Damages


According to Forbes. the Supreme Court of Oklahoma struck down a tort reform package the Oklahoma legislature passed in 2009.  The single law included numerous tort reform provisions, including a cap on non-economic damages and the requirement that an expert affidavit be filed with the petition in certain negligence cases.

The Supreme Court ruled that the law violated a constitutional requirement that a bill deal with a single subject.  The purpose of the law is to prevent a lawmaker from adding provisions to a bill that a lawmaker would feel log-rolled into agreeing with, in order to pass the provisions of the bill the lawmaker agrees with.

This news comes just days after a report out of Tulsa, by KJRH, that two more of Dr. Scott Harrington’s patients have tested positive for hepatitis.  If you have not previously seen the reports, Dr. Harrington is a dentist in Oklahoma who infected 80 patients with HIV and hepatitis, by using unsanitary conditions, including the use of dirty needles on patients.  The doctor is protected by damage caps the Oklahoma legislature put on these types of negligence cases.  The nearly 7,000 patients the doctor treated and the untold number of people infected by his horrible practices (negligent acts), are not able to obtain full redress for their injuries because of what the Oklahoma legislature has done.

The action of the Oklahoma Supreme Court, in striking down this onerous law, is a positive step in the right direction for the people of Oklahoma.

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According to a story in the Houston Chronical (also reported on in the New York Times), Texas tort reformers are at it again.  On the horizon in the Texas Legislature this year are several bad and unneeded “reforms”.  One law being proposed is called “loser pays”.  It is an old idea with a deceiving moniker.  The law, as proposed in a draft by Governor Perry, would make the person who brings the lawsuit pay for the expenses and attorney fees of the other party if they ultimately lose their lawsuit.  That might sound fair to some, but the law is one-sided.  The only time the loser pays is when the loser is the plaintiff.  If the loser is the defendant, which is the case in a majority of lawsuits filed, the defendant is not required to pay expenses and not required to pay the winner’s attorney fees.  Not anyone’s idea of fair.  But fairness is not the point.   

The law is being proposed as a measure to stop frivolous lawsuits.  In the Times article, a professor at the UT School of Law said no serious studies on frivolous lawsuits have found that frivolous lawsuits are a real problem.  If the law is a solution to a non-existent problem, why are taxpayer dollars being wasted on this issue.  It is time for the politicians to get back to work and quit raising the lawsuit boogeyman promoted by insurance and business interest.  These special interest groups raise this issue every couple of years to promote their goal of limiting their personal liability and ultimately to shirk their personal responsibility to average citizens.

“Loser pays” is a measure designed to put fear in the heart of the average person who wants to assert their right to seek justice and make a claim.  Any attorney the claimant consults with will be required to tell the claimant that if there is an unjust outcome and they lose the case, they will owe the defendant their attorneys fees.  Even when someone feels they are right, they will be reluctant to bring a suit, out of fear that an already bad situation could possibly be made worse.  This is the response business and insurance lobbyists are looking for in this measure.  But business and insurance interests will never have that same fear, because the proposal does not ask them to pay costs if the person who brings the suit is successful.

Texas is also looking at regulating attorney fees.  We all know that big businesses and insurance companies can hire any lawyer they want.  In fact many insurance companies have lawyers on their payroll.  A regular person sometimes can’t afford to hire an attorney.  Contingency fees make it possible for the little guy to get legal representation on par with what big businesses can afford. 

Texas legislators want to cap contingency fees at a low-level.  Free enterprise is the cry of every legislator who would push this kind of bill and no one is suggesting a cap on what insurers and big businesses pay their lawyers.  But it is ok to limit what kind of representation the little guy can receive, while encouraging the deep pockets that would obstruct access to the system.  Think what would happen if the NBA decreed that half of the teams can pay as much as they want for their players and put a cap on what the other teams could pay.  Not a fair system.  But fairness (justice) is not the goal.

An editorial in the Oklahoman talks about a tort reform bill passed last year in Oklahoma.  The bill is of the sort contemplated by the article I talked about yesterday.  The 2009 reform bill passed in Oklahoma put a cap of $400,000 on non-economic damages, and was supposed to create a taxpayer financed indemnity fund so that the state could pay the amounts above the cap when the cap is waived. 

