Personal Injury and Social Security Disability Blog

A Lawsuit Is Never Frivolous When It's About Your Family

The Dallas Morning News columnist Steve Blow wrote last weekend about a local couple who have been picketing a nursing home because a relative died there. The couple is frustrated because every lawyer they've talked with has told them that lawsuits against nursing homes are essentially worthless in Texas since passage of "tort reform" in 2003. I agree with those lawyers.

The irony is that this couple describes themselves as conservative Republicans who are opposed to frivolous lawsuits. My guess is that they cheerfully voted for tort reform, thinking the changes in laws would never affect them. Now that the wife's father was allegedly killed through the nursing home's negligence, they suddenly have a different viewpoint on tort reform.

We get calls or e-mails every week from people in this situation, and we always have to explain that in Texas there is not much reason now for nursing homes, or to a slightly lesser extent doctors or hospitals, to worry about the level of care they give. They know they are not likely to be held accountable in the judicial system for their negligent acts. Here are excerpts from the newspaper column:

Bill owns a business installing audiovisual equipment. Kelly is a teacher. The Frisco residents identify themselves as conservative Reagan Republicans. Bill still considers himself a supporter of lawsuit limits.

“But you don’t throw the baby out with the bath water,” he said. “Frivolous lawsuits are one thing, but legitimate ones need to be heard. And they’re not.”

But when they consulted with attorneys, they heard the same story over and over. Sorry, the lawyers said, but we don’t take nursing-home cases anymore.

Lawsuit changes approved by the Texas Legislature in 2003 capped noneconomic damages at $250,000. And since elderly, infirm nursing-home residents can’t show loss of earnings or other economic damages, that $250,000 becomes the most they can receive.

Mounting a medical malpractice case is expensive and time-consuming, and lawyers say they simply can’t afford to pursue a case with a maximum award of $250,000. So the threat of lawsuits against Texas nursing homes has virtually disappeared — along with their incentive for quality care.

Consumer advocate N. Alex Winslow of Texas Watch said medical malpractice restrictions are “generally awful” in Texas, but their effect on nursing-home residents is “acutely despicable.”

“We’re talking about the most vulnerable in our society — the elderly and disabled. We should be doing everything in our power to protect them,” Winslow said.

He said he knows of no study to document a decline in nursing-home quality, but he is confident that lawsuit caps have caused it. “It has to have,” he said. “Absent the possibility of being held accountable, it’s human nature to start cutting corners.”

Who Represents Me in Washington and in Austin?

We are in the midst of some very bad legislative proposals, both in Washington and in Austin. Whether you're concerned about the loss of Medicare (Washington) or passage of a corporate immunity bill (Austin), you should contact your representatives and make your concerns known.

There is a handy site for Texas who want to know who represents them, and how to contact that person. Just visit http://www.fyi.legis.state.tx.us.

Tell Your Senator to Vote NO on the Corporate Immunity Bill

This is a follow-up message from Texas Watch to go along with the blog post from yesterday:

Dangerous legislation pushed by lobbyists for polluters, insurance companies and other corporate wrongdoers is on its way to the floor of the Texas Senate. The bill (HB 274) is designed to intimidate Texas families and small businesses into foregoing the legal accountability process, thus immunizing dangerous corporations when they cause needless death, injury, or financial devastation.

This legislation threatens Texans with the possibility of having to pay the bloated legal costs of big insurance companies or multinational corporations like BP or Wal-Mart. The lobbyists call this “loser pays,” but really it is “families pay” because only individuals – not corporate defendants – would be forced to pay. What’s worse is that you could see your life savings wiped out not only if you lose a valid lawsuit, but even if you just don’t win big enough. In other words, you can win… and still lose.

Florida’s experience with a similar legislation was so bad that lawmakers there repealed it just five years later. In fact, commonly known as “British Rule,” this sort of legislation was rejected by our founders more than two centuries ago because it guts individual liberties. Now, even the British themselves are considering abandoning it in favor of our American system.

If we don’t act now, this dangerous bill aimed at protecting big insurance companies and polluters at the expense of families and small businesses will become law. Tell your state senator that Texas families can’t afford HB 274.

Perry Thinks Corporate Immunity Is an Emergency… Really?

