San Diego Injury Lawyer Blog

We've written about the misguided instrument known as tort reform that is intended to help protect society from runaway litigation costs, but really only helps irresponsible companies and people from having to pay for the full extent of the damage they cause for others.

California is no stranger to tort reform measures, such as MICRA, which has been a boon to insurance companies in reducing their risks while still permitting them to charge exorbitant rates to doctors to protect them from medical malpractice claims. Now, in an effort to solve the California budget shortfall, Governor Schwarzenegger and the Republicans in the legislature are trying to force tort reform measures into law.

The most destructive of these measures is the implementation of a damages cap on pain and suffering. Damage caps are arbitrary and, in my opinion, illegally remove authority from jurors to determine appropriate damages in civil case. The arbitrariness of damage caps is made even worse when the cap is set at a ridiculously low level--$250,000 as proposed by the Governor.

The Governor's attempt to balance the budget on the backs of the injured is misplaced and unfair.

Continue reading "Will Schwarzenneger and GOP Hurt Californians With Tort Reform?" »

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.

Continue reading "The Arbitrary and Unfair Impact of Tort Reform" »

California judges recently received better guidance for how and when to apply a controversial exception to the collateral source rule, a rule that permits California injury victims to recover the full amount of medical bills incurred following an accident even if paid by a source other than the person who caused the accident (a "collateral source").

The clarification recently came through the editing of citations in the California Judicial Council Judges Benchbook, a reference source for judges hearing California personal injury cases. The edit makes it clear that defendants are not entitled to a post-trial reduction hearing. Rather defendants must meet a specific exception to the collateral source rule for the trial court to consider holding a post-trial reduction hearing.

You can read more about this development, as well as the insurance companies' efforts to misapply California case law, in this post at our San Diego personal injury attorneys website.

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.

We've written twice now about Oklahoma's current tort reform efforts led by Republican Senate President Pro Tem Tom Glenn Coffee (R--Oklahoma City), a former medical malpractice defense lawyer. You can read more here and here.

One of the big myths leading the Oklahoma tort reform movement and tort reform in general is that without tort reform, doctors will flee to other jurisdictions with tort reform. The argument goes that with tort reform, medical malpractice insurance rates go down and attract doctors--while high insurance rates drive doctors away.

The problem is that the data does not support the myth. That is the case again in Oklahoma. According to this Edmond, OK news story, the number of Oklahoma doctors is increasing even while the tort reform movement is claiming they are fleeing. In addition, the doctor owned medical malpractice insurance carrier, Physicians Liability Insurance Company, is in the best financial shape in it's three decade long existence. The company is posting record profits and will be the clear winner if the Oklahoma tort reform bill passes limiting injured medical patient's right to be compensated for injuries caused by their professionally negligent doctors.

Like any political issue, it is always important to look and investigate the real data underlying the tort reform movement. Is there a real reason to substantially limit injury victim's right to justice? If so, what is the purported benefit? And, last, is that benefit worth the cost? In almost all cases, the answer to these tort reform questions is "No".

If you or any of your loved ones has been injured or killed due to medical malpractice, contact San Diego medical malpractice lawyer Ross Jurewitz and the San Diego personal injury attorneys at the Jurewitz Law Group at 619-233-5020. You may also contact these San Diego injury lawyers online here.

Clayton Hasbrook, an Oklahoma City personal injury lawyer with the law firm Hasbrook & Hasbrook, recently cited our blog and our post about the Oklahoma Tort Reform bill.

Given that he represents the very people this bill will affect, Clayton has some strong opinions about the bill. You can read his opinions in his post: "Oklahoma tort reform makes its way out to CA".

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.

Continue reading "Oklahoma Tort Reform: An Unfounded and Misguided Attack on Injury Accident Victims" »

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.

Continue reading "The Oklahoma Expert Certification Tort Reform Bill: A Good Idea or Does It Not Go Far Enough?" »

Yesterday, Atlanta (Fulton County) State Court Judge Diane Bessen ruled that the Georgia cap on medical malpractice non-economic damages (usually referred to as "pain and suffering") violated the Georgia Constitution. The cap was enacted by the Georgia legislature as part of a sweeping tort reform bill in 2005, known as SB3.

