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Bret Hanna
Bret Hanna
Attorney • 435-649-2525

Tired Retread Of Tort “Reform” Arguments

6 comments

The Oklahoma legislature is considering tort "reform" legislation like that which has and continues to be pushed around the country. As often is the case, local newspapers will editorialize on various issues being considered by their respective state legislatures. The Oklahoman is no different.

Unfortunately, the position taken by the editorialist, not identified, on the tort reform that is currently winding its way through Oklahoma’s legislature is just plain wrong and misleading. You can find the text of the editorial here. It appears under the masthead that reads: NewsOK – Powered By The Oklahoman * The State’s Most Trusted News. If that is the case, the trust of the paper’s readers is misplaced.

One focus of the current debate in Oklahoma centers around a proposed $250,000 cap on punitive damages. The editorial notes that and then offers this shockingly insensitive statement: "Once again the trial lawyers are playing on emotions with sad stories of victims and the greed of (fill in the blank) companies named as defendants." Wow. Those "victims" are real people who have been harmed by the actions or products of corporate defendants.

These victims could be you, your family member, your friend, your co-worker. Why shouldn’t victims be able to seek full recovery for their damages? And why shouldn’t the companies that engage in dangerous practices or those that place dangerous products into the stream of commerce be held accountable when they injure or kill people? Who is better able to bear the cost of the harm? The individual who can’t work because of their injuries, or the well insured conglomerate that makes millions from plying their trade?

Then the editorial notes that if greed is the issue, why don’t trial lawyers agree to a cap on theirs fees in order to put more money in the pockets of their clients? This highlights a lack of understanding of how the tort system works. The average person cannot afford to pay a lawyer by the hour to represent them. Corporations can afford representation, but most people cannot. That means that access to justice for the vast majority of people hinges on the willingness of an attorney to assume the risk of the case with the client. The attorney will have to bankroll the costs of the case and wait for the return of the costs and a fee until the end of a case, and then only if they are successful. The end of a case that was most likely defended with scorched earth tactics paid out of deep corporate pockets with no analysis of the merits in mind; the only goal is to keep money in the corporate coffers earning investment returns as long as possible. Under the circumstances, the contingency fee earned by those attorneys seeking justice is well earned and the only hope for all but the wealthiest of victims.

The mechanics of the contingency fee also debunks that most infamous of tort reform myths – the frivolous lawsuit. What attorney in their right mind is going to pour years of their time and tens of thousands of their own dollars into a frivolous case. It defies logic and it makes no business sense. It just doesn’t happen that often.

As if that is not enough, the editorial throws one garbage argument after another. The draconian tort reform put in place by Texas voters is extolled as "fixing" the problem of physician recruitment, "a huge problem in rural areas." Presumably this a reference to the so-called shortage of physicians who cannot afford malpractice insurance because lawsuits have pushed premiums too high for certain specialties or certain geographic areas. Study after study in states across the board with caps, including Utah, have shown that caps do nothing to reduce premiums. Texas is no different and Oklahoma won’t be either if the caps legislation passes.

6 Comments

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  1. Larry says:
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    “Study after study in states across the board with caps, including Utah, have shown that caps do nothing to reduce premiums.”

    Bald-faced lie. Utter, complete BS. Every physician in the US knows that malpractice premium rates are lower in states with tort reform in place. For EVERY specialty.

    Give us the reference for such a study.

  2. Bret Hanna says:
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    Larry:

    Thank you for your comment but with all due respect, it is you that have fallen victim to the bald face lies perpetuated by medical insurance companies and other tort “reformers.” You asked for statistics on the relationship between damages caps and premiums, so here it is (one example of many):

    http://www.justice.org/clips/Insurance_Company_Handout.pdf

    Are you a physician or other member of the medical of the medical community? If so, the referenced report should be of concern to you.

  3. Larry says:
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    Oh Bret, do you think we are all really that stupid? Your “report”, published by the “AMERICAN ASSOCIATION FOR JUSTICE ON MEDICAL NEGLIGENCE” is nothing more than the equivalent of industry-funded propaganda, and of course you know that.

    Furthermore, whether the malpractice insurance, or P&C,or health insurance companies, made more money or not, you use a typical tactic of a mediocre lawyer – to change the subject of the discussion so as to attempt to inflame the listener to forget what it was they were talking about.

    I don’t forget.

    The tort liability system in the US is a travesty. The legal system in the US is a travesty. The ambulance-chasing lawyers in the US are a travesty. And it is they, and they alone, which produce this problem; without them there would be no NEED for malpractice liability insurers to make so much money, because the premiums would be lower.

    You blame someone else (insurance companies), for taking advantage of the unbelievably evil system which you and your ambulance-chasing friends created, and then try to make us think it is THEIR fault.

    Think again.

    The days of asinine jury verdicts, and multi-million-dollar payouts to attorneys for playing on the emotions of ignorant juries, are coming to a close.

    And it won’t be too soon.

  4. Mark B. says:
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    “Why shouldn’t victims be able to seek full recovery for their damages?” As it is their constitutional right, yes, victims should seek the legal system to remedy their issue if there is merit. But here are the facts…in 2009, 64 percent of all medical liability cases were dropped or dismissed due to a lack of merit. Further, only one percent of those cases resulted in a verdict for the plaintiff. A meritorious case deserves full attention of the court system, but it’s necessary to address the issue of frivilous lawsuits. http://www.equotemd.com

  5. Bret Hanna says:
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    Mark:

    Where do you get your statistics? Your numbers on cases with merit or lack thereof seem to be pulled from thin air. Is that the case? Can you back the numbers up with credible sources? If so, I’d love to review them.

  6. Bret Hanna says:
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    Larry:

    You seem to speak from a place of anger rather than rationale discourse on an important topic to us all. If you take the time to thoroughly read the article cited, you will find all of the source information set forth at the end. If you review that and still don’t find the information credible, I guess we can debate that issue.