Louisville Personal Injury Lawyer - Tort Reform

Indiana Medical Malpractice Law Slashes Verdict

Karl Truman — Mon, 26 Oct 2009 14:07:00 GMT

A woman died of complications from a mechanical bowel obstruction that had perforated; the woman's estate blamed her death on the hospital fo rtemporarily misplacing a radiological film that would have revealed the seriousness of her condition and on her surgeon for failing to operate promptly.

The woman was admitted to the hospital ICU with severe abdominal pain. Her surgeon and attending physician were unaware that the hospital did an x-ray several days earlier that revealed a mechanical small bowel obstruction. This condition is considered a medical emergency that requires immediate surgery. However, the hospital misplaced the x-ray.

Her condition continued to deteriorate. She became septic, developed acute respiratory distress syndrome and was placed on life support. Tragically, she died shortly thereafter.

The case was tried in Indianapolis, Indiana. The jury found in favor of the defendant doctor, but awarded damages against the hospital in the amount of $8,500,000.00. Under Indiana law, the court reduced the award to the statutory maximum of $1,250,000.00. The jury was not allowed to know about this statutory limit.

How would you feel if this happened to your wife, daughter or mother? Would you willingly agree that the state legislature should place an arbitrary legal limit on the value of your loved one's life?

The other interesting aspect of a case like this, that the jury is not allowed to know, is that the hospital is only responsible up to $250,000.00. So, regardless of how horrible the injury, or how reckless their behavior, that is the most they can be held accountable for. Above that, there is a state fund that is responsible for up to an additional $1,000,000.00 for the total of $1,250,000.00.

With such a limit of damages, what incentive does a doctor or hospital have to negotiate a reasonable settlement? Since doctors and hospitals win most medical malpractice trials anyway, they have the exact opposite incentive - make injured victims go to trial on every case. They have nothing to lose and the odds are in their favor to win anyway.

This is one of the effects of placing arbitrary caps on damages. Would you call this "fair" if it were your family member?

Originally posted at InjuryBoard by Karl Truman

Arbitration Fairness Act of 2009

Karl Truman — Mon, 11 May 2009 16:39:08 GMT

The Arbitration Fairness Act of 2009 was introduced in February of this year. The act proposes that "pre-dispute arbitration agreements will not be enforceable if it requires the arbitration of employment, consumer, or franchise disputes." The act is aimed at preventing mandatory arbitration clauses from being enforceable against parties of unequal bargaining power.

Arbitration agreements are found in many consumer contracts. Since these agreements contain boiler-plate take-it-or-leave-it terms (commonly referred to as adhesion contracts) and are often in fine print, many people do not realize the rights they are waiving and the legal ramifications or impact they may face by signing such an agreement. Congress stated that its purpose for amending the Federal Arbitration Act is to level the playing field between consumers and corporations.

Why are mandatory arbitration clauses so controversial? In 1995 the Supreme Court held in Allied Bruce Terminix Companies v. Dobson, 513 U.S. 265, that mandatory arbitration agreements are enforceable under the Federal Arbitration Act. However, this precedent has been the source of much controversy since many opponents of these clauses contend that it takes away from the 7^th amendment right to a jury trial.

Congress stated that "the Federal Arbitration Act was meant to be applicable only to disputes between commercial entities of generally similar sophistication and bargaining power," and that the proposed amendment was due largely in part to the Supreme Court's construction of the act.

This bill, if passed, will affect nearly all consumers. As stated by the American Association of Justice (AAJ),

Forced arbitration clauses are hidden in the fine print of everything from cell phone, home, credit card and retirement account terms of agreement to employment and nursing home contracts. Just by taking a job or buying a product or service, consumers and employees are forced to give up their right to take their case to court if they are harmed by a corporation.

Even though these provisions may be declared enforceable by a court if they are deemed unconscionable, there is no standardized test for making such a determination. Furthermore, the burden of proving unconscionability is on the party seeking to void the provision, which is most often the consumer or employee.

Since most consumers and employees do not have the same monetary resources as large companies, bringing a claim asserting the unconscionability of an arbitration agreement may be too costly to pursue. Therefore, many people grudgingly submit to these arbitration agreements.

Under the Arbitration Fairness Act of 2009, these mandatory provisions will be declared unenforceable and will protect consumer, employees, and franchisees from mandatory arbitration agreements unless both parties consent.

Originally posted at InjuryBoard by Karl Truman

Nevada Re-Evaluates Its Limits on Medical Malpractice Damages

Karl Truman — Fri, 24 Apr 2009 17:32:27 GMT

In 2004 Nevada passed a law that capped punitive damages to $350,000 in medical malpractice cases. The bill was part of the “Keep our Doctors in Nevada Act” in which supporters claimed limits on recovery were necessary in order to keep doctors in high specialties in the state.

Now, due to a hepatitis outbreak, as a result of unsanitary vaccination practices, Nevada has re-evaluated its stance on tort reform and is initiated the passing of AB495, which would eliminate the cap on non-economic damages.

The hepatitis outbreak resulted in 50,000 patients being notified that they were put at risk for contracting the disease. The AP reports that this is the largest patient notification in U.S. history.

Opponents of AB495 reiterate that the lifting the limit on non-economic damages will place doctors in the same precarious situation to either relocate their practices or face high insurance premiums.

Supporters of the bill contend that $350,000 does not adequately compensate victims of medical malpractice. For example, Cathy Bussewitz of the Associated Press noted:

Megan Gasper, 33, a mother of two children, told legislators she contracted hepatitis C after having two colonoscopies performed at the two clinics where the outbreak occurred, the Endoscopy Center of Southern Nevada and the Desert Shadow Endoscopy Center.

"This has pretty much stolen a year of my life," Gasper said, fighting tears. "When you have to get up out of bed every day, and know that you have to take a medicine that will seriously affect your ability to play with your children, it's hard to give yourself a self-injection."

Former patients and family members told frightening stories of substandard care. Kevin Murray lost his daughter when doctors failed to notice the signs of meningitis. Michael Washington, who was the first patient to test positive for hepatitis C after the outbreak, said he would never be normal again.

To some supporters of the bill, these claims reinforce their beliefs that limits on non-economic caps decrease the quality of care patients will receive since doctors have limited liability for their mistakes.

While it’s clear that Congress intends for tort reform to reduce the amount of insurance premiums paid by doctors, there is much conflict as to whether capping “pain and suffering” damages is effective. In 2007, Public Citizen issued “The Great Medical Malpractice Hoax.” In this report, Public Citizen noted:

American Medical Association President Donald Palmisano told the 2004 Annual Meeting of the AMA House of Delegates that “what is driving this crisis are the out-of-sight awards some runaway juries are handing out in certain liability cases.” This assertion is incorrect on the facts – when adjusted for inflation, the median judgment grew only from $125,000 in 1991 to $139,100 in 2005, a mere $14,000 over 14 years. Such a modest increase hardly suggests that juries are irrational

In addition, it was further reported:

· The number of malpractice payments declined 15.4 percent between 1991 and 2005.

· Adjusted for inflation, the average annual payment for verdicts declined 8 percent between 1991 and 2005.

· Payments for million-dollar verdicts were less than 3 percent of all payments in 2005.

These are just sone of many discrepancies regarding tort reform. Even insurance companies seem to have difficulty providing consistent statistics that tort reform is effective.

For more facts on medical malpractice claims and tort reform click here.

Originally posted at InjuryBoard by Karl Truman