This press release is from the consumer organization Texas Watch:

Under the House Rules, an emergency item is one that is “of such pressing and imperative import as to demand immediate action.” After 20+ years of pro-defendant legal changes, Rick Perry believes that making it even more difficult for Texans with valid claims to access the legal system rises to the level of a statewide emergency.

“This is a sad state of affairs. Rick Perry is so transparently kowtowing to the special interest lobbyists who want even more immunity protections for polluters, insurance companies, and other big corporate wrongdoers,” said Alex Winslow, executive director of the citizen advocacy group Texas Watch. “Texas has plenty of emergencies to deal with. Immunizing needless death, injury, or financial devastation caused by corporate wrongdoers is not one of them.”

CSHB 274, the so-called “loser pays” bill, is an un-American scheme that is not in the best interest of public safety, public justice, or public policy. It threatens families and small businesses with having to pay the bloated legal costs of big insurance companies and multi-national corporations. It is designed to intimidate families and small business owners into foregoing the legal accountability process, thereby immunizing polluters, insurance companies, and other big corporate defendants from responsibility.

Under CSHB 274…

Middle class families could be financially devastated not only if they lose a valid lawsuit, but even if they just don’t win big enough.

Small business owners are put at a severe disadvantage when facing a big corporation in court.

Defendants are in complete control over with the exclusive option of whether to invoke this new provision, leaving the family or business owner at the whim of the accused wrongdoer.

Even if a family or small business owner wins a verdict against a corporate defendant, they could still be forced to pay the defendant’s legal costs. In other words, you can win and still lose.

Florida’s experience with a scheme similar to CSHB 274 was so bad that lawmakers there repealed it just five years later. As the Duke Law Journal notes, proponents are “diplomatically silent about Florida’s unsuccessful experience.” A former president of the nation’s oldest association of civil defense lawyers put it bluntly: “They tried it in Florida, and it was a disaster.”

Known as the “British Rule,” this concept was roundly rejected by our nation’s founders more than two centuries ago because it guts individual liberty. In recent years, however, Britain and other countries have begun to rethink the wisdom of this system. In fact, the British Ministry of Justice recently commissioned a report that recommends that Britain scrap its current system in favor of the “American Rule” in which both parties are responsible for their own legal costs. The Economist magazine proclaimed that “every citizen in the land would, at last, have a fair opportunity to have a case heard in the nation’s courts.”

“The bottom line is that Texas families already face significant barriers to accessing the constitutional promise of a right to Trial by Jury,” said Winslow. “Adopting a scheme that has a dubious history and is designed to force families and small businesses with valid claims to weigh the possibility of paying the legal costs of insurance companies and multi-national corporations is at best detrimental to public accountability and at worst unconstitutional.”

How Our Cars Got Safer

Earlier this month I wrote a blog post about the fact that trial lawyers are partially responsible for the increased safety of today's vehicles, and how those safety features have led to the 2010 death rate in auto crashes being the lowest since 1949.

Now a longer, and more eloquent opinion piece about this same matter has been printed in the Washington Post. The article is by Gibson Vance, the President of the American Association for Justice. Here are excerpts:

Traffic deaths in the United States have dropped to their lowest level since 1949, according to a report released this month by the National Highway Traffic Safety Administration (NHTSA). Remarkably, this drop occurred even as Americans drove 21 billion more miles in 2010 than they had the previous year.

The drop in fatalities is due in large part to the fact that cars are getting safer. Since the introduction of the Ford Pinto nearly four decades ago — a car synonymous with danger, destruction and executives putting profits ahead of consumer safety — amazing advancements have been made in auto safety. The technology is better, regulations are stronger and buyers have more information. Not surprisingly, consumers are drawn to cars with the latest safety features.

Yet these factors alone do not tell the whole story. History shows that litigation and the civil justice system have served as the most consistent and powerful forces in heightening safety standards, revealing previously concealed defects and regulatory weaknesses and deterring manufacturers from cutting corners on safety for the goal of greater profits.

The Ford Pinto litigation sent a strong message to the auto industry. Unfortunately, manufacturers have still sold dangerous cars. In June 2004, a Dallas-area mother stopped her Ford F-150 truck to speak with her husband through the driver’s side window. Her 3-year-old daughter leaned out the passenger’s side window and accidentally hit the rocker switch, causing the window to close on her neck. When her parents noticed moments later, it was too late — their daughter was strangled.

