This day marks the 50th anniversary of Dr. Martin Luther King’s “I Have a Dream” speech and the civil rights march on Washington that forever changed America. The speech challenged the status quo; it demanded that all people, regardless of race, creed, color, religion or ethnic origin be treated equally. Dr. King’s speech didn’t say so, but he was talking about economic equality, as well. 50 years later, as an African American President of the United States takes the podium in the same spot where Dr. King delivered his epic speech, much has been accomplished. Sadly, however, there is still much to be done.
I have represented and/or championed the rights of the injured and disabled for all of my professional life. In the “good old days” (20-30 years ago), I could do so in a system that was more fair and balanced than it is today. America is a country with three important branches of government, Executive, Legislative, and Judicial. It is a country with a Constitution that seeks to promote liberty and justice for all. To do so effectively, the three powers, according to the Constitution, must be separate and act independently of each other. In other words, the Constitution mandates that government responsibility be divided into these three distinct branches and limits any one branch from engaging in the core functions of another. The intent, obviously, is to prevent a concentration of power to any one branch and to provide for a system of checks and balances. This separation of powers has served us well and has lasted well into the late 20th Century.
Unfortunately, beginning in the late 20th Century, the legislative branch began to decide that the judicial branch needs its assistance. Legislators (predominantly Republican, their campaigns heavily bankrolled by corporate interests) began to assert “corporate rights” over “individual rights”. This has taken many forms. Corporations were given tax breaks that individuals don’t receive. Corporations were excused from misconduct by poorly conceived legislation. Polluters, for instance, go unpunished. Crimes (like mortgage fraud) are committed by corporations, yet CEO’s go un-punished. These corporate types almost brought down our entire financial system but not a single CEO was prosecuted. And insurance companies, making billions and billions in profit, cry “lawsuit abuse”, line the pockets of legislators, and get “tort reform” in return.
What is “tort reform”, you ask? It is the legislative insertion of restrictions on litigation that prevents a judge or jury from being solely responsible for addressing the harm caused by one citizen against another or a corporation against a citizen. It is cleverly disguised by those who proffer it. Using terms like “frivolous lawsuit”, “run away juries”, “lawsuit abuse” or “jackpot justice”, these corporately financed “tort reformers” seek to limit the amounts of money a citizen can receive in damages from a judge or jury.
These “tort reformers” suggest that the system is swimming in a sea of “frivolous lawsuits” and needs, therefore, to cap the damages that citizens can recover. This is your prototypical red herring. “Frivolous” is defined as something that has “no serious purpose or value” which, of course, prompts this question: Why would something that is frivolous, having no serious value, require a cap on damages? The answer is, of course, that it does not. Tort reformers simply seek to take further advantage of the powerless.
But, paying small sums of money on smaller cases and large sums of money on large, serious, ones is not good enough for the corporate bottom line. Doing what a responsible corporate citizen should do (taking responsibility for one’s actions and fairly compensating those who one causes serious harm to) isn’t good for business. And, these days, if it isn’t good for business, it isn’t acceptable to conservative politicians. Who cares how the family of a deceased or paralyzed victim will support itself? Business is king in America. Conservative politicians pass tort reform and limit a person’s ability to support his/her family. At the same time, these same politicians seek to limit public assistance (entitlements) and overturn Obama Care. If laws prevent full compensation from the person or corporation responsible for the harm and additional laws prevent the receipt of benefits from the government, how are the victim and his family supposed to support themselves? The system creates another endless cycle of poverty, an economic inequality based upon disability. This doesn’t apply only to victims; it applies to all of us, because these seriously injured or disabled victims become a drain on our economic system. It also runs contrary to our Judeo-Christian values, doesn’t it? This is exactly the kind of inequality that Dr. King railed against 50 years ago today.
I have a dream today. I dream that all injured citizens will have unfettered access to a civil justice system that is apolitical. I dream that judges and juries are solely responsible, after a complete airing of facts and laws, for providing compensation to seriously injured victims. I dream that citizens who seek redress in the courts will no longer have to have justice determined by the political affiliations of the judges in charge. I dream that judges are elected or appointed by citizens, not politicians. I dream that all courts determine that all legislative attempts to restrict damages in civil cases are unconstitutional under the 7th Amendment of the Constitution. I dream that all injury victims will be judged by the severity of their injuries and the defendant’s behavior, not by political sway. I dream that justice shall be equal, regardless of whether you reside in a “blue” state or a “red” state or whether you live in the north, south east or west. I have a dream today, and only when all citizens rise up against injustice, any kind of injustice, will it ever come true.