In a 22-page order in the case of Nestlehutt v. Atlanta Oculoplastic Surgery, Judge Bessen ruled:

The Cap Violated the Right to Trial By Jury

"A limit or cap on noneconomic damages, however, invades the right to a jury trial by usurping one of the fact-finding responsibilities of the jury. . . . The imitations imposed by O.C.G.A. § 51-13-1 render the right of the jury to assess damages meaningless when, as here, their determination and award is altered by a legislative determination of what constitutes a “proper” award. The cap so interferes with the determination of the jury that it renders the right of a jury trial wholly unavailable."

The Cap Violates the Separation of Powers Doctrine

The Georgia Constitution states: “[t]he legislative, judicial and executive powers shall forever remain separate and distinct, and no person discharging the duties of one, shall, at the same time, exercise the functions of either of the others, except as herein provided.”

Judge Besson found:

"In effect, the statute completely disregards the jury’s deliberations and findings in determining the amount of damages which, in their sole discretion, fairly compensates the plaintiff. Instead, in all cases to which it applies, the cap substitutes a predetermined amount of noneconomic damages which the legislature has deemed appropriate. Moreover, it does so arbitrarily, without any consideration of the specific facts and circumstances of the case. Equally importantly, it does so without the option of a new trial for the injured plaintiff. As such, it unduly encroaches upon the judiciary’s constitutional right and prerogative to determine whether a jury’s assessment of damages is either too excessive or too inadequate within the meaning of the law."

The Cap Violates Equal Protection

Remembering that the US and Georgia Constitutions provide that everyone shall be subject to the equal protections of the law, Judge Besson wrote:

There is "no rational relationship between statute and the expressed government interest to “promote predictability and improvement in the provision of quality health care services and the resolution of health care liability claims … . it is a complete contradiction to state that the overall quality of healthcare would be improved by shielding negligent health care providers from liability. In fact, as recognized by other courts, a cap on noneconomic damages actually diminishes tort liability for health care providers and diminishes the deterrent effect of tort law. . . . While reduction of costs for its constituents is a legitimate legislative objective, there is absolutely no evidence that these objectives are achieved by imposing a financial burden on the most victimized of plaintiffs."

We are just digesting the Order and may add some additional thoughts later.

The question is, what does this increasing trend of state courts finding medical malpractice caps unconstitutional mean for California and its' longstanding cap of $250,000 under MICRA? Will California courts recognize this trend and review MICRA's constitutionality? Will California legislators and the Governor realize that (1) the never indexed for inflation cap and/or (2) the cap itself is unfair to Californians?

We will see.

Hat tip to Atlanta Medical Malpractice Attorney Ken Shigley for bringing this story to our attention.

A very good article appeared today on the anewscafe.com website explaining a common plight of California and San Diego medical malpractice victim: they can't find lawyers to take their legitimate injury cases!

The reason, pure and simple, is the California legislature artificially capped damages in medical malpractice cases more than 30 years ago when it enacted the Medical Injury Compensation Act of 1975 ("MICRA") which capped "general damages" (typically called "pain and suffering") at $250,000.

Given that the California Medical Board requires all doctors to publicly report all settlements and judgments over $25,000 and the generally stingy and aggressive nature of insurance companies to drive down claims, almost all medical malpractice cases go to trial. This means that it is very expensive--lawyers representing patients typically spend over $100,000 per case--and time consuming. Moreover, in order for the case to be worth pursuing, it must be a "cap" case (meaning that the jury will definitely award $250,000 if the doctor is found liable).

The practical effect of this law and the marketplace is that injured patients without "cap" cases find it nearly impossible to find a lawyer to help them even when their case has merit.

The Jurewitz Law Group, itself, is extremely selective about which medical malpractice cases it will accept. We typically refer 95% of prospective medical malpractice clients to other firms for a variety of reasons, including that the client does not have a "cap" case.

We hope that this economic reality changes soon. While $250,000 may have been an appropriate damage cap in 1975, it is not today in 2009 after factoring inflation. Injured patients with less than a "cap" case deserve justice just as much as those with "cap" cases.

The American Association for Justice (AAJ) recently released a report for the public describing the dirty tricks insurance companies use to deny or minimize the claims of injury victims.

The tactics described include denying claims, confusing consumers with insurance policy language and interpretation, and delaying claims for as long as possible.

It's no secret that doctors are key proponents of protections from medical malpractice lawsuits. That's understandable. Nobody wants to be sued and nobody wants to pay damages.

Then again, nobody wants to be hurt by their doctor's breach of the standard of care.

