The Plain Truth About the Practice of Personal Injury Law

Sunday, June 12, 2011

Federal Efforts at Tort Reform

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Last year, the Illinois Supreme Court rejected damage caps in medical malpractice cases. Now federal legislation has been introduced seeking to limit non-economic damages in nursing home negligence and medical malpractice claims while shortening the statute of limitations. This of course represents politicians efforts to once again cater to the insurance lobby. This is of course contrary to objective evidence that such measures have a negligible effect on overall costs while drastically curtailing individual legal rights.

The Help Efficient, Accessible, Low-Cost, Timely Healthcare (HEALTH) Act of 2011 (H.R. 5), introduced in January, would also restrict liability in cases involving unsafe drugs and medical devices. This results from the efforts of the drug manufacturer lobby. The primary feature of the bill is a $250,000 cap on non-economic damages. But this rush to radically alter America's system of civil liability is not without vocal opponents.

Approximately 24 state and national consumer and public interest groups recently voiced their strong opposition to the proposed law in a letter to the House Judiciary Committee. The group roundly condemned the short-sighted strategies outlined in the bill, arguing that "caps on non-economic damages do nothing but stop the most severely injured patients from getting adequate compensation." But other aspects of the bill are also very troubling:
H.R. 5 would impose a statute of limitations that is much more restrictive than current provisions in many states
The bill eliminates the concept of joint and several liability, which allows a plaintiff to obtain full damages from any single defendant who is fully responsible for an injury
The proposed HEALTH Act of 2011 limits contingency fee arrangements, which are the only means by which most citizens can afford sufficient representation to oppose insurance company lawyers

H.R. 5 would impose a strict new standard for proof of the need for punitive damages, which are often the only way to make the most negligent providers change their ways

Perhaps worst of all, such federal reforms would impose from above the types of "tort reform" that have already been definitively rejected in many states. The authors of the letter conclude with a powerful statement: "Health care reform should not be accomplished by taking away the legal rights of patients who are injured through no fault of their own, or reducing the accountability of those who commit wrongdoing." Every concerned American should contact their Senators and Congressmen to express similar views.
Steinberg Burtker & Grossman, Chicago’s top personal injury attorneys continue to fight against tort reform and protect victims’ rights. Victims of medical and nursing home malpractice deserve full compensation for the negligent acts of others.

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