San Diego Injury Lawyer Blog

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" »

Posted by Ross Jurewitz | Permalink | Email This Post

Posted In: Legislation , Medical Malpractice , Tort Reform

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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" »

Posted by Ross Jurewitz | Permalink | Email This Post

Posted In: Legislation , Tort Reform

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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.

Posted by Ross Jurewitz | Permalink | Email This Post

Posted In: Tort Reform

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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.

Posted by Ross Jurewitz | Permalink | Email This Post

Posted In: Class Actions , Legislation , Tort Reform

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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" »

Posted by Ross Jurewitz | Permalink | Email This Post

Posted In: Tort Reform

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