Articles Posted in Tort Reform

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States around the country are making terrible mistakes by enacting draconian tort reform measures that strip injured patients of their rights to recover from doctors and other medical professionals who hurt them. The only way there is to hold these healthcare providers responsible for their negligence is by filing medical malpractice claims. In spite of the importance of medical malpractice litigation, some state legislatures like those in Missouri, Texas, and Wisconsin have taken steps to severely curtail these lawsuits. Fortunately, it appears that Illinois will not be falling for the tort reform any time soon.

Illinois Committee of the Whole Holds Tort Reform Hearing

Last month the Illinois Committee of the Whole held an hours long hearing on tort reform reports the Illinois News Network. There currently are not any official proposals on the table for tort reform in Illinois, but it is always a possibility and the insurance lobby never stops pushing for measures like damage caps. Fortunately at this hearing victims of medical malpractice had an opportunity to speak out and remind legislators why damage caps are so harmful. In addition to these medical malpractice victims, victims of other types of torts also came forward and testified about why general personal injury or wrongful death damage caps would be harmful. The widows of two dead state troopers were among those who testified.
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State after state falls into the trap of pursuing wrong-minded so-called tort reform laws. These laws are marketed to the public as a necessity to prevent frivolous lawsuits. However, all these sorts of laws do in reality is deny those most injured by medical malpractice the ability to recover fully for injuries caused by the negligence of healthcare providers while often violating various constitutional provisions. Misguided and dangerous medical malpractice legislation is currently pending in the Georgia legislature.

Dangerous Tort Reform Measure Pending in Georgia

The Atlanta Journal Constitution reports that Georgia’s legislature is considering medical malpractice legislation. The bill is Senate Bill 86. This new law would go even further than other states’ prior tort reform measures, stripping patients seriously injured by their doctors of any right to a trial by jury at all. Instead every single medical malpractice claim in the state would be handled by a sort of administrative tribunal.

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While courts in states as varies as Illinois, Missouri, and Florida continue to hold tort reform measures designed to rob injured plaintiffs of their rights to recover for their personal injuries unconstitutional, legislators continue to push these measures in states that have not yet enacted them. Colorado is the next state to face the possibility of draconian tort reform measures this legislative term. Caps on medical malpractice damages are just one type of law that the insurance lobby is pushing for this year. West Virginians are also in danger.

Colorado Legislators Push for Tort Reform

Denver’s News 9 reports that the Colorado legislature has already introduced 111 bills this session. Tort reform efforts are among those bills and apparently the effort is at least partially bipartisan. The Denver Business Journal reports that the efforts are large scale.
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The Baltimore Business Journal reports that Maryland lawmakers are considering creating a birth injury fund. While on its face this may seem like a wonderful and well-intentioned idea, it would ultimately hurt those families who are most severely harmed in birth injury cases.

Regular System With No Birth Injury Fund

In a regular system, like that in Chicago, parents file birth injury lawsuits w hen babies are injured during birth or before birth by the careless or intentional acts of a doctor, nurse, hospital, or other healthcare provider. When the actions are not criminal but are serious enough to hurt the baby, they are a “tort,” which means a civil wrong that can be sued over. When a meritorious law suit is filed, either both sides will come to an agreement as to what damages should be paid to the injured family, or there will be at a trial. Both sides will be represented by experienced medical malpractice attorneys who can advise them as to what risks they should and should not take. At the trial, if the jury determines that the hospital or healthcare provider is “liable,” or responsible, for the injuries, then the jury will determine how much the family should be compensated based on the individualized facts of the case.

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The Florida Supreme Court struck down that state’s cap on wrongful death non-economic damages because the cap violated the equal protection clause of Florida’s constitution. Justice Lewis wrote for the Court that the $1 million cap was unconstitutional because “it imposes unfair and illogical burdens on injured parties when an act of medical negligence” effects more than one person. He explained that the cap resulted in some injured people receiving full compensation while arbitrarily denying others compensation, meaning people were not treated equally before the law.

Caps on non-economic damages prevent those harmed by medical malpractice from being compensated for their injuries. Non-economic damages are meant to compensate the victims for the intangible harms they suffer. In a personal injury case, non-economic damages can include those for pain and suffering and emotional distress, while in wrongful death cases they can compensate the harmed parties for loss of consortium or loss of companionship. Awarding these damages allows a jury to acknowledge that the loss of a child or spouse is not merely harmful to the survivor because of the medical bills or loss of income, but that the loss of the actual person and the relationship is also a real harm.

