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Wednesday, February 3, 2016

Collateral Source Rule and Benefits to Injured Citizens

Legislators have again proposed changes to the Collateral Source Rule in Wisconsin.  This evidentiary rule has been in place in Wisconsin for over 100 years.  The rule protects innocent, injured citizens of Wisconsin in their ability to fully recover sums of money they are legally entitled to for their injuries.  The changes would do away with that, and allow a wrongdoer to benefit from the fact that the injured party had the foresight to buy health insurance to help cover medical costs.  This would be a "windfall" for the wrongdoer and his or her liability carrier.

Below is the letter I sent to Senator Vukmir.  I encourage all of you to use this as a template and contact your representatives and oppose changes to the Collateral Source Rule.  The proposed changes negatively impact hard working citizens who have paid insurance premiums in order to help with medical costs, especially in the event they are injured by a wrongdoer.

February 3, 2016

Senator Leah Vukmir
131 South, State Capitol
P.O. Box 7882
Madison, WI 53707-7882

            RE:      SB 22:  Collateral Source Bill

Dear Senator Vukmir:

            I am an attorney practicing in Wauwatosa and I am a resident of your District, residing in Wauwatosa.  I am writing you regarding SB 405, a proposed Bill to abrogate the Collateral Source Rule in Wisconsin. The purpose of this letter is to provide you with some additional information regarding this fairly complicated issue in the hopes that you will consider opposing this legislation in its entirety.

1. Introduction to the “Collateral Source Rule.”

            The target of this bill is a Wisconsin law known as the “Collateral Source Rule.” The Collateral Source Rule has been a part of Wisconsin law since at least 1908. Wisconsin courts have long recognized that an injured party has a right to recover from the wrongdoer “the reasonable value of the medical treatment reasonably required by the injury.”  This rule is based on “Wisconsin’s significant interests in fully compensating victims of ordinary negligence.”  The “Collateral Source Rule” prohibits the introduction of the amount actually paid by the injured party’s health insurer for medical treatment in order to prove “the reasonable value of medical treatment.”

            Those who advocate for a change in the law characterize this rule as allowing a “windfall” or “phantom damages” because it allows an injured party to recover past medical expenses that exceed the amount actually paid by the injured party’s insurer.  This is an incorrect view of the operation of the collateral source rule that runs counter to the most recent rulings from the Wisconsin Supreme Court.

            The collateral source rule was recently reaffirmed by all the Justices currently sitting on our Supreme Court in the decision in Orlowski v. State Farm Ins. Co., including those Justices with a long history of protecting the interests of Wisconsin’s business community.  In Orlowski, the court recognized the significant benefits associated with the current rule: 

       First, the rule deters a wrongdoer’s negligent conduct by placing the full cost of the wrongful conduct on the wrongdoer.

       Second, the rule assures that the injured party is fully compensated (“The collateral source rule protects plaintiffs by guarding against the potential misuse of collateral source evidence to deny the plaintiff full recovery to which he is entitled.”)

       Third, the rule allows the injured party to receive the benefit of the premiums paid for coverage that he or she had the foresight to purchase. 

            In fact, the court in Orlowski addressed head-on the very argument raised by proponents of this change in the law, rejecting the “phantom damage” argument based on the recognition that the injured party has paid premiums for health insurance coverage and should receive the benefit of these premiums, not the wrongdoer. There is nothing irrational or unfair about a rule that prohibits a wrongdoer from benefitting from the planning and foresight of an injured party, who has the wisdom to plan ahead and purchase insurance.  In addition, the proposed elimination of the collateral source rule will impose a greater burden on the health care providers that treat the injured party and the insurers that provide their medical coverage.

2. How Changing the Law Penalizes Workers with Insurance.

            Explaining how the current law works and how changing the law will penalize those who buy health insurance is best shown by example. I will compare John, who has health insurance, to Doug, who does not have health insurance.