However, this story from West Virginia is very interesting. A West Virginia doctor underwent surgery last month only to afterward develop a severe infection, abdominal pain, loss of consciousness, and septic shock. Clearly believing that he had been the victim of his doctors' malpractice, he sued his doctors and hospital.

Now, as Ronald Miller of Miller and Zois' and the Maryland Injury Lawyer Blog points out, this doctor was undoubtedly in favor of medical malpractice protections and damage caps prior to his surgical injury. Is he now?

This illustrates an interesting point about tort reform: most are in favor of tort reform because they don't believe they will be seriously injured by the negligence of another AND they are more concerned about being sued so they wish for the "protections" tort reform provides--even though they cost that same person the protections the legal system provides.

As reported by the Wall Street Journal's Law Blog, former Supreme Court nominee, strict constructionist judge, and tort-reform advocate Robert Bork settled his lawsuit against the Yale Club after he fell while attempting to step onto the dais to speak.

The settlement terms were undisclosed, so little is known about the lawsuit other than those pleadings filed with the Court. However, a review of the complaint filed by Judge Bork's attorneys at Gibson, Dunn & Crutcher--who are typically defense counsel and presumably represented Bork because of his high profile--reveals two absolute truths about the case: (1) Regardless of whether the Yale Club was liable for Judge Bork's injuries, Judge Bork was seriously injured and required significant medical care to address his injuries; and (2) Judge Bork's lawsuit embodies many of the tactics and strategies that Judge Bork decried in his tort reform efforts.

Continue reading "Tort Reform Hypocrite Settles Slip and Fall Lawsuit" »

Doctors, like anyone, are not infallible. Every day, thousands of San Diegans put their trust, their bodies, and their health in the hands of doctors. Fortunately, there are many fine and skilled doctors in San Diego. However, that does not prevent incidents of medical malpractice from occurring--some of which result in lifetime injuries or death.

What most people do not realize is that doctors, unlike almost any other profession, are protected by a damages cap. Since 1975, California law has limited non-economic damages (e.g., pain and suffering) to $250,000. Under this law, NO medical malpractice victim's pain and suffering can be compensated more than this amount.

In 1975, the California legislature enacted the Medical Injury Compensation Reform Act (MICRA) installing this cap and also other protections for doctors found to have committed malpractice. So, for 33 years the cap has remained $250,000--despite the fact that $250,000 in 1975 dollars is now worth $1,012,500! From January 1975 to January 2008, the annual rate of inflation has been 4.33% and $4.05 in 2008 dollars will buy the same as $1 in 1975.

Why hasn't MICRA kept pace with inflation? One reason is that the legislature failed, and continues to fail, to provide a cost of living adjustment (COLA) for MICRA even though COLAs are included in a variety of laws, contracts, and almost any other long-term financial arrangement.

Continue reading "Injured San Diego Patients Deserve MICRA Reform" »

It is not often that our office reports on the legal happenings of other states. But this time it is important to let San Diegans know about several efforts to cap the percentage of a recovery contingency fee lawyers can receive--and to understand why such limitations are short-sighted and dangerous.

The contingency fee agreement is the primary manner in which average people can hire attorneys to litigate their interests. Under a contingency fee agreement, the client is able to hire an attorney who will work for them for months or sometimes years at a time without receiving payment for services until the attorney actually obtains a monetary settlement or judgment for the client. The more the attorney recovers for the client, the greater the fee he is entitled to receive. Further, if the attorney does not obtain a monetary recovery, the client does not owe the lawyer anything for the legal services provided.

Without the contingency fee arrangement, clients would be forced to hire attorneys solely by paying for legal services by the hour at rates of anywhere from $200 to $350 per hour, in most cases. Most clients, with legitimate cases, could not afford to hire an attorney under an hourly fee arrangement.

Last, the majority of clients--even those who can afford to pay for legal services at an hourly rate--prefer contingency fee arrangements.

Which makes Oregon Initiative 51 all the more dangerous.

Continue reading "San Diego Injury Victims Might Be Affected By Latest Fee Cap Initiatives" »

Yesterday, the Bush administration instructed all levels of the federal government that they cannot, under any circumstances, hire attorneys on a contingency fee basis. Reportedly, this does not happen very often but it has not prevented the tort reform supporters like The US Chamber of Commerce and US Chamber for Legal Reform from applauding the move.

The Chamber argues that attorneys should not have a financial stake when representing states.

