Vox Populi

Posts Tagged ‘Lawsuit’

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.
Enhanced by Zemanta
Advertisements

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.

Enhanced by Zemanta

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.

Reblog this post [with Zemanta]

Exerpt from The Medical Malpractice Myth, by Tom Baker, an excerpt

In Uncategorized on December 11, 2009 at 9:45 pm

Medical malpractice premiums are skyrocketing. “Closed” signs are sprouting on health clinic doors.

A good book

Doctors are leaving the field of medicine, and those who remain are practicing in fear and silence. Pregnant women cannot find obstetricians. Billions of dollars are wasted on defensive medicine. And angry doctors are marching on state capitols across the country.

All this is because medical malpractice litigation is exploding. Egged on by greedy lawyers, plaintiffs sue at the drop of a hat. Juries award eye-popping sums to undeserving claimants, leaving doctors, hospitals, and their insurance companies no choice but to pay huge ransoms for release from the clutches of the so-called “civil justice” system. Medical malpractice litigation is a sick joke, a roulette game rigged so that plaintiffs and their lawyers’ numbers come up all too often, and doctors and the honest people who pay in the end always lose.

This is the medical malpractice myth.

This fear has inspired legislative action on a nationwide scale three times in my lifetime. The first time was back in the mid-1970s. I remember sitting at the dinner table listening to my father report what he’d heard at his medical society meeting: “Medical malpractice insurance premiums are going through the roof. Frivolous litigation and runaway juries will drive doctors out of the profession.” The answer, the medical societies and their insurance companies said, was medical malpractice tort reform—to make it harder for misguided patients and their lawyers to sue.

What the medical societies did not tell my father, or almost anyone else, was that their own research showed that the real problem was too much medical malpractice, not too much litigation. In the mid-1970s the California Hospital and Medical Associations sponsored a study on medical malpractice that they expected would support their tort reform efforts. But, to their surprise and dismay, the study showed that medical malpractice injured tens of thousands of people every year—more than automobile and workplace accidents. The study also showed that, despite the rhetoric, most of the victims did not sue. But almost nobody heard about the study because the associations decided that these facts conflicted with their tort reform message.

via The Medical Malpractice Myth by Tom Baker, an excerpt (emphasis added).

Reblog this post [with Zemanta]