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Will foes of medical malpractice damage caps prevail in MO?

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On behalf of of Kahn Gordon Timko & Rodriques P.C. posted in Medical Malpractice on Thursday, February 7th, 2013

The advocates of so-called tort reform are back in Missouri. Although the cap on damages in medical malpractice cases was ruled to be unconstitutional last year, Missouri Republicans have vowed to get the limit restored. Doing so, they say, will control health care costs and encourage doctors to remain in Missouri.

When the tort reform bill was enacted in 2005, it included a $350,000 cap on non-economic damages such as pain and suffering in medical malpractice cases. Before 2005, Missouri still had a cap, but the amount was higher and adjustable for inflation.

The Missouri state constitution includes a Bill of Rights that states, “”the right of a trial by jury as heretofore enjoyed shall remain inviolate.” The court decided that any limit on damages that restricts a jury violates the constitutional right to a trial by jury. The advocates of tort reform say they will try to enact legislation to eliminate this common law right to trial by jury for healthcare malpractice and replace it with a statutory right to sue.

Opponents of the tort reformers say that the right to a jury trial is central to basic liberties and rights and must be protected. One Missouri lawyer has said that advocates of a damages cap are trying to enact immunity from negligence actions for a single group – health care providers — and let politicians decide what appropriate damages are.

This may be an uphill battle for those arguing that there should be no caps on damages. Republicans in the Missouri House have a super-majority. Moreover, neighboring Kansas just upheld its own cap — $250,000 – on non-economic damages. However, actually implementing revised damages caps could take some time. To pass an amendment to change the constitutional right to trial by jury would have to be approved by the voters,, and any legislation passed would have to be signed by the governor.

New York is in the minority of states with no caps on non-economic damages. However, that is not because proponents of tort reform in Albany haven’t tried. Legislation has been introduced in every recent session, and depending on the future composition of the legislature, it may be just a matter of time.

Source: CBS St. Louis, “MO GOP To Bring Back Tort Reform In 2013,” Jan. 5, 2013.

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Lies of tort reformers and personal injury opponents, Part 2

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On behalf of of Kahn Gordon Timko & Rodriques P.C. posted in Personal Injury on Sunday, January 6th, 2013

Our our previous blog post, we reviewed two of the myths spread by advocates of tort reform who are seeking to limit access to the civil justice system.  Read on for some more of the lies told be big corporations and the groups that work for them seeking to limit personal injury and medical malpractice lawsuits.

Lie #3: Punitive damage awards are bad for business and destroy corporations.

The truth: It turns out that there are very few punitive damage awards – in only five percent of medical malpractice and personal injury trials where plaintiffs won. When punitive damages are awarded, they are usually only twice the compensatory damages, not many times the actual damages, as the tort reformers would have you believe. The median punitive damage award only $55,000, according to the Justice Department. This is hardly an amount that would destroy a major corporation.

Lie #4: Doctors are being driven out of business by medical malpractice lawsuits.

The truth: The number of malpractice payments has dropped during the last decade. The number of medical malpractice cases has dropped 35 percent since 2001 and now represents only two percent of all civil cases and less than eight percent of all tort cases.

Lie #5: Medical malpractice cases are almost always frivolous.

The truth: Twenty-two percent of medical malpractice cases arise because a patient died. The Harvard School of Public Health studied the issue and found that most negligence claims had merit and that cases without merit seldom received any money. It concluded that “portraits of a malpractice system that is stricken with frivolous litigation are overblown.”

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Lies of tort reformers and personal injury opponents, Part 1

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On behalf of of Kahn Gordon Timko & Rodriques P.C. posted in Personal Injury on Friday, January 4th, 2013

So-called tort reformers have undertaken a campaign of misinformation in their efforts to restrict access to the civil justice system. Unfortunately, their efforts have been successful in many areas of the United States resulting in caps on awards and settlements, changes in deadlines to file personal injury lawsuits, and elimination of certain types of damages.

Although this has not happened in New York, tort reformers are working hard to limit the people’s right to obtain justice after they were hurt because of another’s negligence. What follows is a list of the most frequently-told lies about the state of the civil justice system – lies that New Yorkers should look out for when deciding whether tort reform will really help them.

Lie #1: There is a growing number of personal injury lawsuits in the United States that is clogging up the justice system.

The truth: The number of personal injury lawsuits or tort cases has been declining for decades. The National Center for State Courts (NCSC) reports that tort cases declined by 25 percent between 1999 and 2008. And tort cases make up only five percent of civil cases, so the claim that such cases burden our court system doesn’t add up.

Lie #2: Winning a lawsuit is akin to winning the lottery, with many plaintiffs receiving overly generous awards.

