The Great Equalizer Is In Jeopardy
The
court system is the greatest equalizer in America. It is the one and only place
where the average citizen stands equal to the biggest corporation, most
prominent hospital or wealthy physician. Recent efforts at "tort reform" have
eroded much of the protections that American citizens have historically been
blessed to have. Access to the courts is being restricted indirectly by virtue
of the various tort reform measures that have been passed in the State of
Georgia.
One way in which access to the courts has been restricted in Georgia is by the placement of "caps" on non-economic damages. Georgia has recently enacted a law that places a $350,000.00 cap on non-economic damages such as pain and suffering. Why does this affect access to the courts?
Medical malpractice lawsuits are long and very expensive to pursue. Lawyers ordinarily take these cases on a contingent fee basis and most usually advance the significant expenses necessary to pursue these cases. Often, these cases take years to bring to trial, necessitating hundreds of hours of work and the outlay of out-of-pocket case expenses that may exceed $100,000.00. In a case where the maximum recovery may be limited to $350,000.00, the defense lawyer defending the case (hired by the doctor's insurance company) has no incentive to reasonably resolve the case by way of settlement since regardless of whether a jury of peers believes the injury justifies an award of a million dollars or more, the maximum amount that the victim can recover for non-economic damages, such as pain and suffering, will be $350,000.00. To the contrary, the defense lawyer may run up hourly charges for his time, to be submitted to the insurance company, with little incentive to settle. From an economic standpoint, my law firm is no longer able to consider taking on cases of malpractice occurring after the passage of Georgia's new law imposing caps (February 16, 2005) where the harm to the malpractice victim is solely non-economic. Unfortunately, due to the tort reform changes, we are not able to financially justify taking cases where there are no significant future medical expenses or loss of income.
Placing caps on the amount of damages that can be recovered for non-economic loss directly discriminates against young children, stay-at-home moms, and senior citizens who are no longer actively employed. Those individuals are often unable to establish a sufficient economic loss (because of the fact that they have not lost income) to make the handling of their malpractice case economically feasible to a lawyer.
For example, a retired person who mistakenly has a leg amputated as the result of malpractice will be unable to demonstrate any significant economic loss. Since there will not be any significant future medical expenses or any future loss of income, the maximum damages that could be recoverable typically would be $350,000.00. Without the incentive to resolve this case by settlement, a case of this nature could drag on for several years with litigation expenses in excess of $100,000.00. Many lawyers simply cannot justify accepting a case of this nature where the defense will have the ability to drag out the case and delay for years. This simply is not fair, but it is the end result of our new law.
Advocates of tort reform often claim that the jury system is out of control, besieged by countless personal injury cases. Let's look at the statistics: On a national basis, 47 percent of all lawsuits filed are domestic lawsuits, involving divorce, child custody and similar issues; business lawsuits, where businesses sue each other (such as K-Mart suing Wal-Mart, claiming that Wal-Mart copied its layout plan for its checkout counters or where McDonalds has sued an Italian caterer for slandering its French fries by stating they taste like cardboard), also make up 47 percent of the national caseload. Cases brought by individuals make up only six percent of all lawsuits filed each year in our nation.
Tort reform advocates, who are focused on medical malpractice cases, are quick to assert that doctors are being driven out of the practice by high insurance premiums. The statistics indicate that the number of court cases in Georgia each year alleging medical malpractice is a mere one quarter of one percent, and of those cases that go to trial, only 15 percent of the patients prevail.
Instead of focusing on the real problem, advocates of tort reform have placed their focus on false issues. Certainly, insurance companies are running amuck with respect to the premiums that they charge for coverage. Insurance companies are overcharging for premiums and doctors are not doing a good job of policing their profession. But, the problem is not an overwhelming abundance of spurious lawsuits and runaway verdicts. In Georgia, over the entire state, last year there were only 11 reported cases that produced awards of one million dollars or more, including medical malpractice cases.
The real problem is the degree of preventable injury and deaths that occur each year due to medical malpractice in hospitals and doctors' offices. Last year's study performed by the Harvard School of Medicine found that there were 98,000 deaths in America each year due to medical malpractice in hospitals. Doing the math reveals that 268 people die each day, needlessly, as the result of medical malpractice! We are not talking about deaths that are caused by unavoidable complications; we are talking about deaths that are the result of failures of doctors and other medical professionals to adhere to accepted standards of practice.
Placing caps will not lower insurance premiums. Minnesota, for example, has no caps, yet it has the lowest premiums while rates are going up in other states that have caps, such as Colorado, Montana and Utah.
Earlier this year, the nation's largest medical malpractice insurer, GE Medical Protective, admitted that medical malpractice caps on damage awards and other limitations of recoveries for injured patients will not lower physicians' premiums. The revelation made by this insurer was made to the Texas Department of Insurance (TDI) in a regulatory filing. The documents submitted by GE Medical Protective were designed to explain why the insurer planned to raise physicians' premiums 19 percent, a mere six months after Texas enacted caps on medical malpractice awards. (In 2003, Texas lawmakers passed a $250,000.00 cap on non-economic damage compensation).
According to the Medical Protective filing, "Non-economic damages are a small percentage of total losses paid. Capping non-economic damages will show loss savings of one percent." This document can be downloaded at the following website: http://www.consumerwatchdog.org/insurance/rp/rp004689.pdf.
Restricting access to the courts by and through tort reform is in essence, taking David's slingshot away and giving it to Goliath. If the erosions of our jury system continue to occur, ultimately, there will be no accountability. Ultimately, wronged citizens will be forced to endure the hardships and suffering caused by life-altering injuries without assistance from those who have wronged them.
Next issue - Punitive Damages: Keeping Corporations Honest and Accountable.
Wayne Grant has been recognized by his peers as one of The Legal Elite: Georgia's Most Effective Lawyers. GeorgiaTrend - December 2004, and was also chosen as one of Georgia's SuperLawyers. Superlawyers and Atlanta Magazine - March 2005. Mr. Grant and his firm concentrate on cases involving severe, life-altering injury or death, caused by malpractice, automobile accidents and defective products. Mr. Grant's firm website is: www.waynegrant.com and his office telephone number is: 404-942-2305.
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