            John lives is New Berlin and is a productive member of society who works at Buy Seasons, Inc. John’s employment with Buy Seasons includes health insurance. As with all workers, John pays premiums for this health insurance. As John leaves work, he gets into an auto accident because a drunk driver runs a stop sign. As a result of the accident, John has to go to the emergency room. The emergency room charges John $10,000 for its services (the reasonable value of its services). John sends the bill to his health insurance. John’s health insurance pays $7,000 for the emergency room services because of the premiums John paid for his health insurance and because this amount was agreed upon by John, through his health insurance, and the emergency room.

            Under the Collateral Source Rule as it exists today, the auto insurance company for the drunk driver who ran the stop sign has to pay the reasonable value of the services John received at the emergency room without regard to what John’s health insurance paid. Stated another way, the drunk driver cannot argue that he/she should only have to pay $7,000. Under the Collateral Source Rule, the drunk driver does not get to benefit from John having worked hard to buy health insurance. Rather, John is entitled to the full amount charged by the emergency room and the drunk driver cannot argue that John is entitled to the discounted amount paid by his health insurance.

            SB 22 seeks to change the current law to penalize John for having worked hard to buy health insurance. Under the proposed change, the drunk driver would be allowed to argue that John is not entitled to the full amount billed by the emergency room ($10,000) but rather is only entitled to the discounted amount paid by John’s health insurance ($7,000). Under the proposed change, the drunk driver benefits from John having purchased health insurance.

            Now let’s compare John’s situation to Doug, a person who does not work and does not buy health insurance. Doug gets into the same auto accident and incurs the same $10,000 in expenses from the emergency room. Comparing Doug to John, Doug would be allowed to recover $10,000 for his medical bills (because he had no health insurance) and there would be no “Collateral Source” evidence introduced to allow for any reduction in this recovery.  Thus, changing the Collateral Source Rule penalizes John for working hard to buy health insurance and rewards Doug for not working hard to buy health insurance.

3. Response to the Issues Raised in Support of Changing The Law.

            Those advocating for a change in the law cite three reasons. First, the proponents state that the changing the law will prevent a “windfall” to the injured victim. Simply stated, this is wrong because the victim has paid thousands if not tens of thousands of dollars for health insurance premiums. The current law does not result in a windfall to anyone; rather, the current law is a common sense way to both prevent a person from being penalized for buying health insurance and prevent someone who injures another from benefiting from the injured person’s foresight in buying health insurance. As explained by Justice David Prosser in 2011, a windfall would occur to a negligent driver and his auto insurance company if the Collateral Source Rule was changed. In the case of Fischer v. Steffen, Steffen injured Fischer in an auto accident. Fischer incurred $12,157 in medical expenses. All of the medical expenses except $2,157 were paid by Fischer’s insurance. Steffen argued that he only had to pay the amount not written off by Fischer’s insurance ($2,157) rather than the amount incurred by Steffen ($12,157). Justice Prosser wrote:

“The most striking fact about this case is that defendant Steffen caused $12,157.14 in medical expenses to Fischer but has been relieved of the burden of paying all but $2,157.14 toward these expenses. As a result, Fischer is being punished for their foresight in purchasing [ ] insurance with coverage for medical expenses, while Wilson Mutual (Steffen’s auto insurance company) receives a $10,000 windfall.”

            Second, the proponents state that the current law results in “inflated judgments” that result in increased insurance rates. There is no evidence to support this conclusion.  The Collateral Source Rule has existed in Wisconsin for over 100 years and no Wisconsin appellate judge or Supreme Court justice has ever said that the current law results in “inflated judgments.” 

            Third, the proponents state that a change in the law will bring Wisconsin in line with Indiana, Minnesota and Ohio. Following that logic, auto insurance premiums would likely increase as the average auto insurance premium in these three states is higher than Wisconsin. Specifically, Indiana’s average auto insurance premium is $2.47 per year less than Wisconsin while Ohio’s and Minnesota’s average auto insurance premiums are, respectively, $10.96 and $189.18 per year higher than Wisconsin.   There is no correlation between the elimination of the Collateral Source Rule and reduced insurance premiums.

4. Changing the Collateral Source Rule will have the Unintended Consequence of Increasing the Costs of Healthcare in Wisconsin.

