Maryland Injury and Disability Law : Washington DC Metro Injury & Disability Lawyer & Attorney : Greenberg & Bederman : Accidents, Falls, Medical Malpractice : Maryland, DC, Virginia

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

This is a good thing to have if you happen to find yourself accused of a crime, but for those of you who are pursuing a civil remedy to a personal injury or a breach of a contract, there is no real time line for your case to get to court. You will get there eventually. But quite often, it benefits the defense to drag out the process as long as possible.

Here is an example: We have been discussing the serious health problems that have occurred with women who have been using Bayer’s line of birth control pills for about two years now. The issues with Yaz, Yasmin and Ocella have been going on for a lot longer than two years. It has been pretty well established that otherwise healthy women have been hospitalized with pulmonary embolisms, deep vein thrombosis, strokes, heart attacks and gall bladder disease, and the one major thing these women had in common was that they were taking Bayer’s line of birth control pills, each of which contain a synthetic variation of progestin called drospirenone. This ingredient can cause an increase in potassium levels in the bloodstream, which leads to a more active clotting mechanism. Clots form in the bloodstream, and then they start to travel, which leads to blockages in the bloodstream. This is where the pulmonary embolisms, strokes and heart attacks come from. The contention of the majority of these lawsuits is that Bayer failed to adequately research the effects that this new ingredient would have on the women who used their birth control pills.

As we said before, we have been discussing this for over two years now. In fact, we have a few clients who have been injured due to what we believe are these defective yaz birth control pills, and thousands of other women all over the country have filed suit for identical reasons. A few of these cases have finally been scheduled for October of next year:

 “The first trial dates for any Yaz lawsuits, Yasmin lawsuit or Ocella lawsuit pending in New Jersey state court will begin in the fall of 2012, with at least two cases to be selected as test cases out of hundreds of claims pending in the state.”

If this were a criminal case, the delay wouldn’t nearly be this long.

In many respects, defendants in injury cases use this delay to their advantage. The longer it takes for an injury victim to get to court, the more likely it is that this person will either accept a settlement that is much less than they can deserve, or will give up the case entirely.

For instance, let’s say you get hit by a car and have to spend six weeks in the hospital. During these six weeks, you aren’t working. You have no source of income. This does not matter one bit to the utilities, the bank that holds your mortgage, and the credit card companies. They expect to get paid. The insurance company of the driver that hit you has no such financial worries. Ultimately, they have you at a disadvantage, and many insurance companies will offer you much less than you will need to support yourself. If you refuse that offer, they have all the time in the world. They can request delays in the court proceedings, and often do. In the meantime, your financial situation gets more precarious with each passing day. All of a sudden, that initial lowball settlement offer starts to look pretty good.

One of the major problems with the Sixth Amendment is that it does nothing to address the delay that injury victims have to face to get their cases heard. While having an experienced attorney to help you navigate the legal process in your injury claim ensures your rights are protected, there is unfortunately, no such thing as a “speedy trial” for injury victims.

Greenberg and Bederman is a personal injury law firm located in the Washington, D.C. area. We are currently offering legal assistance to those who have been injured due to no fault of their own, and that includes car accidents, medical malpractice, defective drugs, and pedestrian or bicycle accidents. If you or a loved one has been injured due to someone else, contact Greenberg & Bederman for a free consultation.

But every so often, even staunch advocates of tort reform find themselves in instances where they need the aid of the courts, and that makes them rethink their whole outlook, especially when they discover that the tort restrictions that they supported have prevented them from receiving fair compensation for their damages. Former senator Trent Lott (R-MS) serves as a perfect example of this.

In the wake of Hurricane Katrina, thousands of people in Louisiana and Mississippi found themselves with their homes ruined by the devastation of a category three storm. Katrina lasted almost a week, and at its peak the wind speed was moving at 175 miles an hour. The preliminary damage estimates in terms of property was $100 billion.

Among those who found themselves with lost property was Senator Lott. He owned a beach house in Mississippi that was deemed a total loss as a result of the hurricane. Like thousands of people all over the Gulf Coast, he filed a damage claim with State Farm. And, like thousands of people all over the Gulf Coast, he had his claim promptly and utterly rejected by State Farm.

