A Step in the Right Direction

In the upcoming elections, in making your decision about who will get your vote,

WASHINGTON, August, 25, 2012 – For over 20 years, Missouri juries, like too many other juries in the United States, were not necessarily the last word in providing justice to civil litigants who took their claims to court.  Damages caps have now been removed in Missouri, and those injured due to the neglect of others will now be responsible in full, as a jury determines.

Deborah Watts, a Missouri mom, filed a medical malpractice lawsuit, alleging her son Naython was born with disabling brain injuries because Lester Cox Medical Centers and its associated doctors provided negligent health care services.  A jury returned a verdict in her favor and awarded her $1.45 million in non-economic damages and $3.371 million for future medical expenses. 

The trial court, because of existing Missouri law, was required to reduce the non-economic damages award to $350,000.00. Thus, translated, despite a jury awarding Ms. Watts $1.45 million dollars, an arbitrary law forced the trial judge to reduce that amount and enter the verdict to a significantly smaller amount, $350,000.00.

Non-economic damages compensate for harms and losses that cannot be measured by a dollar-for-dollar analysis. Concepts of disruption of life, physical pain, mental or psychological suffering, embarrassment, distress, and the value for loss of life, all of which are not medical bills or lost income, are routinely the target of tort reform campaigns. 

Punitive damages are also often referred to in these conversations as “non-economic,” as these damages may be available and awarded to victims, not to compensate, but to punish the wrongdoer. 

By way of example, suppose you are involved in an automobile collision and you hurt your neck and back. After two months of medical care, you have a bill of $4,000.00. You also find you lost two weeks of pay, or $2,500.00. You now have $6,500.00 in total economic damages.  If you go to court, then win $10,000.00, the “additional” $3,500.00 in this example would represent “pain and suffering” and would be considered non-economic damages.

So congratulations to the Missouri Supreme Court for overturning a 20 year old Missouri law as unconstitutional, and for allowing a child severely injured at birth and suffering disabling brain damage to receive compensation for his injuries based on facts found by the jury.

Happily, there are currently “cap” challenges in Kansas, Mississippi, Florida and Indiana.  Hopefully these states’ high courts will see the Missouri message and restore the rights of the citizens in their states, allowing them to have their day in court if and when tragedy strikes.

The victory in Missouri was hard fought, ending in a 4-3 decision. Missouri’s State Attorney General represented the negligent health care providers in this case.  The “friend of the court” briefs were staggering in number and were presented by a veritable Who’s Who in the Missouri and other national tort reform legions: 

The Missouri Chamber of Commerce; the American Tort Reform Association; Property Casualty Insurers Association of America; Physician Insurers Association of America; National Chamber Litigation Center Inc.; American Insurance Association; National Association of Mutual Insurance Companies; Missouri Hospital Association; Missouri Organization of Defense Lawyers; Washington University, Saint Louis University, and The University of Missouri; American Congress of Obstetricians and Gynecologists; Missouri College of emergency Physicians; Missouri Association of Rural Health Clinics; the American Medical Association, and eight other national and state specialty medical associations.

Missouri’s high court recognized that one of a jury’s primary functions is to determine a plaintiff’s damages:

Once the right to a trial by jury attaches, as it does in this case, the plaintiff has the full benefit of that right free from the reach of hostile legislation. Section 538.210 imposes a cap on the jury’s award of non-economic damages that operates wholly independent of the facts of the case. As such, section 538.210 directly curtails the jury’s determination of damages and, as a result, necessarily infringes on the right to trial by jury…

The term “tort reform” caught on and became the rallying cry of those seeking to avoid responsibility for harms they cause others, and it became the buzz phrase representing ideas and laws designed to change the way our civil justice system works.