The truth: Most personal injury awards are modest, with the average award amount being around $31,000. And, despite the assertions of tort reformers, award amounts are actually going down, not up, according to the Department of Justice.

Read about other myths about the need for tort reform in oiur next blog post.

Source: Take Justice Back, Facts v. Fiction.

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Tort reform: It doesn’t cure medical malpractice

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On behalf of of Kahn Gordon Timko & Rodriques P.C. posted in Medical Malpractice on Thursday, December 27th, 2012

Did you know that more than 98,000 people die every year as a result of preventable medical mistakes? Such medical malpractice is the sixth most common cause of death in the United States.

Currently, residents of New York are able to seek justice after injuries or fatalities caused by medical negligence. Unfortunately, front groups for major corporations are seeking to change the civil justice system in ways that limit accountability when patients are harmed or killed because of medical negligence. And these front groups have already succeeded in many other states.

Those who would take this right away like to call their efforts “tort reform.” However, the only beneficiaries of tort reform are the major corporations who own hospitals, pharmaceutical companies, medical device manufacturers and insurance companies.

In addition to their efforts at the state level, the tort reformers are fighting at the federal level. In March of 2012, the House of Representatives passed a health care act that, if enacted, would remove any incentives for patient safety, leave patients at risk, and take away the legal rights of patients injured by medical malpractice. It would impose uniform caps on damages without regard to the severity of the injury or the negligence that caused it.

The bill, “Help Efficient, Accessible, Low Cost, Timely, Health Care (HEALTH) Act of 2011” (H.R. 5) on March 22, would also limit damages for injuries caused by defective drugs and medical devices as well as for abuse suffered in nursing homes. Enactment of this bill would be a major blow to patients and their families and to patient safety advocates in New York and throughout the United States.

Source: Take Justice Back, “Medical Errors.”

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Critiques of personal injury claims shown to be flawed

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On behalf of of Kahn Gordon Timko & Rodriques P.C. posted in Personal Injury on Thursday, December 20th, 2012

The American Tort Reform Association (ATRA) is a key player in the effort to weaken the civil justice system. As part of its campaign, it issues an annual report titled, “Judicial Hellholes.” However, this report has been shown to be just one more effort by a corporate-funded front group seeking to avoid liability and personal injury lawsuits.

Furthermore, it has been shown to contain numerous factual errors and to lack any consistent methodology. The American Association for Justice has shown that the report is essentially propaganda for its campaign to limit the access of ordinary people to the courts.

Other critics of the “Judicial Hellholes” report include The New York Times, which in 2007 described the report as having no apparent methodology and containing groundless arguments. The West Virginia Law Review noted that the goal of the report was to motivate state legislatures to make law that will favor corporate defendants and their insurers.

The AAJ has reported numerous flaws in past Judicial Hellholes reports. For example, the 2010 report described a Humboldt County, California jury verdict as “jaw dropping” without going on to explain that the $677 million verdict was reduced to $67 million in a settlement only two months later.

Other problems with the Judicial Hellholes reports include factual errors such as the state where a personal injury lawsuit was filed, how many verdicts favored plaintiffs, or how many lawsuits were filed. Other weaknesses include conclusions that don’t make sense, such as the assertion that the state of West Virginia was the worst so-called judicial hellhole even after it adopted caps on medical malpractice damages, eliminated third party bad faith and significant changes to the state’s workers’ compensation laws.

Source: Take Justice Back, “Don’t Be Duped by ATRA’s “Hellholes” Report,”by Michelle Kimmel , Dec, 11, 2012.

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Reformers try to limit personal injury claims for tobacco

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On behalf of of Kahn Gordon Timko & Rodriques P.C. posted in Personal Injury on Thursday, December 13th, 2012

In a previous blog post, we discussed how major corporations have developed and funded separate organizations that purport to provide education on the need for tort reform. In reality, such organizations exist solely to limit access to the civil justice system and shield corporations from personal injury lawsuits over harm caused by their products.

An interesting example of this is the tobacco industry and how for years it hid its knowledge of the deaths and serious illnesses caused by its products. However, in the 1990s, plaintiffs’ attorneys were able to hold Big Tobacco responsible for the cost of tobacco-related illnesses. Although many individuals and families finally received some measure of justice, the tobacco companies used this as a wake-up call and began fighting to limit the ability of state attorneys general to join forces with plaintiffs in tobacco (or other) cases.

Large tort cases, such as tobacco cases, are often too complex and expensive for state-funded legal offices to handle. The trend has been for state attorneys general to use outside counsel. The benefit of this strategy is significant: State taxpayers do not have to front the costs, because outside counsel does this as part of its contingency fee arrangement. States also receive the benefit that experienced trial lawyers with significant resources can offer.