            In addition, a change in current law will likely have significant consequences for health care insurers and health care providers in Wisconsin.  In most personal injury claims, the interests of the health care insurers and health care providers are directly aligned with those of the injured claimant either as a result of their right of subrogation or their assertion of a lien for recovery of health care expenses.

            There are numerous adverse risks to Wisconsin’s business community that are the unintended consequences off this proposed change in Wisconsin law.  Health insurers face the very significant risk of greater involvement in personal injury litigation as a result of expanded written discovery and depositions seeking information on the basis for their reduced reimbursements.  In addition to the costs associated with this discovery, there is also substantial risk of unwanted disclosure of the confidential negotiations between health care providers and insurers that form the foundation for the contractually reduced health insurance payments.  These additional costs and inconvenience will have an adverse impact on the bottom line for health insurers with subrogated claims.  In addition, the proposed legislation creates additional risk of reduced recovery of claims in settlement or the extinguishment of subrogated claims after settlement.  Reduced recovery and increased costs will result in increased health insurance premiums being passed on to your constituents. 

            Passage of this law will also result in increased costs to Wisconsin taxpayers.  The costs to the State of Wisconsin Medicaid program in reduced recoveries of State Medicaid funds through subrogation has been estimated by representatives of the DOJ and DHS as being “significant” if SB 405 becomes law.  It would be fiscally irresponsible to penalize Wisconsin taxpayers in an effort to benefit liability insurance carriers in this state.

            The adverse consequences of this legislation will impact not only health insurance carriers and state taxpayers, but also health care providers.   Although the legislation indicates that the bills and invoices, once submitted, create a presumption that the amount contained in the bill or invoice represents the reasonable value of the services provided, this presumption is now easily rebutted by the admission of the amounts paid by collateral sources, evidence that is currently inadmissible.  Once evidence of collateral source payments is introduced in the litigation, any presumption of reasonableness of the amounts billed evaporates, and the issue of reasonableness becomes a question of fact in the lawsuit.  The consequences for health care providers are significant.

            First, health care providers will be subject to subpoena in every personal injury claim to testify as to the basis for the amount billed to the patient and also to testify as to the basis for the contractually negotiated reduced sum paid by the patient’s insurer.  In situations where there exists no health insurance or where the provider decides to forgo the submission of the bill to insurance or to government agencies for reimbursement, the health care provider lien will be subject to attack by both the defendant and the plaintiff regarding the reasonable value of the service.  Evidence will now be admissible regarding amounts accepted by the provider from collateral sources such as insurance carriers and government funded health programs.  These adverse consequences will only increase costs to health care providers and reduce recoveries, which will naturally be reflected in additional increased costs of healthcare to your constituents.

            The primary entities that benefit from the proposed change in the collateral source rule are the property and casualty insurers that provide liability coverage to the negligent parties.  The legislation allows the wrongdoer and his/her insurer to benefit from the planning and foresight of the injured party and the premium funded benefits negotiated by the injured party’s employer and/or insurer.  Most importantly, it does so at increased cost and risk to health care insurers and health care providers in Wisconsin.  It is legislation that, at first blush may seem logical, but in reality is not in the interests of Wisconsin’s business community or is citizens.

            I apologize for the length of this letter, but I wanted to adequately cover the important issues surrounding this proposed drastic change in Wisconsin law.  I am always willing to sit and answer any question that you might have regarding any of the issues raised above.  Just have your staff contact me and I will make myself available.

Very truly yours,

James P. Scoptur

Wednesday, October 28, 2015

Worker's Compensation - from no-fault to presumption of fault

Today I read that Republican lawmakers in Wisconsin are fast-tracking a bill that would effectively end Worker's Compensation in Wisconsin - which has been a model for the country and one of the first states to enact such a law.       (

This bill would change the system from a no-fault system for the employee, to the presumption being the employee was at fault and the employee would have the burden to prove he or she was not a fault in order to obtain worker's comp benefits.

