Effect of Tort Reform

At our offices we try to help as many people as we can and do a good job with every case. Because of this, as explained below, we must be very select in which cases we pursue. This is especially true in the area of medical malpractice where we now accept only the most clear-cut and egregious of cases. Unfortunately, we turn down many cases, many cases that are valid and have merit. In fact, a recent Harvard Medical School study estimated that in the area of medical malpractice, less than 1 in 17 patients injured by malpractice ever receives any compensation. And this study was performed before the massive “pro-insurance protection reforms” (some of these explained elsewhere on this website) became law in 2005.

Unfortunately, in Missouri and elsewhere across the country, people are seeing their basic human rights restricted, limited, and in some cases flat out denied. In car wreck cases, the insurance companies are waging a propaganda war against injured victims. Allstate has advertisements on TV that talk about how rear end collisions are often the fault of the person who "stops suddenly in front of you" and other ads talk about how wrecks without much property damage can not cause any significant injury. In workers' compensation cases, the laws in many areas now reward insurance companies for "starving out" injured workers and "wearing down" these workers so they take smaller settlements. And in medical cases, Americans are not entitled to the highest degree of care; individuals are only entitled to the lowest reasonable medical care.

These rules are not just disturbing, they are shocking. Innocent victims deserve basic human rights. My personal experience is that American patients should receive the highest quality of medical care, and that is always what I try to deliver. But again, in Missouri and most parts of the country, patients are only entitled to the lowest possible care that some "reasonable" health care providers may provide.

Perhaps medical malpractice cases are the most illustrative of the problem facing citizens asking for justice. There is little doubt in my mind that medical malpractice cases, in general, are the most difficult cases to win. To begin with, doctors and hospitals are naturally sympathetic figures to a jury. Additionally, with all of the advertising insurance companies have recently conducted, they have effectively poisoned many potential jurors into believing that doctors are being sued needlessly in almost all cases. In the past couple of years, lawyers across the country have observed that, as a direct result of the insurance industry's advertising, juries are returning fewer and fewer verdicts in favor of plaintiffs like you and are returning more verdicts in favor of the doctors. In fact, both democratic and republican politicians have attempted to capitalize on the public’s dislike of lawyers. Democratic Senator Claire McCaskill, in her successful campaign United States Senate, complained about lawyers and went on to make comments that “lawyers are trolling for cases” on TV and in newspapers and it should stop. Former President George Bush, in his acceptance speech at the 1992 Republican Convention, stated that "slick lawyers are suing doctors and it ought to stop." In 1996, Republican presidential nominee Bob Dole repeatedly stated that the "trial lawyers need to be stopped." Then in 2000 and again in 2004, Republican President George W. Bush said that medical malpractice lawsuits are "threatening access to care, threatening patient safety and the quality of health care, raising health care costs for all Americans, adding billions to Federal health expenditures." Although studies have shown these assertions not to be true, this rhetoric is often accepted by the public. These studies can be found at this hyperlink - Studies. Adobe PDF file When the wealthy insurance companies and doctors have this type of advertisement and support, it makes our job even more difficult.

Because of the ongoing negative publicity about medical malpractice cases and lawsuits and trial lawyers in general, fewer and fewer lawyers are taking and trying injury cases. So effective is this negative campaign that the largest and most powerful group of trial lawyers in the nation went to the extreme of changing their name, deleting their very identity - "trial lawyers". They were the Association of Trial Lawyers of America, now they are the American Association for Justice.

Another example of the unbelievable power of the insurance companies is found in the area of medical malpractice. To begin with, if a person suffers a catastrophic injury and needs long term care, the amount they or their family will receive from any verdict to pay for future medical care is actually paid-out annually – with the insurance company keeping most of the jury award. The annual payments stop at the death of the injured party. So there is no worry about a jury awarding too much. But the law does not specify that this information can be given to the jury. Below is an example that makes this more clear.

The plaintiff, the injured party, says they need $100,000 a year to cover costs of care due to a catastrophic injury. The plaintiff, injured party says they will live about 30 years. The total amount needed is $3,000,000.

The defense says the person could get by with $25,000 per year and will only live 4 years. The total amount needed is $100,000.

The jury decides the person will live 10 years and the amount needed is $100,000 per year, for a total of 10 years. The total award, the total amount needed is $1,000,000.

Now here is what takes place that the jury never hears about. The law passed by the insurance company, which is not told to the jury, is that the award by the jury (1,000,000) is divided by the life expectancy put forward by the plaintiff (30 years) even though not used by the jury. The annual amount to be paid is 1,0000 divided by 30 which equals $33,333.

Now here is the extra kicker. When ever the person dies the payments stop. If the injured party died in 10 years they would only have received $333,330. Much less than what the jury awarded to cover this time period.

If the jury knew this, they could award the highest amount with no worries, because even if they gave the “big” number, the payments stop and the insurance company keeps the remainder when the patient dies.

Additionally, because the payments are just annual installments, the insurance company is losing no money other than there interest on the money. In other words the insurance company only needs to put back enough money to produce interest of $33,333 per year. The insurance company could take $900,000 (less than what they owe you) invest it at an annual return of 3.7% interest, and just pay you the interest each year. That way, when you die, they get their $900,000 back and really paid you nothing. After all, that was your money they invested (actually they owed you $1,00,000, not $900,000, but under Missouri law, this malpractice victim gets zero, not even one penny, except interest on the insurance company's money). This form of recovery is now the law in Missouri.