Mark Bello is a Justice Pac member of the American Association for Justice, Sustaining and Justice Pac member of the Michigan Association for Justice, Member of Public Justice, Public Citizen, the American Bar Association, the State Bar of Michigan and the Injury Board.
@thumbnail.jpg "Mark M. Bello")
Experienced attorney, lawsuit funding expert, certified civil mediator, and award-winning author of the Zachary Blake Legal Thriller Series. The series features super-trial lawyer Zachary Blake handling "ripped from the headlines" legal and political issues of the day. The series currently consists of Betrayal of Faith, Betrayal of Justice, Betrayal in Blue, Betrayal in Black, and Betrayal High, with a sixth Zachary Blake novel due out later this year. To learn more about these topical social justice legal thrillers. please visit markmbello.com. Mark is a member of the State Bar of Michigan, a sustaining member of the Michigan Association for Justice, and a member of the American Association for Justice.
50 Comments
jc
I have a dream too! I have a dream that doctors will be allowed to countersue plaintiff attorneys who file frivolous lawsuits! I have a dream that doctors be given the right to seek delay damages from plaintiff attorneys who needlessly delay malpractice legal proceedings. I have a dream that only well qualified medical malpractice attorneys with post graduate training be allowed to file medical malpractice suits, instead of allowing any bum lawyer who passed the bar to file these suits. I have a dream that someday, specialized medical courts will hear these medical malpractice cases within 6 months, so that both the doctor and plaintiff no longer have to wait years for the civil courts to make simple decisions. I have a dream that plaintiff attorney contingency fees and court costs will be capped at 35% so that the suffering patient will get the majority
Of any award, instead of the bulk of the award (56%) going to the greedy plaintiff's attorney. I have a dream that "pain & suffering" damages, which are currently capped in 30 states, will be capped in all states, protecting both insurance rates, and doctors assets against run away ridiculous jury verdicts. I have a dream that state legislators will pass laws preventing "loss of a chance" as a theory in malpractice law (this theory was concocted by state Supreme Courts to screw doctors). I have a dream . . . . . .
jc
So lets talk about frivolous lawsuits, specifically medical malpractice lawsuits. Brenda Scheckelhoff came into a local E.R. With severe headaches. She was admitted to the hospital, seen by a neurologist, neurosurgeon, and the appropriate imaging was read by a neuroradiologist. Everything came back negative, so she was sent to University of Michigan where she had a brain biopsy and died a week later. Rumor has it she died of vasculitis, a difficult condition to treat. Yet her family sued. When they could not find an expert to back up their allegations, the suit was dropped. This is the classic case of a frivolous medical malpractice suit filed by a bozo inexperienced plaintiff attorney. For the rest of their careers, the neurologist, neurosurgeon, and neuroradiologist will have to self report this case whenever they apply for a state license, or medical malpractice insurance or for medical staff privileges! We could clean this abuse up by allowing docs to countersue plaintiff attorneys, holding them accountable for their actions.
jessical
JC: Where does this tirade come from? Mr. Bello's post suggests that there should be no restrictions on the right to collect damages when an injured person wins his or her case. Tort reform almost always places caps on the damages sought in SERIOUS cases. Your response addresses a completely different issue, those cases that don't succeed or should not have been filed. That subject is COMPLETELY off topic. So, I ask you this question: If a doctor, you, for instance, makes a serious mistake on the operating table and maims or kills someone, should that doctor be held fully accountable for his mistake or should the legislature cap the recovery of the victim? Malpractice is only one area where tort reform has limited access to citizen justice. And legislating tort reform is only one method in many in which conservative organizations and fund raisers seek to limit victim recoveries and/or prevent rights to recoveries. The system already provides sanctions against lawyers and clients who bring lawsuits that get summarily dismissed. But the point of THIS post is that it is wrong to limit the recoveries or prevent recoveries against those who are PROVEN to be wrong in court. Your anger and personal experiences clearly cloud your judgment
Christy
Dr. Cox,
I think you missed the point of Mr. Bello’s post, but if memory serves me correctly that is something you do often. Nowhere does Mr. Bello mention supporting frivolous lawsuits; no where does he mention that doctors, or anyone else for that matter, can’t countersue. If you would reread the post, you will see that he is talking about limiting access to the courts for innocent victims. Tort reform has nothing to do with frivolous cases, but it has everything to do with stripping away the rights of those seriously injured due to the negligence of others.
