Article from Ken Conner on Tort Reform

Tort Reform: Remedy or Red Herring?
By Ken Connor

“In the state of nature… all men are born equal, but they cannot continue in this equality.  Society makes them lose it, and they recover it only by the protection of the law.”
- Charles de Montesquieu

In the ongoing debate over health care reform, critics on the right are increasingly citing the lack of tort reform as a major deficiency of the current proposals floating around the halls of Congress.  Instead of focusing on truly conservative solutions to our nation’s mounting health care crisis, Republican lawmakers and pundits are playing the same old song-and-dance—blaming ballooning health care costs on trial lawyers.  This red herring tactic is a classic example of politicians trampling principle in pursuit of politics.  In this case, Republicans moonlighting as “conservatives” seek to use tort reform to shield corporate malefactors (who also happen to be their financial benefactors) from full accountability for their wrongdoing.

In so doing, they are undermining a bedrock principle of our nation’s justice system.
For years, Big Business and the U.S. Chamber of Commerce have spent millions of dollars in a public relations campaign aimed at demonizing trial lawyers, portraying them as unethical con-artists out to game the system.  These corporate interests have a vested interest in keeping the tide of public opinion running against trial lawyers because it deflects attention from the widespread problem of negligent and reckless conduct that injures consumers.  This “shoot the messenger” tactic not only enables businesses to avoid financial accountability for wrongdoing—it deliberately undermines the people’s civil liberty.

The reality is that trial lawyers are the people’s first line of defense to secure redress of grievances for private or civil wrongs committed against them.  The most highly publicized of these kinds of cases usually involve David and Goliath-type scenarios—think of the massive frauds committed by WorldCom, Enron, or Bernie Madoff and you get an idea why trial lawyers are essential to securing justice for those wronged at the hands of well-heeled rogues with deep pockets and limitless legal resources.  And yes, sometimes these cases involve substantial claims against doctors or hospitals accused of malpractice.

Despite unfair characterizations to the contrary, medical malpractice is no joke.  Every day thousands of Americans walk into doctors’ offices, emergency rooms, and operating rooms trusting their lives to the expertise and integrity of the medical system.  Errors in diagnosis, misread charts, medication errors… all can cause irreparable harm to their victims.  And these kinds of accidents happen often—far more than Republican advocates of “reform” are willing to admit and far more than most people realize.  According to several studies conducted over the last decade, up to 98,000 people die every year as a result of an estimated 15 million instances of preventable medical errors.  These statistics place death by malpractice as the 6th leading cause of death in the United States.

For the victims and their families, the tragedy inflicted as a result of medical malpractice is very real, and the process of seeking a just remedy can be overwhelming.  It is for precisely these kinds of situations that the 7th Amendment to the United States Constitution guarantees all Americans the right to a fair trial before a jury of their peers.  This right is a foundational principle of our civil liberty and should be a core tenet of conservatism because it affirms the responsibilities citizens have in a free society and the accountability of all before the law.

Nevertheless, the importance of the civil justice system and the right to trial by jury is poorly understood by many conservatives because trial lawyers are constantly demonized by special interests seeking to evade justice.  Many Republicans have been wrongly led to believe that tort “reform” is some kind of Reaganesque trickle-down solution to the high cost of insurance and the high cost of medical care.  The facts, however, don’t support such a notion.  Skyrocketing insurance premiums are not a result of malpractice litigation, and the high cost of medical care stems more from “offensive medicine” (profiteering by doctors seeking to make an extra buck), rather than “defensive medicine” purportedly resulting from fears of malpractice suits.

In 2007, the Congressional Budget Office estimated that costs associated with medical malpractice claims only amounted to 2% of overall health care spending.  Furthermore, multiple studies suggest that the high cost of medical insurance has virtually no correlation with the frequency or amount of malpractice payouts but is actually a result of insurance companies playing the market and—in some cases—intentionally misrepresenting the influence of malpractice payouts in order to keep premiums high.  Doctors are not fleeing the medical profession from fear of lawsuits, and those who are sued for medical malpractice are often permitted to continue working with little to no professional censure for the harm they inflicted.

The truth is that corporate moguls push for tort reform because they have little use for a civil justice system that puts the little guy on the same plane as the rich and powerful. These so-called fiscal conservatives don’t like equal justice.  They want preferential treatment—something they are accustomed to getting from politicians because of their hefty campaign contributions.