As you can see, this is very harmful to people who have already been devastated. And, if this was not bad enough, there are more proposed limitations, several pages of them. Of course all of this is in violation of the 7th Amendment to the Constitution of the United States, but to many politicians and insurance companies this is just an ancient document that needs to be slowly whittled away. Big business and insurance companies can buy off politicians but they cannot buy off juries (one of the reasons we have juries) so they believe it is necessary to slowly do away with juries and the 7th Amendment to the Constitution of the United States. My friend Gerry Spence once said that in America we now have a king - the wealthy corporations. If that is the case, then the king of kings is certainly the "insurance corporations."

On top of all the negative impact from the insurance companies, advertising and political commentaries to be successful in any medical malpractice case, we must prove at least three things. First, we must prove negligence of the health care provider (that the doctor was unreasonable). Secondly, we must prove you have been damaged. Thirdly, we must prove that the negligence directly cause or directly contributed to cause the damage (that the unreasonableness itself caused you harm - causation). Increasingly, unless the negligence and damages and causation are relatively clear cut, juries are returning verdicts in favor of the health care providers.

Additionally, many malpractice cases cost between $50,000 and $100,000 to bring to a trial (and this does not include attorneys' fees). And this is usually a minimum with some cases costing over $250,000 to get to trial (one complex medical malpractice case cost over $300,000 to try). The $50,000 - $250,000 in expenses is comprised of numerous litigation related expenses. There are fees paid vocational experts, life care planners, focus group consultants, to various doctors for reviewing medical records, reading the depositions of witnesses, testifying in deposition, shutting down their practice to come to trial, traveling to trial, and testifying at trial. Then there are the deposition expenses of the people you sue, expert witness fees to the opposing sides' experts when we take their depositions, and the filing fees. There are also the travel costs to meet with our experts, costs to prepare exhibits for trial and other numerous expenses that are involved in preparing a case for trial.

Additionally, the legislatures have restricted recoveries in numerous areas, in numerous states throughout American. Nowhere is this more clear than with "Caps". Caps limit recovery of non-economic damages/losses. In Kansas the caps apply to all types of personal injury cases, from car wrecks, to defective products to medical malpractice cases. In Missouri, the cap applies to all medical malpractice cases. This cap, this limit on recovery for what it means to be a human being, eliminates cases for many of our older and non-employed populations whose injuries do not result in future medical needs (i.e., no economic loss). The people affected the most are stay at home moms, retired moms and dads, children and grandparents. For these people, if there are no economic losses, the most the person can recover is the "cap" (if the cap applies to their case). In Missouri the cap is now being contested on Constitutional grounds. In other states that have declared these caps constitutional, the amount is usually $250,000 to $500,000. But if you look at what the average malpractice case costs to try, then consider that unless the negligence, damages and causation are fairly clear cut most cases are won by the defendants, it soon becomes clear that the states that have caps are eliminating the valid claims of many citizens. I hate to bring in these cold economic terms, but it is an honest factor in our decision making process. To be free-spoken, there will be few "cap only" cases we take from here on out. (This is especially true if Missouri eventually determines the caps to be Constitutionally valid).

As the deck is stacked more and more against the common person, it has become an extremely expensive matter to pursue some cases, and with all the "jury poisoning" there is a significant probability that some valid cases will not be successful. Of course, this is just my opinion and I cannot give a definitive answer to many people who call in. While my office is unable to take most callers' cases, I strongly recommend that people contact other attorneys to see if someone else will take the case.

In light of the foregoing, it is often my advice to clients with potential malpractice cases (and other cases for that matter) that it is not economically wise for our office to pursue a lawsuit. I hate to put it in those terms, but that is the plain fact. I think many cases are, at best, difficult to pursue. Unfortunately, in my personal opinion (which may be wrong), I must pass on many cases because I do not believe that it would be advantageous to pursue a claim and, therefore, I must respectfully decline representation.

I do want to add that lawyers are like doctors, in that many times their opinions differ. It is entirely possible that another attorney would evaluate a case differently. Lawyers are sometimes wrong, and I certainly have no objection, nor would I be offended, if a person wants another attorney to give his or her opinion on a case as well. In fact, as with a good physician, I believe a good lawyer should encourage a second, third or more opinions when possible. I, therefore, recommend people seek a second, third, or as many opinions as they desire. I encourage this.

I cannot stress strongly enough that people should be aware that a statute of limitations (a time limit) will run with respect to their case. In simple terms, the statute of limitations, once it expires, forever bars a person from bringing a lawsuit in their case. Each state varies in their statute of limitations. The main point being that if a person wants to pursue any matter, they should do so immediately. I can not stress strongly enough that if a person wants to look into a potential case, if they intend to contact another attorney, they should do so immediately.

I have not and I am not making any definitive comment on when the Statute Of Limitations will expire in your case! I am merely saying that if you or anyone is going to get opinions you should start immediately.

Each day, I am disappointed that I can not help all of the people that contact me. Again, thank you for visiting our web site and I hope this information has helped you better understand the process.

Sincerely,

Brad Bradshaw, M.D., J.D.

P.S. To contact your state or federal representatives, visits the websites below: