Thursday, June 14, 2012

Tort Reform and Truth...

It has been a rallying cry for years and years and years now (always from republican legislators and groups like ALEC)... We Need Tort Reform! Personal injury lawyers are what is wrong with society. Only with caps on lawsuits against doctors can medicine work.  Only with laws prohibiting consumers from suing corrupt lenders and car dealers can our economy grow. Only with laws severely limiting lawsuits against corporations for wrongdoing or by those who are injured on the job can Wisconsin (ahem... Walker) and our economy grow.

As a personal injury lawyer, I obviously hear this often -- along with the usual "oh, so you are an ambulance chaser."  And as a personal injury lawyer, I am in a prime position to fight back against these lies and negative stereotypes.

But, the fight is hard and an uphill battle.  Corporations like ALEC have for numerous years pushed the anti-personal injury lawyer campaign.  And with the amounts of money ALEC, and corporations like it, amass, the have a huge head start in their campaign.  And it has been effective.  The second part of this battle is that there are personal injury lawyers who advertise about making lots of money when someone is injured.  These two factors work against other personal injury lawyers.  Both make me angry and sad.

The public has been brainwashed into thinking that all personal injury lawyers are greedy and don't care about their clients.  The public has been brainwashed into thinking insurance costs more because of personal injury lawyers.  The public has been brainwashed into thinking that the reason our economy sucks is because of personal injury lawyers.

Quite frankly, I've had enough.  Personal injury lawyers are the butt of jokes and scapegoats.  Our group is easy to pick on by ALEC and other groups because they cite to "frivolous" cases.  Although, they don't really cite, they distort the case or cases and they distort them for so long that soon the public believes the case happened as ALEC said it did.  In other words, people begin to believe the "truth", or what corporations and republicans want you to believe the truth is.

An easy example is the McDonald's case.  Ask someone today, and he or she will tell you that a lady spilled a coffee on herself, was not really injured, and got 5 million dollars.  What people forget is how badly the woman was injured from hot coffee and the degree of burns she received.  What people forget is that McDonald's knew that serving their coffee at the temperature they did would burn the flesh off of people.  What people forget is how ruthlessly McDonald's handled this case and tried to deal with the plaintiff.  If you knew the whole story, you would understand how non-frivolous this case was.  Oh, and the plaintiff did not get anything close to 5 million dollars.

But look at this email I received about medical malpractice cases in Wisconsin:

"People injured by medical negligence in Wisconsin have a difficult time recovering compensation for their injuries.  Data recently published show how difficult it has become.

The National Practitioner Data Bank recently tracked the number of payments made per year as a result of doctor negligence in Wisconsin.  Here are the numbers:

2001   115
2002   103
2003   120
2004     85
2005     89
2006     81
2007     77
2008     71
2009     75
2010     38
2011     54

The number of payments in 2011 was a 53% reduction from the number of payments in 2001.

The number of payments in 2010 was a 68% reduction from the number of payments in 2003.

 What do we compare these numbers to?  The authors of an article published in Health Affairs in April 2011 found that there are 1.5 million injuries caused each year as a result of medical errors.  Based on Wisconsin’s population, the state represents 1.9 percent of that amount, which equates to 28,500 people injured or killed each year by medical negligence.  Compare that number to the number of payments actually made and it becomes obvious how difficult it is to recover compensation for injuries caused by medical negligence.

 Confirmatory data come from the Wisconsin Medical Mediation Panels filings.  A person injured by medical negligence must first go through a medical mediation session before pursuing a case in court.  The updated numbers show the following numbers of requests:

1987     410
1988    353
1989    339
1990    348
1991    338
1992    313
1993    276
1994    292
1995    324
1996    243
1997    240
1998    305
1999    309
2000    280
2001    249
2002    264
2003    247
2004    240
2005    223
2006    235
2007    183
2008    147
2009    181
2010    169
2011    139
Do you notice a trend?  The last five years have been, by far, the lowest number of requests for mediation since the system began in 1987.

Wisconsin citizens must be told about the success the medical liability insurance companies have had in discouraging medical negligence cases from being filed.  Only when jurors understand the truth will injured people have a fighting chance of winning their cases in court."

So what does this data show?  It shows that ALEC and similar groups are winning at keeping legitimate cases out of Wisconsin courts.  By pushing the tort reform agenda, increasing costs for access to patient medical records, increasing costs for mediation, requiring a mediation, increasing costs for experts and deposition testimony and constantly lowering damage caps in medical malpractice actions, legitimate claims are pushed out of the courts.

That means, unless you have catastrophic injuries, it is going to be hard to find a lawyer that can help you.  As a personal injury lawyer, this is incredibly disheartening.  I am a personal injury lawyer because I want to help those who are injured through no fault of their own.  These are people who are hit by a drunk driver, operated on by an incompetent doctor, or even a good doctor that makes a terrible mistake during surgery.  These are people who are riding their bikes on a street and an angry or inattentive motorist strikes them from behind, causing injury.

What is most frustrating is that voters, and even citizens that don't vote, continue to buy in to propaganda against personal injury lawyers and laws that were designed and/or enacted to protect individuals and their legal rights.  Example: they vote for Walker because he promises jobs. 

What those voters don't realize or don't care about is that the creation of jobs comes at every citizens expense.  Laws protecting unions, consumer rights, and the rights you have do something when you are injured by a product, another person, medical malpractice and defective streets and roads have been repealed and/or severely limited.  These laws protect only corporations and the rich.  They do nothing but hamper or prohibit a plaintiff's lawyer from helping out someone who was injured or screwed over by a landlord or car dealer.  (These same people also don't realize there are other ways to create jobs without severely repealing or tightening laws intended to help citizens.)

So, what to do?  Rebel.  Speak up.  Act up.  Stop voting for corporations over people.  Start voting for politicians that actually care about individuals rights and protecting individuals from greedy corporations and predatory corporations and individuals.  Educate others on what really is going on.  Educate yourself on the fact that lawsuits don't increase your insurance rates, they don't increase the cost of medical care and treatment, and educate yourself on the fact that personal injury lawyers exist to help.  

At our core, at my core, is the desire to help those less fortunate, those that have been injured and need help seeking recourse.  Every person, every human being, should want to help every other person so that we can survive and prosper as a state, nation and world.  While recent changes to the law extremely hinder my ability to help, that doesn't mean I will stop fighting.  But I need help from others so that we can change the current tort reform climate and be able to fight back and get those with legitimate claims in to court to seek the justice they so desperately need and deserve.

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