided that under NO circumstances is anyone’s pain and suffering worth more than $250,000 when injured by a doctor.
So, let’s assume that we have 2 people who have suffered the same injury and have the same prognosis. The only difference is that one was injured by a New York doctor and the other by a California doctor. The former victim will get compensated $3,000,000 for his pain and suffering while the other will only recover $250,000.
That is just not fair or right.
The tort reform mess gets even worse in other states, such as in Indiana. In the Hoosier State, total damages are capped at $1.25 million for all damages. This is true even if current and future medical treatment exceeds $10 million and lost wages are $3 million or more.
This inequality in results, based solely on geographic location of where the injury occurred, cannot stand. Tort reform has created this and many other unfair results for injured people, all in the name of saving society from runaway litigation costs–which have been proven time and time again not to exist.
One of these days, the public will hopefully wake up and rescind these unfair tort reform laws. Until then, these unequal results will continue.
George Washington once said:
Discipline is the soul of an army. It makes small numbers formidable; procures success to the weak, and esteem to all.
Letter of Instructions to the Captains of the Virginia Regiments [July 29, 1759]. The advocates of consumer rights, viewing the resources of defense firms and corporate defendants, can relate to the trepidation felt by the out-numbered and out-gunned Continental Army. Because of that disparity in resources, Consumer Attorneys of California (“CAOC”) consolidates the voices of consumer attorneys throughout the state to (1) preserve and protect the constitutional right to trial by jury for all consumers, (2) champion the cause of those who deserve redress for injury to person or property, (3) encourage and promote changes to California law by legislative, initiative or court action, (4) oppose injustice in existing or contemplated legislation, (5) correct harsh, unjust and oppressive legislation or judicial decisions, (6) advance the common law and promote the public good through the civil justice system and concerted efforts to secure safe products, a safe workplace, a clean environment, and quality health care, (7) uphold the honor, integrity and dignity of the legal profession by encouraging mutual support and cooperation among members, (8) promote the highest standards of professional conduct, and (9) inspire excellence in advocacy. This post is a multi-blog effort to inform consumer attorneys about CAOC’s value and encourage participation in CAOC through membership.
CAOC works tirelessly to protect or advance those causes of import to consumers and their attorneys in California. Often those efforts, though valuable, receive little fanfare. For example, CAOC recently sponsored SB 510, which affects the re-sale of what are known as “structured settlements,” in which victims receive financial compensation over a period of time for medical expenses and basic living needs, as determined by a jury. Before SB 510 was signed by the Governor, Courts expressed frustration at their inability to prevent the sale of structured settlements on terms that might ultimately lead to long-term financial hardship for the victim. Now, SB 510 gives judges the information they need to make a reasoned decision about the propriety of a structured settlement sale.
Measures like CAOC-sponsored SB 510 help protect the most vulnerable members of our society and ask for nothing in return. They exemplify the spirit of CAOC. However, CAOC is only as effective in its mission as its membership allows it to be. When consumer attorneys join the ranks of CAOC, its voice gains in power and clarity. But if consumer advocates sit on the sidelines, hoping to benefit from the work of others, CAOC is stretched thin, and we are all at risk as a result.
Now, consumer advocate bloggers from across the state are combining their voices to call upon each and every lawyer and firm that regularly represents plaintiffs to join CAOC, thereby strengthening the consumer’s first line of defense. The blogs participating in this unified call to action are:
- The Complex Litigator (H. Scott Leviant)
- The UCL Practitioner (Kimberly Kralowec)
- Bailey Class Action Daily (Matt Bailey)
- California Employee Rights Blog (James J. Peters)
- An Appeal to Reason (Donna Bader)
- California Personal Injury and Insurance Blog (Jonathan G. Stein)
- California Debt Blog (Jonathan G. Stein)
- TrialLawyerTips.com (Mitch Jackson and Lisa Wilson)
- California Injury Blog (John Bisnar)
- San Diego Injury Lawyer Blog (Ross A. Jurewitz)
- San Diego Car Accident Lawyer Blog (Ross Jurewitz
- San Diego Injury Accident Lawyer Blog (Ross A. Jurewitz)
- California Nursing Home Abuse Lawyer Blog (Walton Law Firm LLP)
- San Diego Injury Law Blog (Walton Law Firm LLP)
- California Personal Injury Law Blog (Norman Gregory Fernandez)
- Biker Lawyer Blog (Norman Gregory Fernandez)
- California Credit Law (Mark F. Anderson, Carol Brewer & Andy Ogilvie)
- Lemon Law Blog (Mark F. Anderson, Carol Brewer & Andy Ogilvie)
Show your support of consumers’ rights by joining and supporting CAOC. Together we can make an impact that we cannot make alone.
Well, it looks like the Nevada Medical Malpractice Reform Law may not see its’ fifth birthday–or at least its’ damage cap provision may not. Nevada legislators are considering overturning or raising the $350,000 cap for “pain and suffering” damages arising from medical malpractice.
The reason? Recent scandalous, unethical, and dangerous behavior by doctors in the state have led legislators to realize that damage caps hurt consumers while protecting negligent doctors.
We’ve taken a look at these developments and what it might mean for California’s MICRA damage cap of $250,000. You can read more about this California medical malpractice development at our San Diego personal injury lawyer website here.
About a month ago, we wrote about the emerging and ongoing efforts by Oklahoma Republican legislators and former medical malpractice defense attorney and Oklahoma Senate President Pro Tem Glenn Coffee (R-Oklahoma City) to initiate a new batch of tort reform measures. In our post, we argued that the Oklahoma tort reform plan does not go far enough because it does not require doctors to take substantive positions regarding their own negligence. You can read our entire post here.
