Tuesday, September 13, 2011

Does Tort Reform Create Jobs?

For those unfamiliar, tort reform is politicians passing laws limiting your right to bring a lawsuit and limiting what you can recover due to someone else's negligence. Standing directly behind these politicians, like a hand on a shoulder, are special interest groups who "lobby" (I use that term lightly--think $$$$) for passage of these laws. The players? Liability, medical malpractice, and health insurance companies, medical groups, The Chamber of Commerce, and about 287 other well heeled (think $$$ again) groups. Their premise? Cutting down your individual rights is good for you, and good for all of us, because it creates jobs.

It's a simple mantra: less lawsuits means more jobs. Nice and "bumper stickery." The other day I found this link searching the "Internets" where the Governor of Mississippi is claiming that after tort reform measures passed there, 41,000 jobs were created. How he specifically tied this to passage of tort reform laws is unclear. It's like saying that Captain Crunch makes the sun shine because I ate it for breakfast three days in a row and then the sun came out, but let's take The Governor at his word and accept it as true.

Well who cares about Mississippi? What about Ohio? Let's review. In 2003, Ohio pols passed "medical malpractice reform" and now we have caps on damages ranging from $250-500,000 for people who win their case and prove in court they've been injured due to medical negligence (Note: there IS no cap for wrongful death medical claims because The Ohio Constitution forbids it).

Not to ignore the "lobbying" of other corporations who got in line after the 2003 reforms, in 2005 Ohio pols passed "general tort reform" for ALL types of Ohio personal injury claims. Those caps range from $250-350,000, with exceptions for certain catastrophic injuries.

We've had almost a decade now of a burlap sac of "legal reforms" in Ohio. And we're not alone with just our like minded Miss. friends. Over 32 states now have "caps" on damages that limit what those maimed and injured can recover in a lawsuit.

So where are all the Ohio jobs that were supposed to flood into our state after these reforms? Where are all the decreased health insurance premuims in Ohio? Where are the lowered health care costs and lower medical bills?

If the "tort reform means more jobs" premise is true, the economies of 32 states should be booming right now with an explosion of jobs and low unemployment rates, right?

How is this "let's trade your rights for jobs" premise working? Anyone? Pass the Captain Crunch please. It's getting cloudy here in The Buckeye State.....

Thursday, September 1, 2011

Anatomy Of A Lawsuit (Part 2): The Investigation

“Do I have a case?” It’s a common question in any initial client meeting. The answer really depends on what happened to you, and this in turn will determine both the timing and extent of investigation needed to answer this question.


By and large, many auto accidents are straightforward. If you were rear ended or broadsided at an intersection, usually this is documented in a police report, the at fault driver is cited, and frequently that person’s insurance company will acknowledge responsibility for the collision (responsibility for all of your medical bills, lost wages and injuries is another matter—don’t expect the insurance company to roll over on those issues). These situations many times obviate the need to launch a detailed investigation. However, there are many exceptions to this rule.


In these situations, many times it is a good idea to hire an accident reconstruction expert to review any forensic evidence such as skid and yaw marks left at the scene, any of the vehicles involved, or any other physical evidence. Occasionally, law enforcement accident reports miss or fail to document critical evidence, making it necessary to conduct a scene investigation with the accident reconstructionist, who can prepare a full scale diagram of the accident specifics.

Large truck collisions present especially unique concerns as I have written about here and here. Time is frequently of the essence and the trucking company must be put on immediate notice of a potential lawsuit in order to preserve a slew of internal documents that may shed light on how and why the collision occurred.


The timing of any medical malpractice investigation depends on a whole host of factors, and there are many traps lurking here. The starting point of any medical malpractice investigation is obtaining the medical records in issue. However, It is not uncommon for a malpractice victim to still be in the throes of medical treatment weeks or months after the initial acts of malpractice. If records are requested while you are still receiving treatment from the physicians who “inherited” your treatment, they may get wind of your request, and this may impact your medical treatment (think “white coat of silence” and this will make more sense). Since your main goal is to get the best treatment you can, the last thing you want to do with a premature request for records is tip off your new physicians that you may be looking into a potential investigation of the doctor who may have committed malpractice.
On the other hand, since Ohio’s statute of limitations is so short (in many cases one year), there may be no choice but to request the records immediately due to time constraints. However, all these things must be balanced when any investigation is launched.

In other cases, particularly wrongful death cases, sadly many records are not complete until weeks after the incident. You should allow a reasonable amount of time to pass to ensure that the records are complete before you request them.

As you can see, each situation is unique, and timing is everything. Only an experienced personal injury can guide you through some of these minefields in a way that will allow for a thorough investigation before answering your legitimate question: “Do I have a case?”