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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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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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Another Tort retort

In broken tort reform, Get the Ca$h, ideology, undo tort reform on November 1, 2011 at 6:53 pm

I have previously posted about writing a comment on a defense-attorney led site defending the documentary Hot Coffee.

I did it again.   My thoughts are too good to only post once 😉 , so here they are:

I think, by denigrating the main use of the Liebeck case in popular culture, that you are missing the point of both its use in the documentary and in political discourse. For just the very reasons you cite (it was, duh, coffee–nothing to sue over), that case has a special power. For those of your ilk, it embodies the over-reaching of those out for a free ride, meal ticket, or the like. In short, an abuse or misuse of the court.

For others, it is an example of how the courts act as a corrective agent against abuse, corruption, and incompetence (especially medical personnel). Without the correction of a good tort case, industry and business may well still be employing 10 year olds to pull the coal carts, attend segregated schools and the like.

Back to my point…the hot coffee case, suing for being stupid, is the distillation of talking points: until one learns more about it. Point is, the tort in that case worked. McDonald’s altered its practice (which had hurt 900 others to varying, shall I say it, degrees) to the point that such “accidents” (one of McDonald’s arguments–echoed here–was that with such a high number of servings that the accident rate was statistically insignificant: until it happens to you or to one you love) have been reduced.

What you fail to point out is that “tort reform” does nothing to mitigate such suits. Caps on damages, reduced statutes of limitations, affidavits of merit, pre-suit notices, witness requirements, etc., these work to bias a case toward the defense.

“Tort reform,” rather, provides defense with a ready stable of tactics and defences which to attack a case, shielding their clients from a frontal assault. It is defensive jujitsu.

So, with that, I wonder why, as defense counsel, you should complain so much… Nothing could be better for business than more examples of suing for being stupid.

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.

Who will be the first to recuse herself from the MI Supreme Court?

In Campaign Finance, Court recusal, Get the Ca$h, MI Supreme Court, Uncategorized, undo tort reform on November 30, 2009 at 7:51 pm

In response to our recent article on the newly-enabled ability to ask (and actually have the teeth to receive) a judge’s recusal, prompted the following explanation.  It was too good to leave unread in the comments (Video can be found here):

The first case to be decided under the new recusal rule may be People v Alexander Aceval, where the recusal of former Wayne County Circuit Judge/now Michigan Supreme Court Justice Diane Hathaway is sought by the defense in a Motion filed 10-16-09.

Aceval’s attorneyDavid L. Moffitt alleges that a vertically integrated perjury conspiracyby Wayne County Circuit Judge Mary Waterstone, Wayne County Prosecutor’s Office Drug Unit Chief Assistant Prosecutor Karen Plants, and two Inkster Police Officers, wrongfuly convicted Aceval with perjured testimony in 2006. APA Plants and Judge Waterstone made secret, ex-parte transcripts of their operation of the conspiracy, that unexpectedly subsequently came to light.

Moffitt has also requested the appointment of a temporary alternate Justice to break the tie, remand to a Court of Appeals Special Panel, and disclosure of the circumstances of Justice Corrigan’s recusal, which Moffitt alleged may have been deliberately sought by the perjury-conspirators to “heighten the hurdle,” i.e. needing 4 out of 6 instead of 4 out of 7 Justices, to grant the Application for Leave. Details of the case, media coverage, and briefs and transcripts, are available at davidlmoffitt.com.

Aceval’s Application For Leave To Appeal the conviction to the Michigan Supreme Court was denied 9-25-09 in a 3-3 deadlock, across “party lines,” with Justice Corrigan recusing herself to testify as a character witness in a potential future trial of pending criminal charges against Waterstone, Plants and the officers brought by the Michigan Attorney General arising out of Aceval’s case.

Upon rehearing, Moffitt has moved to disqualify Justice Hathaway, alleging that her ojectivity could reasonably be questioned where scrutiny of wrong-doing in Aceval’s case has moved to the highest levels of Wayne County Prosecutor Kyn Worthy’s office, where Hathaway’s ex-husband Richard is Chief Assistant, and where she must directly rule upon the propriety of conduct of former Third Circuit, Criminal Division co-colleagues that took place when she served with them on that bench.

Briefs, transcripts, and media coverage of the case are archived at davidlmoffitt.com.

Healthcare Reform or Tort Reform?

In Campaign Finance, medical malpractice, MI Supreme Court, Uncategorized, undo tort reform on November 12, 2009 at 9:36 pm

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How Tort Reform Ruined Texas – PT. 2/2

In broken tort reform, Uncategorized, undo tort reform on November 12, 2009 at 9:20 pm

How Tort Reform Ruined Texas – PT. 1/2

In broken tort reform, Campaign Finance, Court recusal, undo tort reform on November 12, 2009 at 9:04 pm

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