However, the Oklahoma tort reform measure keeps growing additional reform measures–all of which hurt Oklahomans and are being sold to the public as a way to prevent “greedy plaintiffs’ lawyers” from profiting from “frivolous lawsuits”. Never mind the fact that the job of barring frivolous plaintiffs from recovering is the role of the insurance defense lawyer and judge, not the Oklahoma legislature. You can read more about the Oklahoma tort reform effort in this Seattle Times news story.
The most recent Oklahoma tort reform attacks include special class action rules for lawsuits brought against tobacco companies, a cap on non-economic damages (also known as “pain and suffering”) at $300,000, expert certification before a lawsuit can proceed, and requiring consumers to “opt in” rather than “opt out” of class action litigation.
One of the more egregious tort reform measures interferes with an injury accident victim’s ability to find a lawyer by placing compensation restrictions on that attorney. Contingency fees, meaning fees which are only collected upon a successful completion of litigation, are capped at 33 percent of the first $1 million dollars recovered under the proposed measure. For higher awards, the contingency fee award is limited at 20 percent.
The Daily Point of Orange County reported last Thursday, March 12 that the California State Senate is reviewing a new bill that would allow California and San Diego authorities to treat boating under the influence in our San Diego waters just like they would treat driving under the influence on our San Diego roads. If passed, the bill would allow San Diego and California authorities to suspend boaters’ licenses if caught boating under the influence. You can learn more in this Daily Pilot story.
The California BUI bill was introduced by California State Senator John Benoit that represents Senate District 37, just north of San Diego County. Senator Benoit’s bill will give the DMV the power to treat a BUI just as they would treat a DUI. Previously, the DMV had the power to do just that but last year, a court of appeals verdict deemed that they did not have the power to do so.
San Diego harbor officials and officials in other California counties would like to see the bill passed. They believe that even though boating is a recreational activity, there are still many responsibilities that a boater has. According to the California Department of Boating and Waterways there were 55 boating accident fatalities in 2007, half of which happened in Southern California. Also, about 20 of the 55 victims were intoxicated.
If you or a fellow boater are ever injured or killed in a San Diego boating accident, please call the San Diego boat accident attorneys at the Jurewitz Law Group at 619-233-5020 or contact them online here.
The Oklahoma legislature is currently considering a tort reform bill that would require people wishing to file a civil lawsuit for professional negligence (medical malpractice, accounting malpractice, legal malpractice, etc.) to obtain and attach an affidavit that the person has consulted with a qualified expert who has reviewed the facts of the case. The bill addresses all professional negligence but there can be no doubt that its’ main goal is to reduce the number of medical malpractice lawsuits by prohibiting lawsuits without expert support.
The affidavit must include a statement that the expert has provided a written opinion to support the allegation of professional negligence. If the affidavit is not filed, the lawsuit may be dismissed. You can read about the bill here.
The bill, House Bill 1570, is similar to a bill vetoed by Oklahoma’s governor last year. Six states, including Georgia, Minnesota, Missouri, Nevada, New York, and Pennsylvania, already require expert certification before filing a professional negligence lawsuit. The cost of having an expert review medical records and provide a written opinion can cost anywhere from $1,000 to $5,000 in most cases. The news story cites an example where an expert charged a medical malpractice victim $12,000 for his pre-litigation expert opinion.
The NewsOK.com news story prompted me to post this provocative tweet on Twitter, which then received several comments from Walter Olson of the legal reform website Overlawyered.com and Chris Davis of the Seattle personal injury law firm, the Davis Law Group.
California emergency room doctors have filed a class-action lawsuit against the State of California alleging that California’s healthcare system–stretched and burdened by its’ thin budget and high demand for services–is about to collapse on itself. The suit comes at a time when hospitals and emergency rooms are closing at alarming numbers, leading to limited emergency care for injured Californians.
The situation is only becoming worse with the State proposing $1.1 billion in cuts to MediCal, California’s low-income health payment system.
This is the second lawsuit brought by doctors against the State of California within a year. In the first lawsuit, led by the California Medical Association, doctors were able to obtain an injunction against the State’s proposal to cut MediCal reimbursement rates to healthcare providers by 10%. The State instead reduced current reimbursement rates by 1% to 5%.
Emergency room doctors have been particularly hard hit by the healthcare crisis since, unlike other doctors, they cannot chose to turn away low-income patients who rely on MediCal.
Federal preemption of state laws is a dry subject. It puts lawyers and law students asleep.
However, the consequences of preemption can be both real and significant.
The Supreme Court recently in Riegel v. Medtronic decided that a state tort injury actions for defective medical devices are barred when the FDA grants the device premarket approval through the federal Medical Devices Act.
With such a technical ruling, the national media has largely ignored the far-reaching significance of this ruling. However, MSNBC’s Keith Olberman recently took on the federal preemption issue in Riegel–and took the opportunity to bash Bush (shocker!)–in his usual one-sided presentation of facts.
Like Ronald Miller of the Maryland Injury Lawyer Blog, who drew our attention to the video, I’m not a big fan of Olberman. In fact, I’d probably agree to any derogatory term used to describe him and he hasn’t been funny or clever since his time on ESPN. But he deserves some credit for taking notice of this ruling.
In an effort to reduce car accidents due to negligence and inattentiveness, California has made text messaging while driving effective today.
A similar law passed earlier in the year made it illegal to drive while talking on a cellular phone handset.
In a separate law going into effect today, drivers are now allowed to fix GPS navigation units on the bottom left or right corners of the windshield. Under the previous law, it was illegal to mount a navigation system anywhere on the windshield.