A personal injury and wrongful death lawyer is well aware of efforts by business and insurance interests to lobby for tort reform legislation. This legislation takes a number of forms. Some tort reform proposals try to restrict attorneys’ fees. While this sounds like a benefit to the client, in fact, many clients have a difficult time finding a lawyer in States where fees are restricted. The risks and costs of litigation are so high, that when fees are restricted, it is economically unfeasible for a personal injury lawyer to pursue many claims, particularly medical malpractice cases which involve tremendous expense and time.
Another tort reform proposal involves caps on damages. Often, a cap is placed on noneconomic losses, such as pain and suffering, emotional distress, loss of enjoyment of life, disability and loss of usual activities. Again, while these caps seem geared toward preventing runaway juries and excessive verdicts, the fact is that runaway jury verdicts are extremely rare and excessive verdicts are already subject to being reduced by the trial judge. So, there is already protection built in to the civil justice system. The true effect of caps on noneconomic damages is to prevent full and fair compensation. The impact of this legislation falls disproportionately on the elderly, women, children and the poor.
Note that under the “American rule,” attorneys’ fees are not awarded in personal injury and wrongful death lawsuits. Therefore, the attorney’s fees and expenses will be paid out of the gross recovery. Depending on the type of lawsuit, fees can range from 25% to 50%. Again, depending on the type of personal injury lawsuit, expenses can range from a few hundred dollars to several hundred thousand dollars. If a jury determines that a personal injury victim’s damages are, for example, one million dollars, and 50% of that award goes to attorney fees and expenses, the injury victim only receives half justice. Consider further that when caps on damages reduce that one million dollar award to, say, $800,000.00, the injury victim receives a smaller fraction of the recovery. This discourages meritorious claims, and emboldens insurers to aggressively defend, thereby raising the cost of litigation. As you can see, nothing good comes out of caps on damages unless you are an insurance company.
To drive home the effects of tort reform, consider this example. A patient suffers amputation of her lower legs and fingers as a result of medical neglect and nursing negligence that delayed treatment of septic shock. The patient, heroically meeting the challenges of the resulting disability, continues through college so she does not have any economic loss associated with reduced earning capacity. In a State with a typical cap on noneconomic damages, this medical malpractice victim’s total award might be capped at $500,000.00 or less. No rational person can agree that that is full or fair compensation, particularly after it is reduced further by attorney’s fees and case expenses. Consider also that the insurance company, in negotiating a settlement of this medical negligence claim, starts the negotiation at the maximum amount recoverable, or $500,000. Therefore, in settling the case in order to avoid further case expenses and the uncertainty of trial, the injury victim must accept even less than $500,000.00 to settle the claim. This is not justice.
A medical negligence lawyer in Cleveland, OH will continue to fight tort reform legislation. Though it sounds like it is good for society, it is unnecessary and creates profound injustice for those who are most vulnerable.
Thanks to Mishkind & Kulwicki Law Co. for their insight into medical malpractice claims and tort reform.