Limiting jury verdict awards has always been one of several checklist items in the tort reform movement.   Tort reform isn’t one single idea or law.  Rather, most tort reform laws or proposals share the following goals:

  • To make it more difficult for injured people to file a lawsuit
  • To make it more difficult for injured people to obtain a jury trial
  • To place limits on the amount of money injury people can receive if they prevail in court

It is interesting to sit back and observe the public’s perception of lawsuits in our country.  Most people agree with the propositions:

  • there are too many lawsuits
  • too many lawsuits are frivolous
  • greedy lawyers and their clients are clogging up our courts’ dockets
  • we must prevent runaway verdicts

Sadly, none of those assertions are true, and all or most of them are believed because of the extraordinary money thrown at tort reform efforts over the last several decades by the insurance industry, by the tobacco industry, by the pharmaceutical industry, and by others, all of whom wanting to help those industries and others pay less, or pay nothing, for the harms they cause.

We Americans love the little guy.  Erin Brockovich stands out as perhaps the best known.  We hate “big tobacco” and applaud when the tobacco industry gets hit for millions by former smokers or their families who sue for cancer conditions caused by tobacco products.

Yet, most Americans support tort reform without realizing they are cutting off their own rights.

Beyond the up-front efforts of tort reformers, the insidious agenda is to keep the misdeeds of corporate America out of your view.  If a jury verdict can be limited to $250,000.00 or $350,000.00, there is no incentive for a plaintiff to go forward with a lengthy and expensive trial when the wrongdoer offers that capped limit.  Moreover, often the offer to settle for that limit is accompanied by a requirement of confidentiality.  The translation here can be seen by an example:  a company makes a defective product, it maims you for life, you can only recover $250,000.00 if you sue, the company offers you that money to avoid the lawsuit and requires you keep quiet about the entire matter.  The company can afford to pay the claim, because then it can keep peddling the defective product, which nets them profits of many multiples of dollars beyond the paid claim amount.  Because of the confidentiality provisions of these cases, you never hear about what happened, what products are not safe, or what practices can harm you.  The cases you do hear about are clearly just the tip of the iceberg.

The effect of tort reform allows corporations to keep their laundry dirty and to allow their financial well being to thrive to your detriment, that of your family, and to all consumers.

In the upcoming elections, in making your decision about who will get your vote, consider, among other things, how important your right to trial by an unburdened jury is, which candidate is on the side of protecting that right, and which is aligned with corporate interests.  Heaven forbid you or your family member needs to rely on a jury’s verdict in a state where tort reformers have successfully lobbied and had caps placed on how much you will get.

 

Paul A. Samakow is an attorney licensed in Maryland and Virginia, and has been practicing since 1980.  He represents injury victims and routinely battles insurance companies and big businesses that will not accept full responsibility for the harms and losses they cause. He can be reached at any time by calling 1-866-SAMAKOW (1-866-726-2569), via email, or through his website. He is also available to speak to your group on numerous legal topics.  Paul is the featured legal analyst on the Washington Times Radio, on the Andy Parks show, on Wednesdays at 5:15 P.M., and he is a columnist on the Washington Times Communities.

His book The 8 Critical Things Your Auto Accident Attorney Won’t Tell You is free to Maryland and Virginia residents and can be obtained by ordering it on his website; others can obtain it on Amazon.

 

 


This article is the copyrighted property of the writer and Communities @ WashingtonTimes.com. Written permission must be obtained before reprint in online or print media. REPRINTING TWTC CONTENT WITHOUT PERMISSION AND/OR PAYMENT IS THEFT AND PUNISHABLE BY LAW.

More from Leading Edge Legal Advice for Everyday Matters
 
blog comments powered by Disqus
Paul Samakow

Attorney Paul Samakow brings his legal expertise to the headlines from life and real-life experience to The Washington Times Communties. A native Washingtonian, Samakow has been a Plaintiff’s trial lawyer since 1980, with offices in Maryland and Virginia. 

Contact Paul Samakow

Error

Please enable pop-ups to use this feature, don't worry you can always turn them off later.

Question of the Day
Featured
Photo Galleries
Popular Threads
Powered by Disqus