As power windows became more common, so too did instances of children being strangled. Seven children died within a three-month period in 2004. Manufacturers were aware of the issue, and the fix was relatively simple and inexpensive. In response to regulations in other countries, European and Asian cars already used a safer switch — one that must be pulled up to raise a window — and so did many U.S. manufacturers on cars they offered to foreign markets. Yet incredibly, U.S. manufacturers did not install the safer switches on domestic cars because NHTSA had no rules governing power-window safety. Litigation eventually forced universal acceptance of the safer switches in 2006.

It is easy to take for granted just how much safer vehicles have become and how safety measures have been standardized. For years, the auto industry has worked to undermine regulations and limit its liability by pushing for complete immunity from lawsuits when their vehicles comply with minimum federal safety standards. This would, in short, be devastating for consumers.

Recall that the Pinto’s design met all government standards of the time. Had compliance with federal standards been a complete defense of vehicle safety, Ford could not have been held accountable for the many burn victims that the company was later shown to have anticipated.

Put another way, without the civil justice system, gas tanks would still explode in rear-end collisions, seat belts and airbags would not be standard, and cars would roll over onto roofs that would be easily crushed.

There are multiple reasons behind the welcome news that traffic deaths continue to decline. But the role of the civil justice system is often overlooked. Litigation has spurred safety innovations in vehicles for more than half a century and will continue to be essential in keeping Americans safe and holding manufacturers accountable.

Wisconsin Governor Signs Bill Lowering Auto Insurance Liability Minimums

Union-busting is not the only big political issue in Wisconsin these days. According to a press release from the American Association for Justice, the state has now reduced the minimum required auto liability policy limits. That's going to be bad news for anyone in Wisconsin who is seriously injured in a car wreck. Here is the short press release:

The AP reports Wisconsin Gov. Scott Walker "signed into law Tuesday a bill designed to lower car insurance rates by undoing higher coverage requirements approved by Democrats less than two years ago." Under the measure, supported by the Wisconsin Insurance Alliance "current liability minimums of $50,000 for injuring or killing one person, $100,000 for injuring or killing two people and $15,000 for property damage would drop to $25,000, $50,000 and $10,000." The Wisconsin Association for Justice "argued that insurance companies would simply provide less coverage but not lower rates accordingly. They also argued that the higher coverage requirements were necessary because the levels had been stagnant for more than 20 years."

The Milwaukee Journal Sentinel reports WAJ President Mike End said, "This is really a sad day for automobile insurance consumers." The measure also prohibits "'stacking' of coverage, in which drivers could use coverage from up to three of their vehicles to help pay costs from an accident involving just one of the vehicles." The bill authorizes insurers to classify first-time insurance purchasers as high-risk, "allowing them to charge higher premiums," and "insert clauses into their policies that could lower the amount drivers collect when they are hit by underinsured drivers."

Texas Laws Offer Enough Protection To Insurance Companies Already

Fort Worth attorney Bob Halsam wrote an excellent editorial for the Star Telegram this week. The topic was some of the off-the-wall "tort reform" bills that have introduced in either the House or Senate recently. Here are the opening paragraphs of the editorial. You can read more after the break.

Gov. Rick Perry's proposals for Texas' legal system would help his insurance company contributors further increase their profits on the backs of those least able to help themselves after being injured by others' negligence -- and limit the already small recoveries available to plaintiffs in Texas.

Perry recently called for lawsuit "losers" to pay their opponents' legal expenses and for an "early dismissal" option to get rid of "frivolous" suits. He said these components would help the state's legal and economic climate.

But if the governor believes that Texas needs an early-dismissal option and expedited trials with limited discovery for claims between $10,000 and $100,000, he is not familiar with our court system. We've had both for years.

Rule 190 of the Texas Rules of Civil Procedure covers expedited trials. We already have three levels of cases to expedite things. Should we spend more money to add more layers?

Defending cases between $10,000 and $100,000 in Texas now costs very little. Many are defended by salaried insurance company employees with nominal costs to the company. Many are handled on fixed fees, some for as little as $2,000-$3,000 for the entire case.

In Tarrant County, cases involving $10,000 to $100,000 go to County Courts at Law and can get a trial setting in less than a year. The judges should be commended for moving cases fairly and efficiently.