Make no mistake. While the Chamber may have an interest in the small number of cases where states and the federal government use contingency fee lawyers to sue businesses, it is far more concerned about the larger number of cases where everyday, ordinary people hire contingency fee lawyers. In the aggregate, these cases presumably add up to a greater amount of damages.

Traditionally, there are two methods to pay for an attorney:
1. On an hourly basis at rates of $200 per hour and up, plus advancing costs; or
2. On a contingency fee basis with the attorney being paid a percentage of any money recovered and the attorney advancing costs.

It's crucial to the function of the legal system that everyone with a meritorious claim have access to the legal system, regardless of cost. Imagine a world where the victims of rear-end car crashes and victims of benzene poisoning like those in Erin Brockovich can't hire a lawyer to fight the lawyers hired by insurance companies or big business because they can't afford hourly rates.

Contingency fees allow clients to hire an attorney when they otherwise could not. Clients do not need to come up with a retainer and pay the monthly invoices as they come due.

Contingency fees also allow clients to distribute the risk with their attorneys in more favorable terms. When a client pays an attorney by the hour, the attorney gets paid--regardless of result. If the client loses or does not do as well as hoped for, the attorney gets paid for his time anyway. On the other hand, if the client loses, the attorney gets paid nothing.

Last, it's weird that the Chamber (read: Republican big-business supporters) are against clients having the freedom to enter into contingency fee agreements. These are the same people who want the free market to guide economics and regulations. If a client determines that it is best to hire an attorney by pledging equity in their case, who is the Chamber to say that is wrong?

Nobody, that's who.

Earlier today, the California Assembly rejected AB 1505 by failing to pass it out of the Assembly Judiciary Committee.

The bill received so little support that when Van Tran (R-Costa Mesa) moved the bill, it did not receive a second and therefore failed without a vote.

The Civil Justice Association of California (CJAC) continues to press the meat of AB 1505 through a costly initiative process.

Assemblymember Nicole Parra (D-Hanford) stated, in bringing the bill, that it would do nothing to prevent legitimate class actions from being brought. However, she hoped that it would prevent lawyers from gaining large verdicts and plaintiff class membes seeing little compensation as a result. She further stated that AB 1505 attempted to align state with federal law.

However, according to the Consumer Attorneys of California (CAOC), AB 1505 would undermine the civil justice system by preventing an ordinary citizens' right to bring a class action lawsuit in California. Among the provisions of AB 1505 that CAOC objected to:

1. The bill would have required each individual class member to prove their individual claim and extent of damages. Most importantly, it would have required trial evidence on both the plaintiff and defense side to be "substantially the same".

2. The bill would have given the defendant the right to bypass class counsel to communicate directly with class members to make a settlement offer directly to the defense. This would have bypassed and destroyed the attorney-client relationship. It would have also allowed the defendant to make low ball offers and use threats to force class members to disregard their counsel's advice.

3. The bill would also have stayed discovery of the merits of the case until the class was certified. This provision ignores the fact that the discovery process allows plaintiffs the ability to prove the existence of a broader class by being able to identify potential class members.

Our office is pleased by the defeat of this bill. Tort Reform supporters fail to recognize the need for class action attorneys to represent the rights of numerous consumers who have been wronged by the illegal acts of large companies. The importance of class action attorneys has been heightened in recent decades due to the reluctance of the government to enforce its' own laws, leaving it to class action attorneys as "private attorney generals."

If there is an objection to class action attorneys being paid for their services, it should be that we--as taxpayers--have already paid the government to do the job through our taxes and they have failed to do so.

Most of you probably have heard about Judge Pearson, who is suing a Washington, DC area dry cleaner for $67 Million over the loss of three pants. Most are shocked and outraged by the amount of money being sought by Judge Pearson. Some have used the opportunity to attack the civil justice system and call for tort reform.

I want to take a slightly different tack than others discussing this case and use this opportunity to discuss the real winners and losers from sensational lawsuits like this one.

The real winner, at this point, seems to be big media. Whether it is The View, ABC News, or CNN, it seems like everyone is making money talking about this lawsuit. And why not? I mean, this is a $67 Million lawsuit! That's what it says in the complaint. That's real, huge, life changing money!

In reality, the damages attainable from this suit--assuming that liability on the part of the dry cleaner exists--are limited to the evidence at trial. It doesn't matter whether the complaint states that the lawsuit is seeking $10 or $10 Million. In other words, the amount stated in the complaint is irrelevant.

Continue reading "The $67 Million Pants--Good for Selling Newspapers, Bad for Consumers" »