Monday, June 23, 2008

Are You A True Tort Reformer? Here's One Way To Find Out

You may have heard of the term "tort reform." Generally, it refers to law changes sought by insurance companies and big business. This movement has been around for over 30 years, but it has accelerated greatly over the last 10-15 years both nationally and here in Ohio. These special interests have spent MILLIONS on radio, TV and newspaper ads, and lobbyists pushing for these "reforms." Here's the bait upon which tort reform is sold to the public: by cracking down on "frivolous lawsuits" and "runaway juries," this will protect businesses, which will be good for the economy, and hold insurance costs down.

Now here's the switch: while decrying "frivolous lawsuits," insurance companies then lobby to pass laws that impose arbitrary, one size fits all caps on even LEGITIMATE CASES OF SERIOUS INJURY. Here's how these caps work in Ohio: if you lose a limb or are rendered comatose due to a preventable medical mistake, for example, and a jury values your next 40-50-60 years of misery at $1 million, it is arbitrary reduced by law to $250,000.

What does limiting legitimate injuries have to do with cracking down on frivolous lawsuits? Nothing, of course. But that hasn't stopped the insurance industry from convincing the Ohio Legislature to pass limits on what seriously injured Ohioans can recover.

At the end of the day, the "tort reform" movement is alot like people who want politicians to "crack down on crime" by building more prisons. Sounds great from a distance, until you realize the prison is going in YOUR neighborhood. Suddenly, the situation is "different" or "unfair."

BUT.........if you STILL believe that arbitrary limits on what anyone can recover for serious and legitimate injuries is a good idea, you are probably a true "tort reformer." And if you are, you should print and sign the form below and take it with you whenever you need treatment from your doctor or hospital. That way, everyone will know that you're not going to get involved in our legal system as someone who "sues," and that you're willing to place blind trust in whomever you deal with.

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(Bringing Ohio Patients and Doctors Together To Fight the High Cost of Medical Care)**

Warning: Tort Reform affects your rights! Please do not sign this form unless you have had a face-to-face discussion with your doctor about tort reform.

Dear Dr. , I understand that I (or my child ) will shortly be undergoing the following medical care with you:

(Surgery Anesthesia Important medical exam/treatment)

On behalf of me and/or my minor child, I agree as follows:

It’s a Good Idea to Limit My Recovery in Medical Malpractice Cases

Like you, I am worried about the high cost of health care. Although I never really thought about it before, I think that it’s a really good idea that if you negligently injure me or my child for life, my opportunity to recover damages from your insurance company should be limited. After all, my limited recovery because of your negligence will keep malpractice insurance premiums low, and insurance companies will pass these savings on to all of us, and surely this will bring down health care costs for all Ohioans. I’m glad I’m sacrificing my rights to compensation for the good of all Ohioans, and I can’t wait for health insurance costs and doctors’ fees to be dramatically reduced real soon in Ohio because of all these savings.

Ohio’s Current Laws Do Limit Damages—But It’s Not Enough

In Ohio, we already have laws which limit my recovery from your insurance company. Nevertheless, I am agreeing to “cap” my recovery at $250,000 for pain and suffering damages.

You (the doctor) Can Sue Me For Everything—That’s OK

On the other hand, if I cripple you on the highway with my car, you can sue me and recover for all of your medical bills, lost wages, and pain and suffering, without limit. This seems to treat you better than me but I am willing to sacrifice my family’s well-being for yours.

I’ll Have to Pay Back What I Get from You to My Own Insurance Company

You have also explained to me that my own health insurance plan will want me to deduct from my recovery, and send to it, 100% of the medical bills it paid for my injury. I also understand that if the reason you are treating me is for a work related injury that my worker’s compensation insurance company will have a claim for all of the money it spends for my medical care and lost wages. What these insurance companies are owed will be deducted from my recovery against you. Once again, my limited recovery because of your negligence will mean lower health insurance costs that will be passed on to all Ohioans, which should be coming real soon.

I Want to Agree to These New Laws And Any Others The Ohio Legislature Might Pass Right Now!

I realize that you may want even more reforms that limit or even eliminate my right to bring a claim against you for negligence, so I am willing, in order to make it more affordable for your medical practice, to AGREE IN ADVANCE to any future proposed restrictions apply to my case. After all, we all need to pitch in to bring your rates down, which will be passed along to me in the form of lower health care costs.

So, in order to help you and your business I hereby solemnly agree if you hurt me or my child then:
• That even if I or my child are crippled, disfigured, blinded or in chronic severe pain for the rest of my/our life that the most you will have to pay for the pain, suffering, humiliation and embarrassment is $250,000.
• That out of any recovery from you I may have to pay back to my own health insurance or disability insurance company everything they paid because of my injury.
• That if I can't make ends meet because of any caps, I will simply go on government assistance.

Secrecy Agreement

I hereby agree in advance, that if you hurt me or my child and we settle my claim, we will keep the claim and the settlement secret so that no one else will find out that your malpractice insurance company has settled my case. I also agree, as is required in most settlement agreements, that I will pay you back a large portion of the settlement if word leaks out that your insurance company paid me.

Patient name (or parent if patient is a child)

Doctor’s Name: By signing this form the doctor promises that he/she has had an open and honest discussion with the patient about tort reform and has disclosed to the patient all prior claims paid by or on behalf of the doctor for medical malpractice. The doctor has also disclosed all pending claims so that the patient can make an informed choice about who to trust his/her life to.

**This form is authorized to be used by any doctor and any patient in Ohio. It is designed so that health care providers can have an honest discussion with their patients (and parents of child patients) about the impact of tort reform on patient care. It is also designed so that those who can’t wait for more tort reform to pass on a national or statewide basis can go ahead and enter into a private contract with their doctor for an upcoming treatment or surgery. It is hoped that if a doctor can get every patient to agree to this that maybe the doctor can get a better rate on his insurance and thus whatever the patient ends up paying for out of his pocket for injury can be passed along as a savings to the rest of society in terms of lower cost of medical care.

(Credit for the idea behind the form goes to Virginia attorney Ben Glass....)

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