Florida joins Illinois in a growing number of states that are undoing the damage done throughout the 1990s and early part of this century to civil litigants’ rights to recover for these injuries. Like Florida, Illinois used to cap non-economic damages in medical malpractice suits. Then, in 2010, the Illinois Supreme Court brought an end to the caps in the landmark decision of Lebron v. Gottlieb Memorial Hospital.

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It is no secret that litigating a medical malpractice claim can be stressful and difficult. The system is complicated, and resolving a case is not always quick. Our system of resolving medical malpractice claims is fraught with unnecessary impediments and flaws, such as frivolous lawsuits, lengthy settlement processes, and legal technicalities.

One such problem is that of doctor uncertainty. Accidents are called accidents because they are unexpected and unintended, and they can happen even in the care of well-intentioned, experienced doctors who have acted as they should. Still, they may be hit with lawsuits that gum up the courts, thus slowing the process for meritorious claims. To attack this problem, some experts propose what are called “safe harbor” laws. These are laws that protect doctors from malpractice suits in cases where they have followed accepted clinical guidelines. Essentially, doctors are provided with checklists that, if followed, will prevent their liability for malpractice claims. However, where they are not followed, the doctors will open themselves up to liability.

Despite being intended to protect doctors, a new study has found that safe harbor laws are likely more beneficial to patients than doctors. The researchers examined malpractice cases from Oregon between 2002 and 2009 to see whether they would have come out differently had Oregon had safe harbor rules in place during the period. The study found that safe harbor rules would have changed the outcome of the case in favor of the defendant physician in only 1 percent of the 266 claims it examined, so it seems that safe harbor laws do not help doctors very much.

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It’s a nightmare scenario: A patient is having surgery, and something goes wrong because his health-care provider acted negligently. The patient has rights and deserves to be compensated for his damages. But the surgeon wasn’t the only person in the room. What if someone else committed the negligent act? Does the patient have rights under the law?

Who Is A Professional Health-Care Provider Under the Law?

Medical malpractice occurs when a health-care professional or institution provides care that deviates from the expected standard of practice and subsequently harms the patient. The appropriate “standard of care” is that which medical professionals generally accept as the best practice for treating a patient. In Illinois, doctors are not the only professional health-care providers who can be liable for malpractice. The law also protects against malpractice by physician’s assistants, nurses, dentists, and pharmacists, among others.

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Discussions about medical malpractice, tort reform, and healthcare costs are frequently framed in terms of “Doctors vs. Lawyers.” This is unfortunate, because it distracts from very real problems: the need to limit medical errors and reign in health care costs. Doctors are obviously focused on helping sick and injured patients with their medical needs. Lawyers are focused on helping sick and injured patients protect their legal rights. There is no inherent reason why those goals are at odds. A more holistic approach is needed to change focus on discuss the real underlying issues.

From that perspective, a new article written this month by a doctor Board Certified in Internal Medicine offers a helpful way forward.

The Reality of Med Mal Costs

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Most are aware that starting last month, a large component of the Affordable Care Act (Obamacare) was rolled out. For the first time consumers were able to search for insurance via health care “exchanges.” The general idea is that prices will be lower when companies compete for enrollees. In addition, more and more community members discovered while enrolling in the program that they qualified for Medicaid. An expansion of Medicaid was made part of the law, with more families qualifying for support via the government program.

Unfortunately, headlines regarding the roll-out were dominated by technical glitches. The federal website created to manage the enrollment experienced a range of glitches, preventing many from completing the process and acquiring new insurance via the exchanges. Those working on the project explain that fixes are being made and everything should be running smoothly in a pair of weeks. Predictably, those opposed to the law have jumped on the problems as a sign of inherent problems with everything related to the law.

It is important, however, to step back and take a holistic approach to the law. Obamacare is a complex new law which overhauls many different aspects of the health care world in the United States. Most focus is on new requirements placed upon employers and individuals to purchase health insurance. But that is by no means the only component of the law.

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Last year we discussed a few alarming stories suggesting that various forms of “alternative dispute resolution” (including arbitration) were making their way into hospital admission agreements. What this means is that patients and their families need to be careful about unintentionally giving up their legal rights. In the event of medical malpractice, it is critical for families to have the option of pursuing their rights via the civil justice system.

As mentioned before, arbitration agreements essentially force those who are hurt by the negligence of others (usually big companies or enterprises) to go through a separate process to resolve their dispute. That separate process is slanted greatly against the consumer/patient. Historically, these agreements were never used in the medical context–and it is still somewhat rare. However, as use of arbitration agreements increases significantly in all situations, more and more medical establishments are trying to sneak in these clauses.

The Truth About Forced Arbitration