Rhode Island Injury Lawyer Blog

Articles Posted in Tort Reform

Personal injury attorneys are well skilled at discussing cases people find reprehensible.  If I had a dime for ever time someone mentioned the McDonald’s Coffee Case to me, I could probably stop practicing law and retire.  That case, like many others, was far more interesting and complex than the headline of “Woman sues McDonalds over hot coffee”.  If you are interested in what I am saying, I suggest you watch the fantastic documentary Hot Coffee.

There are other cases that people like to bring up, including some that are just fictional creations of the tort reform lobby.  And my purpose for this post is not to launch an argument against tort reform… rather I want to talk about the “new Coffee case”.  Namely, the awful Connecticut woman who sued her 12 year old nephew for hugging her!!!  My Facebook feed has been littered with friends mocking and insulting this woman with real vitriol!  I can already hear you saying, “Joe, you’re not possibly going to defend this woman or her lawsuit?!?”  Yeah, I am.  And, I’ll explain the reasoning behind it.

Of course the headline of this case is reprehensible.  What kind of awful person could sue someone who loves them for an act of love??  The answer might be that she had no choice.  The simple reality is that the civil justice system is designed to shift costs.  We can not take away injuries once they occur.  We can not hit a rewind button seconds before serious injury is caused in an accident.  Nor, can we put a price on a broken bone to make it go away.  All that we can do is compensate the injured person financially to assist with the disability, the lost wages and medical bills.  In the end, that is all our personal injury system is designed to do.  The person who rear-ended you likely is not an awful person who meant you harm, rather he or she made a mistake.  Their mistake, however, cost you in medical bills and pain and suffering.  So while they did not mean to harm you, their insurance will compensate you financially because that is the best that we can do.  And in this case, the 12 year old boy is not an awful person who meant harm.  But nevertheless, he hurt his Aunt breaking her arm racking up a hefty medical bill.

Now I admit I do not know the full details of this case, but I have seen similar situations before.  I have represented a wife who was the passenger in an accident caused by her husband driving, and I have represented a child against their father.  These cases are not made for revenge and no one actually wants to bring a case against a family member, but that is what the civil justice system requires.  When you sue for a slip and fall, you do not sue Allstate Insurance, you sue the owner of the property that caused the fall.  In this case, the woman could not sue the homeowners insurance, instead she had to sue her nephew.

I imagine that this woman did not have health insurance or did not have adequate medical coverage and after the accident she was left with tens of thousands of dollars of medical bills.  If an insurance company might cover the claim and shift the costs then she can not be said to be an awful human being for trying.  She had no choice but to “sue” her nephew if the insurance company was ever going to cover her hefty medical bills.

Again, I don’t know everything… but neither do most people commenting on the case.  I hope you can understand the principals of law that I have written here and see why such an awful law suit might exist.  After all, the accident occurred because the 12 year old was running to hug her.  He must love her… so maybe she’s not so awful after all.


For those who have joined the ranks of tort reformers under the misguided belief that it will somehow save our deplorable health care system, or for those who chastise plaintiff attorneys for no particular political agenda, I am here to expose hypocrisy wherever it occurs.

Plaintiff attorneys are the last defense against giant corporations which place profit over safety. Plaintiff attorneys are the reason the Ford Pinto is off the road, that asbestos is no longer used in construction, that unsafe prescription medications are recalled, and that cigarettes now come with warning labels. Yet some still cling to the stereotype of the plaintiff attorney as ambulance chaser. One such misguided soul is John Stossel. This Fox broadcaster who believes that Enron symbolizes all that is right with the corporate system (no, that is not a typo!) is a staunch critic of plaintiff attorneys suggesting that we are both parasites and lawyers.

But, as it turns out, and I want to thank thepoptort.com for breaking the story, Mr. Stossel once sued a pro wrestler for pain and sufferring. Apparently, Mr. Stossel is not a fan of the wrestling industry either, and called one of the athletes a fake. This led to a skirmish and a lawsuit from the man who believes that plaintiff attorneys are parasites. For his suffering, Mr. Stossel received $200,000.00! It’s convenient that the system was there for him in his time of need, but what a tragedy should plaintiff attorneys attempt to protect the rights and well being of any one else!

Of Course, Mr. Stossel is not the only tort reform hypocrite. In fact, many of those who chastise the civil system and criticize plaintiff attorneys, are the first to phone their attorneys when something goes wrong. Take, for example, everyone’s favorite Alaskan mom, Sarah Palin. While she goes forward trying to limit BP’s exposure for their atrocious oil spill (again, not a typo) she continues to criticize what she calls “frivolous lawsuits” in the tort system. Except that Ms. Palin forgets she has threatened defamation suits against any reporter who dare question her politics or intelligence.

Surprisingly, there seems no limit to the number of tort reform hypocrites. Take Robert Bork, an ardent supporter of tort reform who filed suit against Yale University for a slip and fall on their property; or, Trent Lott, always clamoring for tort reform, but finding himself in a post-Katrina lawsuit because his insurance company refused to pay his claim for property damage.