Dr. Cox, there will always be frivolous lawsuits, but our justice system has mechanisms in place to take care of them. Where are the mechanisms to take care of innocent victims? Tort reform takes them away; tort reform makes the taxpayers pay.
I have a dream that the American people will wake up before it is too late and realize the tort reform is not a good thing for anyone but big business. I have a dream that you will really read posts like Mr. Bello’s before you start mouthing off. If you listen to your patients as loosely as you read, I fear for your patients.
Mark Bello
Dr Cox: To quote your hero, Ronald Reagan, "there you go again..." The caps you dream of do nothing to solve the problem you always bitch about. You are a hypocrite. On the one hand, you scream about doctors being able to get damages if they are wrongfully sued; on the other hand, you argue that a plaintiff's damages should be capped when he/she proves that a doctor ruined his/her family's lives. You never fail to talk out of both sides of your mouth. You are always a truth twister: Your spout inaccurate statistics and fail, ALWAYS, to report the amount of cases that are successfully SETTLED without a trial. And there isn't a state in the union that permits an attorney to receive 56% of case recoveries in fees. That statistic is false and you know it to be false. Because injured clients often lack the means to pay for the cost of litigation, attorneys often advance those costs for them. Doctors and insurance companies don't seem to have that problem. Doctors and insurance companies retain the best and brightest to represent them and spend a fortune proffering frivolous defenses that delay and prolong proceedings, filing motion after motion and discovery request after discovery request. As a result, the actual cost of protecting the plaintiff from this assault can become expensive. This litigious defense behavior is a root cause of the expense of litigation, not a solution. The repayment of these costs, advanced by the attorney on the client's behalf, may, in some cases, result in a recovery less than 50% for the client. But that is the price of a frivolous DEFENSE. You can yell; you can scream, but you will still be a liar. Only the truth will set you free.
Philip
Well Said! This world would be no where without that man
jc
"Pain & suffering" damages are subjective damages. Plaintiff attorneys want them to increase there fees and also to increase the pressure on defendant docs to settle frivolous cases that plaintiff attorneys can't prove in court. I am against "pain and suffering" damages for those reasons. In the vast majority of cases settled out of court, the case is dropped with no payment to the plaintiff---because the vast majority of med mal cases are frivolous and filed by incompetent plaintiff attorneys!
jc
So tell me guys, what kind of bozo plaintiff's attorney would file a medical malpractice case (like Brenda Scheckelhoff ) without having an expert witness on board? It appears that you guys support that practice.
jc
So Mark Bello calls me a liar. I take that as a compliment coming from a plaintiff's lawyer like him. Medical malpractice plaintiff attorneys are a profession based on fraud and legalized extortion. It is fraud for plaintiff attorneys to advertise their services on T.V. When they know they lose 85% of their cases at trial and half the patients that win get nothing because the plaintiff attorney hogs all the award. It is legal extortion to file a frivolous med mal case and try and get the med mal insurer to settle the case to avoid expensive litigation. Lets get rid of these bozos and have medical courts!
jc
Jessica's--I will directly answer your question. I believe that if a doctor makes a serious mistake the patient should be entitled to medical damages, economic damages but "pain and suffering damages should be capped because they are subjective damages (what does $150k of pain and suffering damages look like compared to $50k of pain and suffering damages?). There are lots of limits on damage awards I the American legal system. Injured at Ford--gotta go to Workers Comp for compensation. Make a bad stock investment--gotta go to arbitration. Government makes these legal limitations to protect jobs at Ford and to allow Wall Street to raise money for expanding companies. So why not protect doctors from unjust and excessive "pain and suffering" awards?
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