It’s important to note that prior to this rejection, Senator Lott was one of the biggest advocates of tort reform in the Senate. Here are just a few of his quotes and press releases on the subject.

"The Democrats seem to think that the answer is a lawsuit. Sue everybody."
- Sen. Trent Lott, 7/20/01

"I'm among many Mississippi citizens who believe tort reform is needed."
- Sen. Trent Lott, 5/8/02

"You know, obviously we should [enact tort reform]...Someday it will happen, and the sooner the better."
- Sen. Trent Lott, 1/24/01

"Sen. Trent Lott of Mississippi today credited the agenda of tax cuts, deregulation and tort reform initiatives passed by the Congress and signed into law by President Bush with the overall upturn in the national economy."
- Sen. Trent Lott press release, 12/2/05

"If their answer to everything is more lawsuits, then yes, that's a problem, because I certainly don't support that."
- Sen. Trent Lott, 8/2/02

"It's sue, sue, sue... That's not the answer."
- Sen. Trent Lott, 8/4/01

But once Senator Lott got a taste of how the very industry that he backed through speeches, votes on the Senate floor and legislation actually operates, he didn’t much like it. So he filed a lawsuit against State Farm, in which he hoped to force the insurance company to pay for his damages.

A more recent and even more high profile defection from the tort reform movement occurred on June 6, 2006, when Judge Robert Bork fell and injured himself while getting ready to deliver a speech at the Yale Club in New York City. According to the Wall Street Journal:

“Bork was at the Yale Club last June to speak at an event sponsored by The New Criterion, a monthly review of the arts and intellectual life. According to the suit filed in federal court in Manhattan, the club failed to provide steps and a handrail to climb onto the dais. Bork fell backward as he was attempting to climb the dais, striking his leg on the stage and his head on a heat register, the suit says.”

The physical damages involved a massive bruise to his leg that, according to the complaint, required surgery and months of physical therapy to heal properly. Judge Bork believed that the Yale Club was negligent in that it didn’t provide a suitable railing or staircase on the way up to the speaking dais, thus directly contributing to his injuries.

Prior to his accident, Judge Bork was very much for tort reform. In fact, one of his more famous quotes on the subject compared the United States civil justice system to piracy on the high seas:

“Courts are now meccas for every conceivable unanswered grievance or perceived injury. Juries dispense lottery-like windfalls, attracting and rewarding imaginative claims and far-fetched legal theories. Today's merchant enters the marketplace with trepidation - anticipating from the civil justice system the treatment that his ancestors experienced with the Barbary pirates.”

This quote was from 1995, but it basically encapsulates Judge Bork’s entire judicial career. He held the tort system in very low regard, and actually lost his chance to be a Supreme Court Justice in part due to his extreme views on tort law and punitive damages. Yet there he was in 2006, filing not only a lawsuit to cover his damages but also seeking punitive damages in his complaint.

In the space of three years, two major proponents of tort reform have learned a very valuable lesson, which is that perhaps our tort system isn’t nearly as “broken” as it seems to be. The initial reaction would be to call Senator Lott and Judge Bork hypocrites, but we actually view it as an example of how ideology doesn’t always line up perfectly with reality. They believed something, and real life proved their beliefs wrong. They believed that our court system was broken right up until the point where they discovered that they would need it.

To learn more about personal injury in Maryland, please read our maryland personal injury page.  To learn more about our personal injury lawyers, please read about Jason Fernandez, Andrew Bederman, or Roger Greenberg, or view our personal injury videos on Youtube.