This guts the purpose of Wisconsin's long standing worker's comp law, and will result in minimal, if any, justice for injured employees.

In addition, the bill would allow an employer to send an injured employee to a doctor of the employer's choice (hint - they will help deny your claim); allow the employer to not pay wages while employee is recovering by firing the employee; and require the potential employee, when they are hired, about prior medical conditions or risk being denied benefits later on.

People may not care about the dismantling of the Government Accountability Board or doing away with John Doe, but every citizen in this state, every employee should care that their rights to compensation and justice are being obliterated if this bill were to pass, in any shape or form.

Our current political leaders clearly do not care at all about their constituents.

Friday, August 14, 2015

Statute of Limitations, Immunity, and less compensation for dog bite victims

First up today, I would like to discuss 2015 Assembly Bill 223 / 2015 Senate Bill 149, which were introduced in May, but are now gathering momentum.

This bill would reduce the Statute of Limitations in contract automobile accident cases involving injury claims under Uninsured or Underinsured Motorist Coverage, or for property damage claims.  The current Statute of Limitations for most claims involving contracts is 6 years from the date of injury.  The Wisconsin Legislature would like to reduce the Statute of Limitations to 3 years from the date of injury or loss.

In standard automobile accident cases (cases where you would sue another party and not your own insurance company, as mentioned above) the Statue of Limitations, for injury or death to an individual(s) is 3 years from the date of the injury or loss.  The bill would keep the 3 year Statue of Limitations for injury claims, but would change the Statute of Limitations to 2 years for a wrongful death claim.

Other than the obvious -- the legislature wanting to potentially bar claims by people who wait too long to hire an attorney and file suit and bar legitimate claims -- I cannot seem to find the point in changing the Statute of Limitations.  Although, I guess that would be the exact point.

I have never heard anyone complain the Statutes of Limitations currently in place are too long and need to be changed.   Though, I guess someone has said something to their legislator if a bill is now in the works.  Or maybe it is Governor Walker in the background, again urging "Tort Reform" and his little minions doing his bidding.

At any rate, reducing the Statute of Limitations on these types of claims will definitely not benefit the injured party.  They could be barred by waiting too long.  A lawsuit could have to be filed to preserve the Statute of Limitations on a claim that would normally settle within the 3 or 6 years Statute, thus increasing needless litigation and further clogging already congested court dockets.  Not to mention, added expense for the plaintiff's lawyer in terms of costs on the case (which, if a case settles or a plaintiff wins at trial, come out of the injured individual's money in the end).

Also, if a Uninsured or Underinsured claim has to be brought within 3 years, the same time limit as a personal injury claim against another party, that could potentially mean the underlying claim will be unable to be resolved in a prudent manner to allow an informed decision on whether or not a UM or UIM claim is actually necessary.  Again, this could lead to TWO concurrent lawsuits, in order to persevere the SOL, and my guess is the UM or UIM lawsuit would then have to be stayed in order for the personal injury lawsuit to play out and see whether a UM or UIM claim is actually needed.

Further, assuming after the first lawsuit a UM or UIM claim is needed, would the plaintiff have to provide a Vogt notice regarding the judgment rendered and allow the UM or UIM carrier to substitute funds or not, and then proceed?  I don't know.  What it probably will lead to is increased litigation over these vary issues, which seem not to be thought of or addressed at all by those proposing the bill.

I am sure more issues will arise, but these are my initial thoughts on the bill.

Moving on, I would now like to look at 2015 Senate Bill 131 - Immunity of Private Campgrounds.

The bill is straightforward: it grants ABSOLUTE IMMUNITY for a private campground, private campground owners or operators and any employees and agents of the private campground from civil liability for damage to property or for the DEATH or INJURY to an individual that is caused by or occurred during the use of the campground. The only exception is if the acts that caused injury or death were caused by a willful or wanton (intentional) act or an omission of the owner, operator, employee or agent.

This is just outrageous and absurd.  Unless someone working for the campground commits an intentional act or there is some sort of omission (failure to do something) no one owning, operating or working for the private campground can be sued for negligence of any kind.