Conservatives need to educate themselves about the importance of a civil justice system that protects everyone and treats all litigants—rich and poor alike—as equals before the law.  Furthermore, true conservatives ought to resist attempts to federalize tort law and impose one-size-fits-all solutions to “problems” that are, in large part, the fictional creations of special interest lobbyists seeking to enrich the coffers of their wealthy clients.  Any change in medical malpractice laws should occur at the state level and be tailored to meet conditions in the individual states.  The people in Topeka may approach the same problem differently from the folks in Tallahassee.  They may be experiencing different problems, or perhaps, none at all.  In any event, the residents of Attapulgus, Georgia don’t want Chuck Schumer and Olympia Snow dictating the remedy they can pursue when a doctor leaves a pair of scissors in the site of their incision or causes avoidable brain damage to their newborn.

Tort reform subsidizes wrongdoing by shielding wrongdoers from accountability for the consequences of their misconduct.  It is an affirmative action program for corporate miscreants.  Incorporating tort reform into health care reform will do nothing to cut medical costs.  It is, however, guaranteed to result in more, not fewer, cases of medical malpractice. Furthermore, federalizing tort laws will only result in the accretion of more power in the hands of the central government and the emasculation of the rights of states and individuals.

If Republicans [or other supporters of tort reform] are truly sincere in their commitment to protecting the rights and liberties of the American people against more and bigger government, they should resist any attempt to federalize the laws of medical malpractice.

http://www.ajustsociety.org/press/article.asp?pr=5449

Tennessee Supreme Court Issues New Comparative Fault Opinion

The Tennessee Supreme Court has ruled that a plaintiff who lost a medical malpractice case in federal court was not prevented from bringing another lawsuit against a doctor employed by the state, even though the jury in federal court assigned no fault to the non-party physician in the federal court case.

The Court held:

We have determined that the proceeding in federal court did not provide Ms. Mullins with a full and fair opportunity to litigate her medical negligence claims against Dr. Mejia. It is undisputed that Ms. Mullins could not, as a matter of law, recover monetary damages from either Dr. Mejia or the State in the federal proceedings. Common sense also dictates that it would have been foolhardy for Ms. Mullins to press her claim that Dr. Mejia had been negligent in the federal proceeding because doing so would have diluted the strength of her claims against the remaining defendants and would have profited her little in later proceedings against Dr. Mejia. [Footnotes omitted.]

You can read the entire opinion of Mullins v. State of Tennessee by clicking [HERE].

This opinion provides new guidance in a world where litigation against doctors is being constricted daily. It is nice to see a family afforded a chance to litigate and receive their day in court.

Bankruptcies of auto manufactures may prevent lawsuits by injured persons

The bankruptcies of Chrysler Group LLC and General Motors Corp. have thrown scores of injury lawsuits into what one expert called “murkier waters” of the law’s treatment of future tort claims. In hopes of preserving consumers’ rights to recover damages, consumer organizations and plaintiff lawyers are petitioning the Supreme Court to preserve current and future product liability claims against Chrysler. However, experts on the issue are sharply divided over whether bankruptcy laws allow for such claims.  [Law.com]

This would be a blow to many persons injured.

Can I help you in a case? If so, call Ed Wallis at (901) 527-2125 or send me an E-MAIL. You can also fill out this case evaluation form:

Interest awarded in Exxon cases

The 9th Circuit Court of Appeals on Monday ruled in favor of Exxon Valdez plaintiffs seeking hundreds of millions of dollars in interest from the oil giant. In a unanimous ruling, the court found interest on the reduced $507 million punitive damages award should run from the original 1996 verdict rather than from the Supreme Court’s 2008 decision in the matter. Additionally, the court concluded that Exxon was not entitled to reimbursement for its appeal. [Law.com]

This will result in another $500 million (approximately) being awarded to the plaintiffs, mostly fisherman and fishing companies damaged by the tragic Exxon Valdez oil spill. Down from a $5 Billion dollar verdict, it’s about time these good men and women received a good ruling.

Can I help you in a case? If so, call Ed Wallis at (901) 527-2125 or send me an E-MAIL. You can also fill out this case evaluation form:

New blog to read

I recommend you check out and review Jon P Groth’s trial lawyer blog at http://jonpgroth.com/,  it is filled with legal information that could be helpful to you. Jon is a fellow member of the American Association of Justice with me, and I highly recommend you take some time to visit his site and bookmark it for future reading.

Millions of baby cribs recalled; two lawsuits already filed.

The law firm of Glassman, Edwards, Wade & Wyatt, P.C. is announcing that 1.59 million baby cribs have been recalled by privately-owned Delta Enterprises. The firm is reviewing potential cases for the drop side cribs that may have been linked to at least two infant deaths.