Like the article yesterday stated, reformers are looking to shift their burden, the burden of personal responsibility to the state and thus to the taxpayers.  The editorial states that if the taxpayers of Oklahoma don’t have $20 million to seed the fund with, then the law will not go into effect.  Big business must have some good lobbyists up in Joklahoma, becuase I can’t imagine how a legislator is going to explain this one to his constituents.

The parties have agreed to a $54 million settlement in a lawsuit brought by Wal-Mart workers in Minnesota, according to a story in the LA Times.  The workers claimed that Wal-Mart cut their break times and allowed employees to work off the clock.  The judge in the case said Wal-Mart violated the law more than 2 million times by denying workers their break time and forcing workers to work off the clock for no pay.  Wal-Mart faced possible fines of $2 billion in the case. 

According to Walmartwatch.com, in late December 2008 Wal-Mart announced it would settle 63 wage and hour lawsuits pending against it, about 86% of the total lawsuits pending against it on this issue.  The website says these suits have uncovered a corporate culture of cutting costs by hiring below the preferred staffing levels and rewarding managers for keeping labor costs down.  The Minnesota lawsuit outlines some of the preferred methods used to keep costs low. 

The settlement is available for 100,000 workers who worked at Wal-Mart stores in Minnesota between the years 1998 and 2008.

The family of a Philadelphia man who passed away in 2006 was awarded a verdict of $2.185 Million after a jury found two doctors and a hospital liable for medical malpractice, according to a story on philly.com

Zachary James, the decedent, presented to the hospital with chest, back and leg pains.  Tests were ordered in the emergency room, but it took two hours for some of the tests to be performed.  About two hours into the event, the lead emergency room doctor left the emergency room for a meeting, leaving a doctor who was starting his first day in the emergency room as the only physician in the emergency room.  The new doctor was supposed to be in orientation and not left alone to handle the emergency room by himself. 

X-rays were taken of Ms. James, but were not read in the emergency room when they were developed.  Hospital procedure dictated ER physicians were to read the x-rays immediately.  Instead, the x-rays were sent to radiology where they were reviewed the next day. 

Mr. James passed away after spending eleven hours in the emergency room with no diagnosis.  He had a dissecting aortic aneurysm, a tear in the wall of the aorta that allows blood to flow between the aorta wall’s layers, and can result in a rupture of the wall, and death. 

The defense argued that even if the hospital Emergency Room physicians had quickly identified Mr. James’ condition, there still may not have been enough time to transfer him to another hospital to perform a life saving surgery.  The jury found the two doctors 84% liable and the hospital 16% liable for the damages.

The Federal Government is mandating new safety standards for automobile roofs, the first such new standards in thirty years, according to the New York Times Wheels Blog.  Automobiles are currently required to have roofs that can withstand pressure equal to one and a half times the vehicle’s curb weight, with that pressure applied to one side of the roof only, up to a six thousand pound maximum.  Vehicles over 6,000 pounds are not currently regulated.

The new standard, to be implemented by the National Highway Traffic Safety Administration, is that the vehicle’s roof must be able to withstand three times the weight of the vehicle, with pressure applied first to one side of the roof and then to the other side of the roof.  Safety experts claim that the two sided test better approximates the conditions a vehicle experiences in a roll over situation.  The new standard also removes the six thousand pound cap on vehicles and brings vehicles in the 6,000 to 10,000 pound range under the regulations.

The NHTSA hopes that the tougher standard will prevent deaths from rollover crashes.  The Administration’s data shows 10,000 deaths annually from rollover crashes, under the current standard.  In the Administration’s press release, Transportation Secretary Ray Lahood states, “These new standards go a long way toward reducing deaths, but safety belts are the first, most important step everyone should take to protecting themselves and their families.” 

The phase in for the new requirements begins in September 2012.  The Administration has also mandated electronic stability control systems which will also help to prevent rollovers from occurring.

According to a story on philly.com, a jury in Freehold, New Jersey found a truck driver liable for a traffic accident, where the trucker had no physical contact with the other vehicles in the accident.  The truck driver was stopped in traffic and Thurman Baker, the driver of the car involved in the accident, was in a parking lot, trying to enter the roadway.  The truck driver waved Baker’s car across the lanes of traffic, where the car was hit by a motorcycle traveling in the other lane of travel.

The trucker told an officer at the scene he waved for the driver to enter into the highway, the sign that it is clear to go, but then later changed his story.  The jury in the case awarded the victim $1.5million.  His injuries included a concussion, permanent damage to his arm and five cracked teeth.

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