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Articles Posted in Tort Reform

I’ve always wondered how much tort litigation deterred bad conduct. The word tort means bad act. Tort litigation is intended to both reimburse the victim of bad acts and to deter future bad acts.

Studies tend to show that in motor vehicle accidents the laws really do not substantially effect peoples’ driving. Most people assume that this is because drivers of vehicles do not wish to get in motor vehicle accidents because they could be hurt or killed. They have a built deterrent factor – injury.

Medical providers do not have the same incentive. People may very well have an innate sense that they should not hurt other people and try not to do so for ethical reasons. However, how much time and money one spends preventing an injury maybe significantly less if there are no consequences to the person or entity that hurts or kills person.

I had a great guest on the air on December 23, 2017. The podcast his here. I went to a seminar at the Illinois Trial Lawyers Association on medical malpractice to keep up my continuing legal education. One of the speakers was a former president of the Illinois Trial Lawyers Association, Pete Flowers. He is one of the name partners in Meyers and Flowers. They handle all sorts of cases, including medical neglect, and a fair amount of medical product liability, and other things.

As he got up to speak he was introduced as having settled a case for $1 billion. After the seminar, I talked to Pete in the bar; I know him through my association and work on the board of managers of the Illinois Trial Lawyers Association. He told me that the speaker had made a mistake. He had 3 cases that settled for a billion dollars. I was fascinated. Billion-dollar settlements are a rare thing. To have one is remarkable, to have three is really striking. So, I asked Pete to be on the air.

The first case that we talked about in the air was a train wreck case. I had never heard of the Lac – Megantic rail disaster. Peter explained that the disaster was a Canadian train wreck. The train was carrying the fracked oil, which is highly flammable. The two people who were operating the train both left the train, but failed to put the brakes on properly. As you might imagine, the train began rolling. It rolled 7 miles before it came to be town of Lac – Megantic, a small town with about 6,000 people in it. The train jumped the tracks, spilled oil through the lake, and basically blew up the town. Just short of 50 people died. Canadian law caps noneconomic damages at somewhere in the $250,000 to $326,000 range. Pete filed suit trying to get jurisdiction in Chicago, the train went through a great deal of United States and the defendant was located in Chicago. He was successful. He managed to get much more than the low Canadian cap for the loved ones of the victims who died.

HR 1215 advancing through the house, the subject of medical neglect to come up again. HR 15 would limit noneconomic damages to $250,000 on medical neglect claims throughout the country. This would affect states’ rights to decide their own law about medical liability by taking away the right to make a decision. The bill is call the Protecting Access to Care Act of 2017. Always remember, whenever you read the title of a bill, it does the opposite of what you might suggest. This bill protects medical providers from their bad actions.

With the radio show a couple of weeks ago we had some spirited debate about the issue. A younger medical intern had questions and we had a really good discussion about the issues. After that, an older doctor called up to was very pro-tort reform. He argued that there is too much defensive medicine and so the government should cap damages in medical neglect suits. He argued that there is some evidence that 85 billion could be saved by capping defensive medicine, as if capping damages will suddenly get rid of all defensive medicine.  Here is a link to the podcast.

There are a couple of things I would say in response to the older gentleman. Concerning defensive medicine, the New England Journal of Medicine says caps cause little effect on defensive medicine.   He also argued that many people are sued when they should not be. Presumably his friends have told him that they had been sued in cases that lack merit. I have no doubt many doctors say such things regularly. Howver, Illinois does have a certificate of merit for medical neglect claims which requires a doctor to certify that there is malpractice before the suit can proceed.

The court in Steak and Shake vs the Worker’s Compensation Commission addressed what is now a common issue in politics. Groups in Illinois wish to limit liability for workers’ compensation claims by only allowing the case to be compensable if it is the “primary cause” of the condition. This naturally sounds reasonable to people in the public. Why shouldn’t the primary cause be the test?

What people fail to appreciate is that “primary cause” in workers’ compensation claims really means eliminating aggravations of pre-existing injuries as claims. The Steak and Shake case is it is a good example of why suing “primary cause” as a test is unreasonable to older claimants and eliminates legitimate claims involving pre-existing condition conditions.

In Steak and Shake vs. Illinois Worker’s Compensation Commission the petitioner was the manager for Steak and Shake. She was busing tables to keep customer flow moving. As she was wiping down the table she felt and heard a large pop in her right hand. She immediately felt excruciating pain that began in her thumb and radiated across her hand.

Medical error is now the third leading cause of death in the United States. The first two are heart disease and cancer. This, according to a British Medical Journal analysis by Martin Makary and Michael Daniel, professor at the Johns Hopkins University School of Medicine.

This article follows on several studies, including the landmark Institute of Medicine “To Err Is Human.” In To Err Is Human The Institute of Medicine, the branch of the government that studies medical issues, found that 98,000 people were dying from medical errors in the United States. This put the number of deaths at higher than work injuries and car wrecks combined.

According to Makary and Daneil, the Centers for Disease Control and Prevention failed to categorize medical errors as a cause of death. The article criticizes the medical community for using an international classification of disease (ICD) system as the primary indicator of death. Causes of death not associated with an ICD code, such as human error, are not captured in the system. Accordingly, there is no real way to track how many people die of medical errors on a yearly basis in the United States without extensive research, like they did.

We had the honor of having George Patrick, a workers compensation lawyer from Indiana, on the radio on Saturday, March 14, 2015, Pi day.  This is especially interesting to me because I have heard so many people talk about the differences between the Illinois Worker’s Compensation system in the Indiana Workers Compensation System.  Some people believe that Illinois should save money by following in the footsteps of Indiana.

This interview followed the recent ProPublic/NPR report about how states are demolishing their workers compensation systems.  Judges have called the modern workers compensation systems “inhumane” according to ProPublica/NPR.

In the same week, OSHA (Labor Department’s Occupational Safety and Health Administration) came out with a study that says that Workers Compensation systems are failing injured workers throughout the states.  OSHA says that injured workers’ incomes are, on average, nearly $31,000 lower over a decade than if they had not been injured.

The Center for Justice and Democracy released a study discussing the contingency fee system in the United States of America. It is titled “Courthouse Cornerstone: Contingency Fees and Their Importance for Everyday Americans.”

The report discussed the contingency fee system. Contingency fees are frequently used by lawyers in order to help their clients. They are especially useful for people who cannot afford to pay high lawyer fees associated with litigation.

The study concluded that contingency fees are helpful to attorneys and clients. Contingency fee lawyers take large risks associated with a claim. They invest a great deal of time and money into their case. If they lose they do not get paid. Accordingly, the contingency fee allows lawyers to take cases to help their clients.

Tort reform advocates frequently claim physician supply is a tort reform issue. Proponents claim that unless there is reform physicians will flee the state. As an Illinois injury claim lawyer who accepts medical malpractice claims I believe this is relevant to Illinois law because lawmakers here have tried to cap damages in Illinois medical malpractice claims three times. The Illinois Supreme Court has held these caps unconstitutional each time.

In a recent article entitled “Does Tort Reform Affect Physicians Supply – Evidence from Texas“, David Hymen, Charles Silver and Bernard Black examine the question. David Hymen is from University of Illinois, School of Medicine and Law. Charles Silver is from the University of Texas, School of Law.

The authors chose Texas because it adopted fairly strict reforms in 2003. Texas capped non-economic damages against physicians to $250,000.00 with no adjustment for inflation. There is also a cap of $250,000.00 applies to each hospital with a total cap of $500,000.00 for non-economic damages. Lawsuits dropped significantly. Payouts dropped 70%. The authors felt that any physician increase or reduction should be apparent by now.

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