That is immunity to not care, at all, not one bit, about the individuals who pay to use a private campground.  This is simply a bill to allow private campground owners to keep taking and making money, without any accountability or responsibility to the patrons.

Finally, very briefly, there is believed to be a bill in the works that would either eliminate double damages in dog bite cases or limit double damages to cases where there has been tow actual bites (not sure if this is specifically to the injured person during the attack or the dog has bitten 1 person or 2 people before the latest attack) and there is permanent damage to the individual.

All I can comment on it at this early stage is that it is another clear bill aimed at reducing or limiting compensation to injured individuals while alleviating responsibility on owners or dogs or dangerous animals and the insurers of those owners.

Tuesday, June 23, 2015

Medical Malpractice National Data Bank

Statistics are out, and payments issued to people injured by doctors are down for the 13th straight year, a incredible 44%.  Wisconsin had the fewest payments in the US per population:

The National Practitioner Data Bank information for 2014 came out last Friday.   The number of payments to people injured by doctor errors went down for the 13th year in a row.  Here are the numbers:

2001 - 15,898
2002 - 15,141
2003 - 15,124
2004 - 14,516
2005 - 13,613
2006 - 11,737
2007 - 11,256
2008 - 10,862
2009 - 10,783
2010 - 9,885
2011 - 9,780
2012 - 9,518
2013 - 9,447
2014 - 8,875

That represents a 44% drop in the number of payments from 2001 through 2014.

The following is the 2014 number of payments per population, ranking the states from the most number of payments to the least number of payments per population:


Rank    State    Population       Number of Payments  Payments per Population       
U.S.     319,425,019    8,875                           1:35,992
1.         NY      19,746,227      1,324                           1:14,914
2.         LA       4,649,676        246                              1:18,901
3.         PA       12,787,209      638                              1:20,043
4.         NJ        8,938,175        414                              1:21,590
5.         WV     1,850,326        83                                1:22,293
6.         KS       2,904,021        116                              1:25,035
7.         FL       19,893,297      755                              1:26,349
8.         RI        1,055,173        40                                1:26,379
9.         IN        6,596,855        245                              1:26,926
10.       NM      2,085,572        74                                1:28,183
11.       NH      1,326,813        44                                1:30,155
12.       ME      1,330,089        44                                1:30,229
13.       MA      6,745,408        220                              1:30,661         
14.       SD       853,175           26                                1:32,814
15.       OK      3,878,051        115                              1:33,722
16.       MT      1,023,579        30                                1:34,119
17.       MI       9,909,877        290                              1:34,172
18.       MD      5,976,407        163                              1:36,665
19.       CT       3,596,677        98                                1:36,701
20.       KY      4,413,457        119                              1:37,088
21.       MS      2,994,079        75                                1:39,921
22.       WY     584,153           14                                1:41,725
23.       MO      6,063,589        145                              1:41,818

24.       SC       4,832,482        112                              1:43,147
25.       AZ       6,731,484        153                              1:43,997
26.       DE       935,614           21                                1:44,553
27.       UT       2,942,902        66                                1:44,589
28.       NE       1,881,503        42                                1:44,798
29.       CA      38,802,500      861                              1:45,067
30.       GA      10,097,343      206                              1:49,016
31.       OR      3,970,239        79                                1:50,256
32.       IL        12,880,580      254                              1:50,711
33.       IA        3,107,126        54                                1:57,539
34.       WA     7,061,530        121                              1:58,360
35.       TN       6,549,352        112                              1:58,476
36.       AR      2,966,369        49                                1:60,538
37.       TX       26,956,958      407                              1:66,233
38.       OH      11,594,163      175                              1:66,252
39.       AK      736,732           11                                1:66,976
40.       ID        1,634,464        24                                1:68,103
41.       NV      2,839,099        41                                1:69,246
42.       CO      5,355,866        77                                1:69,557
43.       HI        1,419,561        20                                1:70,978
44.       VA      8,326,289        110                              1:75,694
45.       VT       626,562           8                                  1:78,320
46.       DC      658,893           7                                  1:94,128
47.       NC      9,943,964        102                              1:97,490
48.       AL       4,849,377        40                                1:121,234
49.       MN      5,457,173        39                                1:139,928
50.       ND      739,482           5                                  1:147,896
51.       WI       5,757,564        37                                1:155,610

As usual, Wisconsin had the fewest number of payments per population. 

