Vox Populi

Why fighting judicial campaign money matters

In broken tort reform, buying elections, debunking the myth, ideology, medical malpractice, MI Supreme Court, propoganda, Uncategorized, undo tort reform on June 13, 2013 at 2:57 pm

In response to an article posted on Mother Jones (“Secret Money Is Now Swaying State Judicial Elections“), I posted the following:

There is a strong “Why should I care?” aspect to judicial buying.

Here is a scenario: you go to your local hospital with an emergency.  Through negligence or error you receive injurious care.  You wish to sue.  You shop your case to local attorneys first, but few

lawsuit lotto

lawsuit lotto (Photo credit: Shira Golding)

show even slight interest.  Small town lawyers need medical care too.  You call the big firm that funds the state’s hockey team.  Their nurse indicates that your case is “not a winner” and wishes you luck.

You find out that because of malpractice caps (put in place to protect innocent doctors from “runaway juries” and “slick lawyers”), counsel is hesitant to take any case that is not an outright slam dunk.  No gray area cases or ones which a jury could be swayed.  The cost of litigation is just too high.  Counsel has to find an exact equal physician to testify (their expert will be put on a mini trial within the trial) before the trial, submitting an Affidavit of Merit (these start at $1500 and go up, depending on the hired gun).  Then this expert must testify at trial, and already your case is running up quite a tab (a contingency fee for a capped case starts at $25,000–which sounds like a lot until you break it down into costs and fees).  So, Counsel picks only obvious winners.  Others get a smile and well wishes.  Merit has little bearing.
So, with the Statue of Limitations running (two years is typical so that physicians don’t have the “fear of litigation” looming over their heads), you push on, convinced that your bad doctor should be ferreted out of the system; that he should not be harming others like he harmed you.
In order to file your case, you will need to, six months in advance, file a Notice of Intent.  This gives the doctor six months (actually, it gives his insurance carrier–he will not have any direct contact with the case until called to testify–and few ever make it that far) to prepare.  Medical records are shared (HIPAA is automatically waived and your medical records are shipped around from insurance office to Defense Counsel to their own expert witness hired guns).  You give up all claims to HIPAA protections when you move to sue.
The six months pass and Defense (as they are now known–usually a well-healed firm from a large city on retainer by the insurance company) establishes their contingency case, reading to throw motions for dismissal as soon as the actual Complaint is files (the Notice of Intent is really a preview or draft of the Complaint).  The Complaint is filed and the Affidavit of Merit is supplied (if there is more than one defendant–say the physician and the hospital for lack of adequate oversight–the cost of this “pre-litigation requirement” moves into the tens of thousands).
Defense will immediately file a Motion to Dismiss, attacking the Affidavit of Merit (mini-trial even before the trial starts–Defense strategy is to have the case thrown out before a jury ever hears it).
Your small case, up against the best legal counsel in your state, will have many options for the judge to dismiss it.  The legislators in your state, fearing that “good doctors” will seek less litigious states, have enacted (often at the heading of the insurance lobby) “tort reforms” (think of “Hot Coffee”) that give the judge ample discretion to head Defense’s claims.
Elected judges, backed by a packed “tort reformed” legal structure, biases your legal claim from the beginning.  Upon appeal, additional panels of judges, also elected, will determine the validity of this structure.  An appeal to the State’s Supreme Court, also elected, will “rule” along party lines almost exclusively.
You are still injured, probably for life.  The bad doctor is still “practicing,” injuring others who, themselves, will have no legal recourse.
Insurance wins (the don’t lower their rates in accordance to the numbers of cases filed–only 1 in 8 of valid cases are even filed–and few of them make it to trial–fewer still result in a verdict for the injured party).
Bad doctors are not held accountable.
Injured patients will seek the medical care for their injuries available to them: most often at the public’s expense (Medicare/Medicaid).
And if the judges are elected, then the legislation that has also been “influenced” by campaign money, headless of legitimacy, stands.
Medical Malpractice is the 6th leading cause of death, ahead of victims of gun violence.
With a purchased judiciary, there is no justice.
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It’s good to be the king

In broken tort reform, buying elections, Campaign Finance, medical malpractice, MI Supreme Court, undo tort reform on April 15, 2013 at 10:03 pm
English: A Photograph of the Michigan Supreme ...

