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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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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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Hot Coffee, torts and the Greater Good

In broken tort reform, debunking the myth, ideology, Think tank, undo tort reform on October 25, 2011 at 8:01 pm

It wasn’t until after I posted, what I thought was a rather eloquent comment, that I realized that the conversation over the documentary Hot Coffee over at the defense-attorney run site Abnormal Use had run itself out back in September and that, alas, my wise words were to go to waste.

So, I am reproducing them here:

I find both the initial “review” and especially the comments at times insight and always engaging.

A few items: a “review” turns to an apologetic when ideology intrudes. I fear this turns toward the latter.

The tort system, as one commenter has noted, works when a jury level-sets the community standard which, over time, settles into a remarkably fair system for recourse and redress. That is, if it is left to regulate itself. Already, at least in my state, there are court rules that define frivolous as well as the penalties for presenting one. Anything else is just biasing the judiciary, which helps no one.

But there it is, the communal tone that, yes, underlies my comments–the larger good should be noted. With “tort reform,” the right to redress malpractice (which is one of the only real means of eliminating harmful physicians) becomes harder, even to the point that rights are neglected, bad medicine continues and protective and beneficial policies and procedures go unaddressed.

Was the coffee too hot? No, the coffee, which is supposed to be “hot” was, actually, “scalding” (for those who work with the plain language of statute, this should not be too quickly overlooked).

I do not order scalding coffee, nor do I have a reasonable expectation of doing so. I have an expectation of getting hot coffee just as I have the reasonable expectation that when I see a physician I will receive care and aid. When this doesn’t happen, then my open avenue to recourse allows me, a single individual, to influence the system, however minute, toward a greater benefit for both myself and others.

George Bush Half-Truths to Control Courts: Discussions Medical Liability Reform | Political Video | George W. Bush Video Archive

In broken tort reform, debunking the myth, medical malpractice on December 11, 2009 at 10:22 pm

Ahh, the good ole days when boys who owned wanna-be ranches were able to pull the wool over everyone’s eyes:  sure there are weapons of mass destruction in Iraq, read-my-lips-no taxes, tort reform will save the economy, health care costs will be lowered by preventing injured people from being able to go to court…  Scary bedtime stories, no?  Well, seems Bush really was a true believer, or at least he seemed to believe everything he said.  Too bad no one else does anymore…  For those of you who don’t believe me, check out the creepy video below.  Can anyone give a shout-out to the white supremacist look-alikes in the crowd here?  That ought to tell you a bit about this clip before you even start. (Cause every good ole white boy knows that the women, poor, injured and ethnic minorities have no place in the courts, big ole important places where the “real” business is done right?)

Is this a KKK rally?  Just curious.

Based on a tip from Tom Baker’s book The Medical Malpractice Myth,” I found some video of then President Bush (43) arguing the following:

Many of the costs that we’re talking about don’t start in an examining room or an operating room. They start in a courtroom. (Applause.) What’s happening all across this country is that lawyers are filing baseless suits against hospitals and doctors. That’s just a plain fact. (Applause.) And they’re doing it for a simple reason. They know the medical liability system is tilted in their favor. (Applause.) Jury awards in medical liability cases have skyrocketed in recent years. That means every claim filed by a personal injury lawyer brings the chance of a huge payoff or a profitable settlement out of court. That’s what that means. Doctors and hospitals realize this. They know it’s expensive to fight a lawsuit, even if it doesn’t have any merit. And because the system is so unpredictable, there is a constant risk of being hit by a massive jury award. So doctors end up paying tens of thousands, or even hundreds of thousands of dollars to settle claims out of court, even when they know they have done nothing wrong.

He was, as we shall see, exactly, oppositely wrong.

For live footage, click the following: George Bush Discusses Medical Liability Reform | Political Video | George W. Bush Video Archive.

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