Friday, March 27, 2015

Case Filings in 2014

No surprise here, but overall case filings are down for 2014 (for the 5th year in a row).  And no really big surprise, two of the lowest categories of tort for cases filed are products liability and medical malpractice.

Products liability had only 48 cases filed in 2014.

Medical malpractice had 84 cases filed in 2014.

Why the continued decline in tort case filings, particularly in product liability and medical malpractice?

Tort reformers will most likely say products are safer and frivolous claims are down.

As I have stated before, that simply is not true.  The legislature has pretty much made it impossible to sue for a defective product.

And medical malpractice claims are very costly to bring, almost always require a trial and an appeals process, and jurors have a hard time finding a doctor or hospital staff member negligent, even if all the evidence is to the contrary.

There is a reason you don't see ads for medical malpractice lawyers.  No one wants them, and only a handful of attorneys in the state actually take the cases.

Just like products defense lawyers, medical malpractice defense lawyers better be careful what they wish for, otherwise they are going to have to find a new practice area in order to have a job.

But, I have discussed these issues many times in my blog posts.  I suggest you read the great writing and research in the Journal Sentinel on these issues; the Watchdog series on medical malpractice in Wisconsin has been phenomenal.

Here is the link to the most recent in the series.

Wednesday, February 25, 2015

E-Filing of Lawsuits and Legal Papers

Electronic filing of lawsuits and other court documents has existed for Federal Courts for a long time.  Other states have used it for just as long, and some counties in Wisconsin have adopted it, but it is not mandatory yet, and paper copies can still be filed in the handful of Wisconsin courts that allow e-filing.  However, it may soon be mandatory in circuit courts of Wisconsin to e-file documents with the court, including the Complaint -- the action that starts a lawsuit.

A very interesting article was recently published in the New York Times regarding e-filing and how these electronic documents are being devoured by audiences all over the country and world -- audiences that ordinarily would never care about this stuff.  It is worth a read (link below) and as I will not discuss the article verbatim or in its entirety, it is worth reading to understand my points below.

Essentially, the article discusses the fact that cases that otherwise would not get much media attention, are being sensationalized well before the defendant files an answer and actual litigation takes place.  Because defendants have a specific time period to answer a complaint (20 days, or in Wisconsin in a civil court, 45 days), this gives people the chance to read accusations against a defendant and sensationalize the story.  The article mainly deals with discrimination or gender-related suits, as these Complaints are usually very specific and contain accusations that easily draw in readers and followers.  They are Complaints that are easy to sensationalize.

It is problematic.  On the one hand, the person (plaintiff) filing the suit has the upper-hand.  They get their story out first.  They are able to generate sympathy for their case, and a presumption that the defendant did something wrong.  (It should be noted that in both civil and criminal cases, the party bringing the action has the burden to prove the other party did something wrong).

On the other hand, the accusations may ruin the defendant before the defendant actually has a chance to defend him or herself, or a corporation to defend itself.  Public e-filing also essentially allows the plaintiff to try the case to the public (assuming the story gets picked up) before any litigation even begins and facts and evidence are discovered.

It can also be problematic in that, as the article points out, in a case where there should be a settlement, or at least negotiations, the defendant will refuse because the defendant wants his or her or its name cleared by a trial.  This may make the litigation process more adverse and both sides may end up spending lots of money for no reason.

As the article notes, further negative consequences for potential plaintiffs are that they do not want to sue because of the ridicule, especially in sex discrimination cases and gender-related suits, such a plaintiff may receive by the online community.  These insults and accusations will forever remain on the internet.  Think about lurid details in a divorce lawsuit.  Whether true or not, anytime a perspective employer or perspective significant other googles that person, this information will come up and may need to be explained.