Suppose the juror has no preconceived notions about either the claim or the parties to the case, yet once he or she leaves the courtroom at the end of each day, the juror is surrounded by people or the media offering opinions and information on the matter that is being adjudicated. Once the juror leaves the courthouse, he is not supposed to communicate with others about the case, nor acquire or attempt to find any extraneous information.  But, with free access to internet sources such as Google,Yahoo, Twitter and Facebook, many jurors cannot withstand the temptation to dig deeper, to get more information, or to share the experience with their friends. Some jurors post updates on cases while the cases are still ongoing. As recently as last week, a juror in a big federal drug trial in Florida admitted to the judge that he had been doing research on the case on the Internet, despite the judge’s instructions. After 8 weeks of trial, the judge had no choice but to declare a mistrial, because it turned out that many of the other jurors were doing the same thing. 

Jurors are not supposed to see the evidence that was excluded by the judge or have access to prejudicial information, but what’s to stop them from doing so. Although judges have long since revised their jury instructions to include warnings about using internet sources, some jurors just don’t follow them. 

Jurors have always been on their honor not to look up the facts of the case. The difference now is that, with Facebook and Twitter, it’s easier to find out when a juror has broken the rule. Cell phones and BlackBerrys are here to stay so we need to develop new mechanisms to ensure that jurors do not access them, before justice is decided by the vote of “twitterers”.

To learn more about personal injury law please read our personal injury law page.  To learn more about our personal injury trial lawyer, please read about Jason Fernandez, or watch Jason's personal injury video, or contact Greenberg & Bederman for a free case review.

The example of the dead infant isn’t mere conjecture on our part. According to an investigative piece by Paul Adrian that was broadcast on a Fox TV affiliate in Dallas, a family from that area made the decision to take their infant son off of life support. The infant’s parents were convinced that a preventable medical error had been made which placed their child in that position, but due to the non-economic caps, the cost of bringing the case to court would have cost more than the damages they would have received. As awful as this sounds, it turns out that the only way that damages in a malpractice trial involving a dead baby can be taken seriously in Texas is if the baby was making money. The life altering pain of the parents counts for nothing.

What was the situation like in Texas where such absurd and draconian measures were actually voted into law by its own citizens? Were people whose injuries involved nothing more than stitches walking out of courtrooms with million dollar verdicts? Was the Texas judicial system nothing more than a free ATM machine for unethical people and their equally unethical attorneys? Was there an exodus of doctors from Texas, leaving the injured and sick to fend for themselves? Were the insurance companies bleeding money so badly over lawsuits that they had no choice but to raise their rates to astronomical proportions?

The answer depends on who you ask. If you ask insurance companies and their public relations teams, the answer is yes. If you ask a bipartisan group of college professors, the answer is no.

The piece on the Fox affiliate cites a study that provides 14 years worth of Texas malpractice data, including claims and payouts, through both settlements and verdicts. In this study,

“…The data present a picture of stability in most respects and moderate change in others. We do not find evidence in claim outcomes of the medical malpractice insurance crisis that produced headlines over the last several years and led to legal reform in Texas and other states. At least in Texas, the rapid rise in insurance premiums that sparked the crisis may reflect, in significant part, insurance market dynamics rather than changes in claim outcomes.…Controlling for population growth, the number of large paid claims (over $25,000 in real 1988 dollars) was roughly constant from 1990-2002. The number of smaller paid claims declined. Controlling for inflation, payout per large paid claim increased over 1988-2002 by an estimated 0.1% (insignificant) - 0.5% (marginally significant) per year, depending on the

dataset we use to define "medical malpractice" claims. Jury awards increased by an estimated

2.5% (insignificant) - 3.6% (barely significant) per year, depending on the dataset, but actual

post-verdict payouts in tried cases showed little or no time trend. Real defense costs per large

paid claim rose by 4.2-4.5% per year. Real total cost per large paid claim, including defense

costs, rose by 0.8-1.2% per year.”

In other words, according to the actual numbers, there wasn’t much to panic about in terms of medical malpractice lawsuits.

So why were groups like Texans for Lawsuit Reform claiming that the sky was falling? If there was no big leap in judgments or payouts or even malpractice claims, then why were the premium rates going through the roof?

According to Paul Adrian, the answer might be, ironically, tort reform.

In 1995, Governor George W. Bush enacted what were called “Tort Reform Rate Reductions,” which forced medical malpractice insurers to lower their rates over a period of five years. How significant were the overall rate reductions?