The use of outside counsel has become a target for the so-called tort reformers; they do not want states to develop relationships with trial lawyers that could ultimately harm major corporations. The American Legislative Exchange Council (ALEC), one of the shadow groups advocating on behalf of large corporations, has been pushing states to adopt legislation that limits the ability of states to hire outside counsel; this type of legislation has become law in at least 10 states. Other groups, including the Institute for Legal Reform (ILR) support similar initiatives.

Although the names of the groups and their specific targets differ, the goal is the same: To limit the ability of the states and federal government to sue corporations on behalf of citizens. Taking away the ability to hire outside counsel is one way tort reformers can accomplish this goal. If they succeed, the result will be growing numbers of injuries and deaths caused by corporations who can sell dangerous products with impunity.

Source: Trial, “Reclaiming Justice: Battling Tort ‘Reform’,” Dec., 2012.

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Tort reformers seek to limit personal injury claims for asbestos

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On behalf of of Kahn Gordon Timko & Rodriques P.C. posted in Personal Injury on Tuesday, December 11th, 2012

In previous posts, we discussed how the advocates of tort reform mounted a stealth campaign to restrict access to the civil justice system by using a variety of front organizations. In this post, we will discuss how these groups tried to influence asbestos legislation that would restrict the ability to file personal injury claims for asbestos-related illnesses.

The tort reform groups pushed for bills in state and federal legislatures that would make it more difficult for people with asbestos-related diseases to obtain justice and compensation. They also organized funded numerous informational campaigns that appeared on the surface to represent grass roots sentiment.

The effort began in 2005 with law review articles, academic papers and RAND Civil Justice Institute reports. The thrust of many of the writings was that the asbestos claims system was experiencing rampant fraud. This was despite a Government Accountability Office (GAO) study that found that there was hardly any incidence of fraud in the asbestos bankruptcy trusts.

The result of the campaign to limit asbestos claims resulted in legislation such as the Furthering Asbestos Claim Transparency Act of 2012. This act was developed after so-called educational briefings held for representatives and their staffs by the Civil Justice Caucus Academy (CJCA) for an organization funded by the Koch brothers, conservative foundations, and a variety of industry groups. In addition to holding symposia, the CJCA hosted an invitation-only gala for legislative staff and a three-day visit to Colonial Williamsburg. Events such as these are free for attendees.

Look for our next post, which will outline the role of tort reform groups to help the tobacco industry.

Source: Trial, “Reclaiming Justice: Battling Tort ‘Reform’,” December 2012.

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Corporations embrace tort reform at the expense of consumers, Part 2

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On behalf of of Kahn Gordon Timko & Rodriques P.C. posted in Personal Injury on Thursday, December 6th, 2012

In our last post we discussed how major corporations try to hide their plan to limit access to the civil justice system and to damage awards from personal injury lawsuits by calling the effort tort reform. Some of the organizations that they use to disguise their campaigns are described below.

Civil Justice Reform Group

This organization is central to the campaign to limit damages and changes laws regulating lawsuits. Known as a secretive group, the CJRG is funded by some of the largest and richest companies in the world. Each of these companies have been found responsible for at least one product or service that has killed or injured Americans, in most cases long after it became known that the item in question, from the Ford Pinto to Vioxx, was dangerous. Since its founding in 1993, CJRG has been the source of many of the intellectual underpinnings of the tort reform movement.

Institute for Legal Reform

An arm of the U.S. Chamber of Commerce and one of the most important players in the tort reform movement, the ILR spent more than $30 million to lobby the federal government for benefits for its members. Although it claims to represent small business, most of its budget comes from the donations of a few major corporations, With an average donation of $600,000, it is clear that the average mom and pop store or small manufacturing firm is not really the primary concern of the ILR. The goal of the organization is to induce the pubic to support corporate interests.

American Legislative Exchange Council

This organization works to change state laws. It writes model legislation, such as tort reform legislation, and lobbies state legislators, often with expensive trips and other perks. Like the other tort reform advocates, it is a secretive organization and prefers to let its targets – the members of state legislatures – do the talking. However in recent years it has received unwanted scrutiny because of some of the legislation that it wrote for Florida and Arizona, the Stand Your Ground law in Florida and the often-vicious immigration laws drafted for Arizona. Although it has been involved in a variety of efforts, as the Arizona and Florida laws make clear, the primary goal of the ALEC is to limit access to the civil justice system.

