Month: February 2011

Tort Reform

Michael W. Goldstein

Is “Tort Reform” something we need as a society, or is it just a concept derived by politicians to save big businesses, as well as insurance companies, cities, states and other municipalities from the expense of fairly compensating accident victims for injuries caused by a defendant’s negligence?

OUR OPINION

“Tort Reform” is a politically correct label for the concept of depriving accident victims of monetary compensation for their injuries caused by dangerous conditions, or by a defendant’s negligence. The proponents of “tort reform” argue that accident victims are not entitled to be compensated for their injuries, either because they must have caused their own accidents, or because they should be more careful navigating through the maze of hazardous conditions that we may face in our daily lives.

We believe that defendants must take responsibility for the hazards that they create or fail to repair, such as broken sidewalks, improperly maintained apartment buildings, wet floors that were mopped by an employee who left no warning signs, slippery supermarket floors caused by employees carrying or dragging a leaking bag of garbage, hidden staircases or open cellar doors without warning signs, inadequate lighting, dangerous products lacking readily available safety devices, and other preventable hazards that we may face because the responsible person or business was careless, negligent or simply didn’t bother to take proper precautions to protect us from dangerous conditions on their premises.

We strongly disagree with the “tort reform”advocates’ argument that people should be expected to accept those dangers as normal, and that in the event of serious injury, they should not be compensated.

If our system of justice does not hold defendants accountable for negligent conduct that causes serious injuries, there will be little incentive for landlords, store owners, manufacturers, etc. to maintain high levels of safety, which we all deserve.

Monetary Limits on Non-Monetary Damages (including pain & suffering)

Michael W. Goldstein

Many politicians, large corporations and insurance companies are pushing the public to accept Monetary Limits on Non-Monetary Damages. If enacted, this would mean that when someone is seriously injured due to a defective product, or due to the negligence of a property owner, store, municipality, etc., the accident victim would be entitled to be reimbursed for his or her medical and hospital expenses and lost wages, but would have an artificial limit set on the money damages he or she could possible receive for the non-monetary damages, including pain, suffering, loss of quality of life, and all the other adverse changes in life that the accident caused.

OUR OPINION

It seems to us that this concept is based on the ill founded belief that accidents are just a cost of doing business for corporations, municipalities, etc., and that injuries can simply be measured in medical bills and lost salary. For example, if a young man or woman who earns $50,000 per year and is an avid participant in sports is seriously injured and confined to a wheelchair for life, the proponents of monetary limits on non-monetary damages would agree that as long as the victim receives reimbursement for medical and hospital expenses, including the cost of the wheelchair, and the lost salary of $50,000 per year (adjusted for inflation), the only additional compensation should be the maximum of the pre-set cap of perhaps $250,000 for pain suffering and loss of quality of the rest of his or her life. (It should be noted that under this theory, if the same person was a professional baseball player, the lost earnings component of monetary damages would be enormous.)

The loss of the accident victim’s active life style, loss of personal enjoyment from participating in recreational sports, and the confinement to a wheelchair, as well as permanent pain, suffering, inability to ever walk again, will all be compensated by the cost of the wheelchair plus the predetermined cap on non-economic damages. Maybe as plaintiff’s attorneys, we are biased in favor of innocent accident victims, but we don’t think that $250,000 is a fair compensation for such a tragic loss.

Frivolous Medical Malpractice Lawsuits?

Michael W. Goldstein

Is the spiraling cost of medical care the result of over aggressive medical malpractice lawyers bringing frivolous lawsuits?

OUR OPINION

We strongly disagree with the notion that the spiraling cost of medical care the result of over aggressive medical malpractice lawyers bringing frivolous lawsuits. What this theory ignores is that the malpractice lawyer has no incentive at all to commence frivolous lawsuits, and has much to lose by following such an imprudent and improper course. First, in New York State, medical malpractice lawsuits must be certified to have merit in order to proceed. Second, medical malpractice cases are extremely expensive to litigate, particularly due to the high cost of medical experts to establish that a hospital or doctor deviated from the accepted standards of care. Third, in New York, the medical malpractice legal fees have been substantially reduced. This operates as a further disincentive for lawyers to accept marginal cases, or even clear cases of medical malpractice unless the damages sustained are very substantial.

In any system of justice dealing with medical malpractice, there will be instances where a physician or hospital is wrongly abused of malpractice, and in those instances, we believe that the lawsuit will be properly dismissed by either the judge or the jury. We believe however that under our current system of justice, many acts of medical malpractice are rejected by lawyers for the above reasons, and that frivolous or questionable cases, or those where the damages caused by malpractice are not substantial are never perused by lawyers at all.