Insurance companies and defendants want attorney fees awarded for frivolous claims by injured people. No problem. But fairness goes both ways: How about attorney fees awarded to the injured for frivolous, fraudulent or false defenses? Insurance lawyers routinely file defenses and make claims that can never be proved. Defendants waste too much time in litigation by stalling, delaying and making frivolous defenses. Insurance defendants and corporate defendants should pay attorney fees to the injured person so the playing field is level for both sides.

Again the governor misleads Texans or doesn't know the rules.

Texas already has an "offer of settlement" rule, Civil Practice and Remedies Code Chapter 42, which provides for attorney fees. This rule is one-sided because the insurance company or defendant must invoke the rule. It has some fairness because it allows the plaintiff to make a counter-proposal to the insurance company's usually low offer. The rule is rarely invoked: I haven't seen it in one of my cases in 10 years.

Perry wants to make it more one-sided, kind of like going to a fight and making the injured person tie one hand behind his back. That is not fair, and that is not what Texas stands for.

Stop Giving Away Our Legal Rights — The Reality Of Tort Reform Is Unfair System

Houston attorney Paul Simon wrote an excellent Letter to the Editor of the Houston Chronicle this week:

For the fourth time in recent memory, business interests and insurance companies want to further tilt the scales of justice in their favor. Called tort reform and pitched as being aimed only at frivolous lawsuits, the reality of these proposals is far different than the rhetoric used to justify them.

First, the system already deals harshly with frivolous cases. How do I know? I recently won $25,000 in sanctions for my clients when a judge agreed the other side's lawsuit was frivolous. So what is a frivolous lawsuit? It is one that no sensible person believes is valid.

When someone wins a lawsuit, the judge, jury, court of appeals and Texas Supreme Court all believed that the case was valid — which proves just how wide the gulf is between the reality and the rhetoric of tort reform: These proposals don't stop frivolous lawsuits; they simply limit liability in meritorious ones. The BPs, Halliburtons and Wall Street interests aren't spending millions to stop frivolous cases. Their aim is to make it so difficult for you to sue them that they are effectively immunized from personal responsibility in valid cases.

One example is when legislators took away from judges and juries the power to assess damages in medical cases and set a one-size-fits-all cap, regardless of how badly a patient was injured. Touted as ridding us of frivolous lawsuits, the cap only comes into play after a jury decides that the patient was so badly injured that his damages exceeded $250,000. (Remember how we were told the cap would make health care affordable? You know how it didn't.) The truth of the matter is that the cap was not aimed at frivolous cases to reduce health care costs; it was aimed at making medical cases so difficult that patients wouldn't file valid claims, much less frivolous ones.

One proposal business interests and insurance companies are running up the flagpole now is called "loser pays." Sounds good on the surface (and the lobbyists hope the name sticks), but it will only apply to claimants, not defendants. The bottom line is that, because most trials are "he said, she said," if you have a real claim with real damages, you would have to weigh your decision to seek justice not simply on the merits of your case, but on the fear of having to pay your opponent's legal bills if you lose. But that's not the worst part; the worst part is that businesses and insurance companies won't face that same fear. They can force you to hire an attorney, delay paying you for years while your case works its way through the courts, but won't ever fear paying your legal bill when the jury holds them responsible. Why two sets of rules? Because they want to rig the system and lock the courthouse doors to all but those who hold its key - those with lots of money.

These same interests have another one-way proposal likely to surface this year: government regulation of your right to hire the attorney you want. Today, if you can't afford an attorney's hourly fee, you can hire one on a shared-risk basis (the attorney is paid only if you recover). The special interests want to set a very low fee for your lawyer, while allowing the business or insurance company you're suing to hire the best attorney it can afford. Why shouldn't individuals and small businesses have that same right? The lobbyists argue that capping your attorney's fee will stop frivolous lawsuits, but because attorneys who represent the injured only get paid when a case is valid, this proposal again has nothing to do with stopping frivolous lawsuits and everything to do with stacking the deck. How? It's really no different than if a sports league capped half of the teams' salaries and allowed the other half to pay market rates for the best talent. Who do you think would win most of the time?