English: A Photograph of the Michigan Supreme Court building located in downtown Lansing, Michigan. (Photo credit: Wikipedia)

When Mel Brooks had that as a running rif in his “History of the World, Part 1,” it was the excesses of the French Court he was lampooning (skeet shooting serfs was one gag).   The saying, though, applies to the Michigan Supreme Court today, with no revolution in sight.

The legal doctrine of Rooker-Feldman allows a state judiciary to be immune from federal oversight.  That is, a state court’s decision cannot be second-guessed by the federal court system…only the by the Supreme Court.

That is a fine system for upholding Jim Crow or enforcing Med Mal “tort reforms” (yes, I consider them to be of the same ilk).  Without a literal act of Congress (and good luck on that), a state judiciary can lay out a series of ruling that, because of stare decisis becomes the de facto law of the land.  If a case comes up through the appellate channel that challenges the precedent law-scape, just choose not to hear it. Because it takes 4 of 9 to hear a case, a stacked court (like the present Michigan Supreme Court) has virtual carte blanche to NOT hear any case that might upset the delicate balance that they have worked so hard over the last 20 years to erect.

With Gov. Rick Snyder‘s conservative appointment this last month, the “balance” of the court is now well in favor of keeping things exactly at the status quo

So, if you are too poor to sue, you better hope you live in a state that is NOT Michigan OR you physician you malpracticed on your ass lives in another state.  That way you can sue in Federal Court where they have determined that the Affidavit of Merit leads to injustice (as have numerous state courts–OK, LA, WA, IL, OH, NY, VT).

If you live in Michigan, and your physician was in Michigan, you either pay to play or you go home.  No other options.

If you appeal, you will be denied by stare decisis.  If you appeal to the Michigan Supreme Court, you get a one page letter stating “heard and denied” for your troubles.  Appeal that to the US Supreme Court, and you waste your time (they take up about 1% of the cases filed).

Forget about Federal Courts other than the Supreme Court of the United States, federal district courts will dismiss on Rooker-Feldman.

For the sitting Michigan justices, it is good to be the king.

For the insurance and medical groups who have financed their campaigns, who have paid over the years to have their ALEC laws enacted, it is really, really good to be the king.

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How expensive is it to file a Medical Malpractice claim?

In broken tort reform, debunking the myth, Get the Ca$h, ideology, medical malpractice, undo tort reform on May 9, 2012 at 7:31 pm

Inherent in any claim is the cost of bringing the action.  Who is going to pay is the question, cutting both ways, in every

The Barrister's Dream

The Barrister’s Dream (Photo credit: Bonnetmaker)

case.  Will the medical practitioner/institution pay its fair share for the pain, suffering and death it/they inflicted?  Will the plaintiff pay the cost of bringing suit in an environment where the odds are greatly stacked against her?  The real answer is too often on the latter.  The plaintiff, hurt, injured or dead (the survivors seeking justice) will, all too often, bear the costs of trying to obtain justice.

Please be advised that under Michigan’s ethical rules, all costs of litigation (copies, postage, deposition fees, expert fees) are the ultimate responsibility of the client, even under contingent fee arrangements.   All of our clients sign written detailed fee agreements (citation).

So, you walk into a Med Mal attorney‘s office, or are wheeled in or such, and immediately you are, gently it is hoped, brought up to realize a strict and brutalizing reality: if the stars do no align, you will be the one on the hook for the pleasure of the experience.

It is well thought, although incorrect, that the plaintiff attorney will bear the costs of bringing suit.  With that line of reasoning, the argument runs like this: since the costs of litigation are high, and the plaintiff’s attorney takes such cases on a contingency basis, then the plaintiff attorney will only take the “valid” or “non-frivolous” cases as the plaintiff attorney will be on the hook for all of the costs of bringing the case (copies, postage, deposition fees, expert fees).

That commonly held belief is incorrect.  Patients are victimized by their physicians and then by the judiciary.  Once bitten, twice bit.

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