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Posts Tagged ‘Motion (legal)’

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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