If you believe that sacrificing our legal rights on the altar of an imaginary crisis created by the same interests whose actions brought our country to the brink of financial collapse is wrong, I urge you to watch this session of the Texas Legislature closely and call your state representative and senator and tell them to vote no to more so-called "tort reform." Our collective voices must be louder than the special interests' pockets are deep.

Simon is an attorney in Houston who represents consumers in consumer protection cases and small business owners in commercial cases. He is the founding partner of Simon, Herbert and McClelland.

 

Health Tort Reform Sounds Better Than It Is

A Daily Kos blog argued against healthcare tort reform proposals, noting medical malpractice's less than 1.5% of healthcare costs "hardly makes tort reform worthy of the attention it receives for cutting health care costs. Furthermore, tort reform has already been implemented in more than half of the states in some form," so many states would feel no impact from additional reforms. The blog cited Texas' growing healthcare costs and lead status in the number of uninsured citizens, even after implementing tort reforms in 2003. Also, tort reforms wouldn't necessarily reduce defensive medicine practices, as litigation risks will always exist, and "evidence suggests that the profit motive" from defensive medicine "would continue to drive defensive medicine practices."

Patient safety improvement key to malpractice reform. MedCity News blogger and MedPharma Partners founder David Williams wrote malpractice reform should center on increasing patient safety. In noting that "the malpractice system is going away entirely," Williams suggested shifting "some or all of the savings to education and re-engineering of care processes to improve patient safety in order to prevent the emergence of situations that the malpractice system is meant to address." He cited a Boston Globe op-ed highlighting the danger posed to patients that result from a lack of coordination between doctors. He also challenged arguments that lawsuit fears lead to defensive medicine by suggesting the practice could be a function of patient preference. He added, "A much bigger impact on unnecessary tests will be had by shifting the payment system toward capitation."

From the American Association for Justice news release.

A Conservative Republican Speaks Out Against Tort Reform

This article in the Tennessean was a surprise to me. Republican former presidential candidate Fred Thompson speaks out strongly in objection to Tennessee imposing a cap on damages in medical malpractice claims. I wish Texas politicians were this wise.

I have been asked why I want to take part in the discussions when the state legislature considers changes to our civil justice system in Tennessee. I am certainly aware of the ideological boxes that advocates like to put folks in when it comes to "tort reform."

Republicans and conservatives are supposed to be for anything called tort reform. However, I've never subscribed to these boxes. Not when I was in the U.S. Senate faced with these issues, and not now.

Some argue that the legislature should tell Tennessee juries that they can award only so much compensation in certain types of cases against certain types of defendants — regardless of the facts and circumstances of the case. I don't agree with this approach, and I don't think it's "conservative."

To me, conservatism shows due respect for a civil justice system that is rooted in the U.S. Constitution and is the greatest form of private regulation ever created by society. Conservatism is individual responsibility and accountability for damages caused, even unintentionally. It's about government closest to the people and equal justice with no special rules for anybody. It's also about respect for the common-law principle of right to trial by jury in civil cases that was incorporated into the Seventh Amendment to the Constitution.

As someone who practiced in the courts of Tennessee for almost 30 years, I believe that a Tennessee jury of average citizens, after hearing all the facts, under the guidance of an impartial judge and limited by the constraints of our appellate courts, is more likely to render justice in a particular case than would one-size-fits-all rules imposed by government, either state or federal.

Our system "ain't broke." It is based upon tradition and common law and has provided justice to individuals and businesses alike.

The legislature has made adjustments to our tort law from time to time. For example, in 2008 a law was passed requiring plaintiffs to get a written statement from a medical professional saying that the lawsuit had merit, thereby reducing medical-malpractice suits. This was reasonable and appropriate. However, never has the legislature imposed a dollar limit in cases where damages and negligence have already been proven.

I recognize that several other states have imposed such rules. It's understandable. The pressure to do so is very strong. That does not make it right or sound policy. Tennessee does not make a habit of simply following a path that has been cut by others. Forty-one states have a broad-based income tax, and I am proud to say that Tennessee does not, and I believe it is much the better for it.

No system ever devised by man is or can ever be perfect. But our civil justice system has served us well, and any substantial changes to it should be made only if the change is needed, fair and beneficial to all Tennesseans. I hope that I can be helpful in discussions that we will soon be having on these important issues.