Perhaps that is why I received an email from the Easter District of Wisconsin indicating that filings of civil documents can either be filed using "either a restricted to case participant" or "sealed and only available to the court designation."  Criminal filings will now be sealed documents only available to the court.  Perhaps this is an attempt by the Eastern District to keep prying eyes away from the online community -- a way to keep lawsuits not of state or national interest "private" until there are actual court hearings on matters -- which any member of the public is welcome to attend, but no one ever really does except for the really big lawsuits and prosecutions you see in the news.

(I say private because no one has much interest in the majority of cases filed with the courts, but court documents, unless ordered by the court, are available for copy and inspection by the public).

Time will tell.  Maybe it is a good thing in this digital age when people post lots of personal stuff or just stuff on the internet.  (I am no exception).

I think what the article touches upon, but does not really flush out, is the fact that when an online community finds lawsuit information out, they tend to devour it and spread it, and as they say, it "becomes viral."  Once lawsuits were a story to develop and play out before a judge and jury, if need be.  Otherwise they were more private affairs between attorneys and clients.

Essentially, e-filing can allow a lawsuit to be tried to the public before a defendant can even respond.  Kind of like Nancy Grace calling every person a criminal or a rapist or kidnapper or a murderer on her show, even before an investigation into a suspect and even before all the evidence is adduced at trial.

According to people like her, there is no "innocent until proven guilty."  Her motto, and many people who watch programming like that is "guilty, unless found innocent, but then still guilty."

Maybe increased e-filing, where no information is allowed to be protected or redacted, renders the same logic for the public, and ultimately, the possible jurors in the trial.  In the civil arena, it would be "negligent" from the minute the lawsuit is filed, including if there is a settlement, confidential or not.  That is, of course, unless there is a trial and the jury finds "not negligent."

Monday, February 23, 2015

When Bad Things Happen to Patients ... And Discouraging Lawsuits

It has been a while since my last post, so, hello again reader (or hopefully and optimistically, readers).

I would like to continue on with my posts regarding medical malpractice lawsuits.  In the most recent article I read, the publisher again contradicts itself about "exploding" medical malpractice lawsuits.  However, the article then says "fewer than 10% of those patients and families will actually file a malpractice lawsuit."  The reason:  the author hypothesizes that it is the patient's or families perception of the doctor or staff.  Essentially, if they like the doctor or staff, or have been with a particular doctor for a number of years, they will not sue no matter how negligent the doctor was or how injured the person is.  Interesting theory.  Maybe has some weight.

Though, the article then gets into, as I have touched upon before, the real reason, I believe, for the lack of lawsuits against doctors.  Simply, unless the injury is significant, it is cost prohibitive to bring a lawsuit.  As a defense attorney notes in the article, "if the case is meritorious but the recovery is likely to be small, they [injured party] don't sue because they can't find a lawyer willing to take the case."

Exactly.  Injured people have essentially been legislated out of otherwise viable claims.  Politicians case be smart, and those drafting their agendas as well.  They have not "closed" the doors to justice - an injured person's day in court.  Instead, they make it cost an incredible sum for an injured person to pursue a case, which effects a lawyer's ability to take the case, thus ensuring no lawsuit.  It is a prohibition on access to justice -- just not an overt one.

These articles from the Milwaukee Journal Sentinel are enlightening in regards to the amount of money the Wisconsin Injured Patients and Families Fund has to defend lawsuits, and to the problems faced by injured parties, along with a complete lack of access to the courts, in Wisconsin.

Or this article that show Governor Walker's attempt to essentially shape the Wisconsin Supreme Court to do his biding.

And, this is not just an access to justice for medical malpractice problem.  Legislation is coming from all angles to block as much access as possible for injured parties.  Binding, forced arbitration, more caps on damages, re-working Wisconsin's Worker's Compensation system which has been in place since the early 1900's and both parties agree does not need to be changed.

So, the question then is, as more and more laws to help injured people get changed to protect doctors, corporations, cities, etc., and not the injured person, when bad things happen to people, how is anyone going to help them?