American Tort Reform Association

The American Tort Reform Association (ATRA) was founded in 1986. It once functioned as the PRP arm of the movement, but in recent years has started generating reports, such as the Judicial Hellholes® report. This report is allegedly a list of courts around the country that are seen as unfriendly to business. Not surprising, these courts tend to be ones in which members of the organization have lost. They have also proven skilful at creating organizations purporting to be independent, grass roots organizations, organizations that are actually funded and founded by ATRA.

Searle Civil Justice Institute

This group represents the effort of the tort reform movement to win academic respectability for tort reform. It funds legal and social science research projects through the Law & Economics Center at George Mason University in Virginia, which is a 501 (c) (3) under IRS rules, It does not have to disclose its donors. It prefers to fund projects near and dear to the hearts of tort reform advocates, including the ability of state attorneys general to use outside counsel, using mandatory binding arbitration clauses in contracts, federal pre-emption of state tort law, and class action lawsuits.

In our next post, learn about some of the projects undertaken by these organizations as they try to limit the access of individuals to the civil justice system.

Source: Trial, “Reclaiming Justice: Battling Tort ‘Reform’,” Dec, 2012.

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Corporations embrace tort reform at the expense of consumers, Part 1

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On behalf of of Kahn Gordon Timko & Rodriques P.C. posted in Personal Injury on Tuesday, December 4th, 2012

Despite everything you read and hear, the campaign called “tort reform” is designed to limit your ability to hold large organizations, municipalities and corporations responsible for their negligence through personal injury lawsuits. This campaign is well funded, and many ordinary Americans believe that limiting the ability to file lawsuits and receive damages is a good thing.

Unfortunately, the rationale for this campaign, the so-called “litigation explosion,” is not real. The number of lawsuits have declined significantly in recent years. The lawsuits that do get filed are anything but frivolous, contrary to what we are told. However, it benefits the promoters of tort reform to adjust the truth.

This is a well-financed campaign, involving scholarly think tank reports, press releases and news stories, blogs, Facebook pages, tweets and political campaigns. There are many organizations that have been founded solely for the purpose of advocating for tort reform, suggesting that limiting access to the justice system is the goal of multiple grassroots organizations. It is primarily the brain child of executives from Fortune 100 companies.

The corporations do not usually finance tort reform lobbying efforts directly. Instead, they work through a variety of institutes and organizations, many of which are non-profit 503 (c) (3)s. This allows the companies to distance themselves from the campaign while pointing to the apparent grassroots character of the organizations.

In our next post we will name and describe a few of these organizations that promote the agendas of their funders–huge corporations that seek to limit the ability of ordinary people to obtain justice.

Source: Trial, “Reclaiming Justice: Battling Tort ‘Reform’,” Dec. 2012.

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Tort reform, part 2: Tort reform helps insurance companies, not consumers

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On behalf of of Kahn Gordon Timko & Rodriques P.C. posted in Medical Malpractice on Monday, November 5th, 2012

In our previous post, we described the case of Naython Watts that resulted in overturning Missouri’s cap on jury-awarded damages in medical malpractice cases. Read more to learn about the larger issues involved in the effort to implement tort reform.

Unfortunately, children like Naython who were rendered severely disabled because of shoddy medical care will not always receive the help they need. In 33 states, victims like Naython be up against tort reform laws that arbitrarily limit non-economic damages to amounts that insurers in those states can live with – whatever the facts of the case.


Tort reform dos not benefit consumers by keeping medical costs down. It does not benefit doctors by reducing their medical malpractice premiums. In fact, an insurance industry study showed that malpractice insurance premiums actually went up in Missouri after damage caps were implemented. The only ‘benefit” was a drop in medical malpractice claims seen by insurers.

Not only does tort reform hurt individual families like Naython’s, but it limits a fundamental right of all Americans – the right to a trial by jury. It makes all of us pay more, one way or another, for the medical mistakes of a few bad doctors. In Texas, one of the two states that has investigated the effects of tort reform systematically, a peer-reviewed study revealed that the Texas 2003 tort reform law had not reduced health-care spending.

“Ultimately the burdens of the reforms likely fall disproportionately on the young, economically disadvantaged and those who suffer the most severe injuries,” states the report, which was published in the Journal of Empirical Legal Studies.

Despite intense pressure from insurance companies and others who seek to limit the power of juries in personal injury trials, several states besides Missouri have overturned caps on damage awards. Alabama, Georgia, Illinois, New Hampshire, Oregon, Texas and Washington have overturned the efforts of the insurance industry to protect itself at consumers’ expense. Fortunately, New York has not yet adopted this type of self-serving law; we hope it never will.

Part two of a two-part post on why tort reform is a lie.

Source: Huffington Post, “Exposing the Lie of Tort Reform,” by Larry Bodine, Oct. 18, 2012.

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