The U.S. Consumer Product Safety Commission (CPSC) issued the recalls in cooperation with Delta Enterprise Corp.after findings that 985,000 cribs were manufactured and packaged without safety pegs and an additional 600,000 cribs have a safety peg failure defect.  Reports show that the missing safety pegs can lead to the disengagement and detachment of crib locks, creating a dangerous gap. The gap can cause entrapment and suffocation hazards to infants. As of October 21, 2008, there were two reports of infant deaths, two entrapments and nine disengagement incidents in cribs with missing safety pegs.

FIRST RECALL

One recall is for 985,000 cribs manufactured by Delta Enterprise Corp. in Taiwan or Indonesia with the “crib trigger lock with safety peg” drop side design. These cribs were sold at retailers including, but not limited to, Walmart, Kmart and Target.com from January 1995 to September 2007. They may also be found at secondhand retail stores.

Model numbers subject to the recall are: 4320, 4340, 4500, 4520, 4530, 4532, 4540, 4542, 4550, 4551, 4580, 4600, 4620, 4624 (production dates 01/06 thru 11/07), 4640, 4660, 4720, 4735, 4742, 4750 (production dates 01/95 thru 12/00), 4760, 4770, 4780, 4790, 4820, 4840, 4850, 4860, 4880, 4890, 4892, 4900, 4910, 4920, 4925-2, 4925-6, 4930, 4940, 4943, 4944, 4947, 4948, 4949, 4950, 4958, 4963, 4968, 4969, 4980. Check the mattress support label for the crib model number and country of origin.

SECOND RECALL

The second recall is for 600,000 drop side cribs manufactured by the same entity, Delta Enterprise Corp.  These cribs have the “crib trigger lock with spring peg” drop side design. These cribs were sold at retailers nationwide in the period from January 2000 to January 2007.

Model numbers subject to the recall are: 4340, 4343, 4520, 4600, 4620, 4624, 4625, 4629, 4660, 4665, 4720, 4750, 4751, 4850, 4855, 4857, 4880, 4920, 4925 -2, 4925-2B, 4925-6, 4980, and 8605. You can locate the model number and country of origin by checking the mattress support label on the crib.

FOR MORE INFORMATION

First, check your crib. If you have a crib affected by the recall, stop using it at once.

Second, call us for a free case evaluation and for help. Attorneys Tim Edwards and Ed Wallis are reviewing cases where infants have been killed or seriously injured as a result of a defective crib. Please contact Tim Edwards and Ed Wallis at 901.527.4673, or send us an email today at tedwards@gewwlaw.com.

You can also email us by clicking HERE.

Malpractice Suit Filed Against Veterinarian

Michael and Kathryn Sutton filed a lawsuit last month alleging that their 13-year old dog, Marshall, would still be alive if not for the negligence of a veterinary surgeon. Their suit seeks $75,000 in damages for the loss of their constant companion. As in most states, pets are considered personal property in Georgia, and awards are typically limited to the replacement value of the pet.

Read more about this lawsuit HERE.

MySpace and Facebook used in jury selection

The popularity of social networking sites such as MySpace and Facebook has become a valuable tool for attorneys and jury consultants seeking to vet jurors. Information gleaned from personal Web sites, blogs and other Internet sources can reveal important information that jurors may not divulge on jury questionnaires or during voir dire. I guess the only problem is being able to google information during the middle of voir fire for short trials.

For longer, multi-day voir dire sessions, this could be very helpful.

Read more HERE.

Constitutional source

Need to access U.S. Constitution-related documents, including speeches, papers, journals and more? Try ConSource, a not for profit organization that has put more than 10,000 documents online for the public. You can visit it HERE.

Up next? Per the site:

The next collections include drafts of the Constitution, North Carolina and Rhode Island’s ratification debates, correspondence of the Constitutional Convention delegates, state constitutions, and predecessors to the Constitution, including the Magna Carta, the Mayflower Compact, and the Articles of Confederation.

Worth noting, Justices of the United States Supreme Court utilized the website in the recent D.C. v. Heller gun rights case.

RedLasso folds in light of Lawsuit

Well, the other day I wrote a blog entry on Facebook bringing a lawsuit against StudiVZ. You can read that entry HERE. StudiVZ is apparently denying copyright infringement. Another company, Redlasso, is not.

Redlasso claims that it “is the only site that enables users to search National and Local TV and Radio broadcasts, create clips and share them.” But, as reported by TechCrunch, the company has shut down its beta after NBC and Fox filed lawsuits against the company. Apparently, Redlasso allowed users to record television programs and then take clips of those programs for viewing by the general public. The site was therefore hosting copyright-protected content on its web site (and actually making FULL episodes available for viewing by certain subscribers).

RedLasso chose wisely in shutting its operations down, as it was (and still may be) in line for a very long courtroom battle with the two network giants. No matter my desire to assist injuries persons and businesses, I cannot help but side with the networks on this issue.

Next Page »