·         1996: $435.5 million in rate reductions

·         1997: $441.2 million in rate reductions

·         1998: $656.4 million in rate reductions

·         1999: $699.5 million in rate reductions

·         2000: $685.5 million in rate reductions

So between 1996 and 2000, the state of Texas enacted regulations that cost medical malpractice insurers a little under THREE BILLION DOLLARS in premiums. Once the five year period was up and the mandatory rate reductions were over, insurance companies were quite eager to make up their losses. Hence the skyrocketing rates.

Insurance companies needed both a fall guy and justification for the spike in premiums, and they found them in trial lawyers. They also needed any sort of legislative leg up that they could get in order to maximize their profits. Since the insurance companies weren’t comfortable with going through the very legislature that made them lower their rates in the first place, they did an end run around them and, with the help of tort reform organizations that they financed and PR firms that they hired, they managed to get Proposition 12 on the ballot. It was voted in to law in November of 2003, and as a result a case involving a dead baby can’t even get to court.

Tort reform organizations all over Texas and all over America are touting the results of these economic caps as the reason that Texas malpractice insurers were able to offer even lower rates to their doctors, as shown in an article in The Austin Business Journal:

“In recent months, the state's top medical malpractice insurance companies have trumped rate cuts. They're crediting the lower rates to Proposition 12, a constitutional amendment approved by Texas voters in September 2003. That amendment cemented the Legislature's decision that year to cap noneconomic medical malpractice damages at $250,000.”

The article also mentions that the Texas Medical Liability Trust will reduce its rates by 5%, while Americans Physician Insurance Exchange is cutting theirs by 13%. And why wouldn’t they? By all accounts insurers in Texas have been making money hand over fist. And the $250,000 cap on non-economic damages is a miniscule proportion of that money.

Remember that after the “Tort Reform Rate Reductions” in the late 90s, insurers raised their rates to astronomical levels, and although they lowered them a bit after Proposition 12 was voted into law, the rates were still incredibly high. We refer again to the remarkable piece by Paul Adrian:

“Insurance premiums did drop for Texas doctors. According to TDI, the state’s largest insurer of doctors, The Texas Medical Liability Trust, dropped its rates 31% between 2004 and 2008, but that's after the rates had jumped up 148 percent between 1999 and 2003.  Insurance rates have come down, but not by nearly as much as they had previously increased.”

For a real world analogy, the Texas Medical Liability Trust bragging about dropping its rates 31% is the equivalent of an 800 pound man losing about forty pounds and then putting out a press release proclaiming that he is “thin.”

To summarize, “Tort Reform Initiatives” cost insurers in Texas billions of dollars, so they spiked the rates and blamed the lawyers in order to recoup what they lost. After securing legal limitations to the rights of Texans, they lowered the rates just enough to appear magnanimous, but not really enough to bring them down to normal levels. They then made it seem that the reason that they could finally “afford” to bring the rates down was not because of the windfall profits that they have made over the past six years, but because of a ballot initiative that states that unless a Texan makes money, then that Texan isn’t worth anything.

It should be mentioned here that the term “emotional pain” does not exist to simply make people rich. It is rather an acknowledgement that incompetence and preventable mistakes can cause crippling emotional hardship. If you think that’s an exaggeration, try to imagine how Paul Pinsukanjana felt when he ordered his infant son taken off life support. Try to imagine how he felt when he discovered that, thanks to the laws of his own state, lawyers can’t even afford to accept his case. Try to imagine how he feels, living with the knowledge that there might be a doctor or nurse still at work at that same hospital who was directly responsible for his son’s death. Try to imagine how he feels, knowing that that same doctor or nurse can continue to practice, with no fear of any adverse consequences if another mistake is made.

As we said, it’s impossible to put a price tag on that kind of pain, but we think that $250,000 feels pretty cheap.

To learn more about medical malpractice law, please read our medical malpractice law home page.  To learn more about our medical malpractice lawyer, John Sellinger, read about John Sellinger, or watch the medical malpractice video by John Sellinger..