Saturday, April 30, 2011

Phony Reformers

Testimony on bills pending in the current Texas legislative session make it abundantly clear once again that tort reform is not about reform of any kind.  It’s about money and power.  Talking heads and fat cat practitioners of shady deals would have you believe they only want to protect the world from frivolous lawsuits.  But, they don’t give a twit about frivolous lawsuits.  It’s the real lawsuits with merit they fear and would like to eradicate.  

We have discussed one of these so-called reforms here in this blog.  This bill would provide that if someone, through their own negligence, killed 2 or more people, or seriously injured 5 or more people, they could stop a lawsuit in its tracks simply by making an offer of settlement.  The bill provides no standard of what an adequate offer of settlement would be and it punishes the would-be claimants by forcing them to pay the insurance company lawyers of the wrongdoers in the event a jury does not award at least as much as the defendants offered.  They call it a provision whereby the loser pays.  

The phony aspect of this is that the loser does not pay. Were the insurance company to offer a pittance and the plaintiff were to get a jury verdict for twice as much, there would be no penalty on the part of the defendant.  A true lose or pay would simply provide that whoever lost the lawsuit had to pay the other side’s attorney.  The so-called reform groups violently oppose such a provision.

During a recent hearing on many of these “reform” bills, an experienced attorney pointed out there are many abuses these groups seem to totally ignore.  He raised the question of whether or not the defendants of a lawsuit could be guilty of abuse.  

He told of a case where two people were seriously injured in an automobile accident.  The defendants had violated several traffic laws, including running a red light and t-boning the defendants, injuring them probably for life.  There were numerous witnesses to the accident and factually there was little or no doubt the defendants were guilty of negligence.  Instead of in good faith admitting their negligence and negotiating and going to trial on the issue of damages, the defendants’ attorneys filed a motion for summary judgment.  Although the defendants’ attorney knew or should have known there was no chance his motion would be granted, it required additional hours of work on the part of the claimants’ attorneys.  

After it was turned down by the court and ruled without merit, there was no penalty on the part of the defendants who filed such a motion.  Eventually, when the case reached the courthouse and was about to go before the jury, the defendants admitted negligence and went to trial only on the issue of damages.  They did so because they knew that if they, in the presence of 12 jurors denied what was obviously a fact, it would look like they were dealing in bad faith, which they were.  

From the reform groups I have named, there is absolutely no effort to curb this type practice in our courthouses.  There is no effort to curtail outlandish legal fees associated with trials charged by defendants.  Usually, they are charged by the huge Houston, Dallas and other metropolitan defense mega-firms.

Other evidence of the hypocrisy of the Citizens Against Lawsuit Abuse and Texans for Lawsuit Reform arose in hearings concerning the Texas windstorm claims arising from the recent hurricanes which besieged the Texas coast.  There is ample evidence that the executives of this insurance company-owned entity did not deal with victims of the hurricane in good faith, that in all likelihood kickbacks were made, favoritism was shown, nepotism was employed, incompetent adjusters hired and claims handled in a grossly negligent manner.  

Despite all of this compelling evidence, the lawsuit reform groups do not propose reforming the insurance entity, but instead seek legislation to curtail legal fees of the very lawyers, who through their diligence and efforts, uncovered the unethical and sometime illegal conduct of these people who were depriving Texans oftentimes of their homes.

Once again this shows that these people do the bidding of their fat-cat masters and really care nothing about reforming or improving the court system in Texas.  They are only interested in protecting the potential wrongdoers who are able to bankroll lobbyists and PR people in order to insulate themselves against being held accountable for their own wrongdoing.

Too many Texans seem to forget the tort system was created to bring some measure of relief to victims of negligence and bad conduct, but to deter that conduct by making an example of those who would injure and swindle their fellow citizens.  Oftentimes, the only thing these people will understand is hitting them in the pocketbook in order to deter people from manufacturing shoddy houses or unlawfully taking away the quality of life from others.

Although there is no definitive study on the subject, it appears since the wave of measures being passed through several state legislatures insulating doctors and hospitals from meaningful lawsuits, that there are more and more injuries occurring during medical procedures.  A recent study has pointed out that almost 1 in every 3 persons seeking medical treatment in a hospital is injured as a result of human error.  The rate of infections during hospital stays is growing at an alarming rate as a result of failure to take ordinary care such as washing one’s hands before performing medical procedures.  

Regulatory bodies such as the Board of Medical Examiners or attorney generals have proved effective as a measure to prevent harm due to human negligence.  The best tried and true remedy to deter such conduct is holding the wrongdoers liable before a democratically selected jury of one’s peers.  

It is obvious to some of us that having one’s fate decided in a democratic manner by free citizens sitting as a jury is certainly a scary proposition to some people.

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