Are you affected by TORT REFORM? The short answer is “yes.” We all are, but how do you know? I know because my clients keep apologizing to me when you come into my office. It is very common for me to meet with a new client for the first time and hear, “I am not the type of person to sue anybody.” Already, the tort reform movement has you feeling self conscious about being repaid for medical bills and lost wages, and for being made whole. My general response is that of course you are not; this is the first time you have been injured. Doesn’t an injured person have a right to be made whole? The entire basis of tort law (torts are civil wrongs for which the law provides a remedy) is to make the injured party whole, meaning, to place them in the same position they were in prior to injury. Insomuch as we cannot go back in time and undo a wrong, we instead make up for it monetarily. Generally when one is injured, one is entitled to recover the cost of medical treatment, reimbursement for lost wages, reimbursement for damaged property, future care if required, and payment to offset the pain and suffering experienced by the injured party. These are not new rights. The basis of these rights, and the foundation of tort law, is over 3,000 years old, and arising directly from the Bible. See Exodus chapt. 21 (Mishpatim). You should not apologize for being injured. But, that is what tort reform does. But what is tort reform?
From a trial lawyer’s standpoint, the answer is that it is a national movement organized to prevent my clients from being made whole. It is a national movement organized by very highly paid lobbyists for insurance companies and similar entities, that wish to protect their interests to the detriment of my clients. It is a national movement that can afford to pay for billboards, TV commercials, radio ads, time with politicians, and a host of other very expensive and effective techniques to make you think that anyone who is injured is faking it and just out to get money. It is a national movement backed by large corporations that has changed our laws stripped us of our rights.
Tort reform whether here in Maryland, or in any other state functions by limiting your right to initiate a claim, and then when you get over that hurdle, it caps your right to collect damages. Tort reform stops you from being made whole. Examples include mandatory mediation clauses in contracts, choice of forum clauses, and the Maryland Health Care Alternative Dispute Resolution Office. Many people don’t know that when they sign a consumer contract, whether it is for mobile phone service, a credit card, or even replacement windows, the small print will often include a clause that says that the consumer cannot sue them. Instead, they must submit to an arbitrator, outside the court system. That may seem fair at first, figuring an arbitrator is a professional, the arbitrators do hundreds if not thousands of these for the credit card company, how many do they do for you? Why should you have to give up your right to a trial or trial by jury just to get a cell phone? The purpose is to shift the balance of justice from you to the large corporation. Also, you may not know it, but if you are permitted to file a lawsuit, your Maryland contract dispute may have to be brought in a Delaware court. The purpose is twofold. First, the corporation chooses a forum that is favorable to the corporation. Second, many people will not file suit hours away from their home. It is a win-win situation for the corporation. After all, you signed the contract. Didn’t you read the fine print? But what other choice did you have? If all of the mobile phone providers have the same clause, and you cannot negotiate the terms, what can you do?
Many people do not know that you cannot sue a doctor in Maryland for malpractice until you have first filed a claim in the Maryland Health Care Alternative Dispute Resolution Office (HCADRO). The HCADRO is a State agency which operates out of the William Donald Schaefer Tower in Baltimore. The sole purpose of the HCADRO is to protect doctors, not injured patients or the families of deceased patients. After filing with the HCADRO, you must then file a Certificate of a Qualified Expert for each specialty involved in the claim, stating that the doctor you wish to sue violated a duty owed to the patient, and what that violation was. The State further limits the doctors that you are permitted to use for your Certificate. The doctor you use must be a clinician, the doctor cannot have been retired for more than 5 years, and there is a limit to the amount of forensic work the certifying doctor performs. There is no other profession in Maryland with this type of State protection.
Other ways that tort reform affects you is with caps. Maryland for example has a cap on pain and suffering. No matter how bad your injury is, if your state has a cap, you cannot collect. For example, if today, you are waiting for bus in Maryland at a marked bus stop, on the sidewalk, and you are run over by a tractor tailor, and you are paralyzed from the neck down, the most you can recover for pain and suffering is $755,000.00. Most people would find offensive. The purpose of tort law, or personal injury law, is to make people whole, these caps simply protect negligent parties, mostly large corporations, from taking responsibility for their negligent actions.
Another tactic by tort reformers is to damage the reputation of trial lawyers. If you go online, you can find a host of websites illustrating frivolous lawsuits and stories of how trial lawyers are ruining the economy. If you, however, research these websites on snopes.com or similar sites, you will find most of these stories are false. They are made up by tort reformers to libel trial lawyers and convince the public that there is a crisis, and that tort reform is needed. In reality, it is the trial lawyers, not the tort reformers, that are concerned with the safety of the public. It was trial lawyers that uncovered the fact that Ford had done a cost benefit analysis on the Pinto and had decided it was cheaper to pay off families of those killed or injured in the vehicles rather than making their cars safe. It is trial lawyers that keep doctors, businesses, and pharmaceutical companies in check, reminding them that there are consequences to their negligent actions.
When a new client comes into my office and tells me that they are not the type of person to sue someone for an injury, I think to myself, “Lucky for you, I am.”