I could extend this post indefinitely, but I will stop here. Nevertheless, I will continue to point out hypocrisy whenever and wherever I see it. Tort reform is a political platform with no basis or merit that exists only because it seems to catch people’s attention.

The battle over tort reform is being fought on every front, namely, media and public opinion, federal and state legislatures, and the judicial system. In Illinois, at least, the Supreme Court has stood up for its citizens civil rights and rejected a state law capping damages in medical malpractice lawsuits, finding that such a statute violates the separation of powers between the judicial and legislative branches. More specifically, it was determined that legislative caps on pain and suffering interferes with the Courts rights and discretion to reduce jury verdicts.

The Illinois law in question sought to cap damages against Hospitals at $1 million dollars and $500,000 against doctors and other health professionals. The case, Lebron v. Gottlieb Memorial Hospital, is one of many similar cases being fought across the Country right now.

Medical malpractice caps do not work, result in substandard medical care, and is not the magic fix-all for the healthcare crisis that certain interest groups deem it to be. Furthermore, several studies show that doctors actually pay less in malpractice premiums, when adjusted for inflation, than they did decades ago. The latter study stemming from our own Commonwealth of Massachusetts.

I have indicated in previous posts, here, and here, that tort reform is not the answer to this Country’s health care problems. For one, the Congressional Budget Office has declared that malpractice costs are minimal in the large scheme of things. Second, medical malpractice attorneys, despite large potential reward, will only accept a very small percentage of cases. This is because it costs tens of thousands of dollars to bring a medical malpractice lawsuit, and many medical malpractice cases are unsuccessful. Therefore, if only the most obvious of medical errors are being challenged in the court systems, a great many errors go unpunished. This seems to combat the impression that doctors face countless “frivolous” lawsuits at the hands of greedy plaintiff attorneys.

Let’s hear it for the Illinois Supreme Court. They have recognized that the judicial system is the best vehicle for protecting innocent doctors while awarding victims truly harmed by medical error. Let’s hope that all States will follow their lead.

The NY Times published this piece by David Leonhardt, which I believe does a great job of avoiding the emotion of the subject and examining the matter on the facts alone.  Tort reform is on everyone’s lips as we discuss changes to our health care system, but there is no valid reason why.  Our health system is a mess for a number of reasons, the least of which is the plaintiff bar.  Mr. Leonhardt cites economists who say:

The direct costs of malpractice lawsuits — jury awards, settlements and the like — are such a minuscule part of health spending that they barely merit discussion…

…All told, jury awards, settlements and administrative costs — which, by definition, are similar to the combined cost of insurance — add up to less than $10 billion a year. This equals less than one-half of a percentage point of medical spending.

I have made the point in previous posts, that very few medical malpractice cases are accepted by attorneys and/or go to trial.  The high cost of a lawsuit and the difficulty in proving medical malpractice prohibits excessive lawsuits.  Mr. Leonhardt supports my opinion:

After reviewing thousands of patient records, medical researchers have estimated that only 2 to 3 percent of cases of medical negligence lead to a malpractice claim.

Contrary to the perception of some, we do not have a court system backlogged with frivilous medical malpractice lawsuits which are causing the death of our health care system.  The number of cases and costs attributed to medical malpractice litigation is astonishingly low in comparison to the total cost of our health care system.

Mr. Leonhardt does criticize the current system by pointing out that fear of malpractice leads to defensive medicine which is often wasteful.  Unfortunately, there is no solution to combatting defensive medicine.  States that have medical malpractice caps, or other legislation meant to curb litigation, often have similar amounts of spending.  One reason could be that doctors are paid more for doing more, and the excess testing and treatment is as much financial opportunism as it is defensive medicine.

Our own Senator was quoted in a recent op-ed piece in the Wall Street Journal written by Philip K.  Howard.   In the piece entitled, “Health Reform Requires Lawsuit Reform,” Mr. Howard advocates for the creation of a special health court akin to Workers Compensation Courts to replace the jury in medical malpractice trials.

As a plaintiff attorney and member of the American Association for Justice, my opinion on the matter is obvious.  Not only is the jury system necessary to our system of justice, but numerous reports have shown that changes to the malpractice system can not and will not save our battered health care system.  In 2008, the Congressional Budget Office reported that the “CBO has not found consistent evidence that changes in the medical malpractice environment would have a measurable impact on health care spending.” 

The scare tactics of tort-reformers overstates the situation greatly suggesting that there are countless frivilous suits filed daily to shake down doctors.  Anyone who has approached an attorney with a potential malpractice claim knows that quite the opposite is true.  Unless the damages are staggering and the negligence somewhat clear, no attorney in the world is going to attempt to file a lawsuit because of the prohibitive cost.

Tort reform costs us all our constitutional right to civil compensation for the wrongs suffered and this cost far outweighs the meager benefit to our health care system.  I want to applaude our Senator for protecting our rights for as he states himself, the jury trial “our protection against tyranny of the majority.”