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Mark Bello
Mark Bello
Attorney • (877) 377-7848

“Rein in Frivolous Lawsuits”? Mr. President: Please Explain Yourself

3 comments

In his 2011 State of the Union address, President Obama suggested that he would work with Republicans to “rein in frivolous lawsuits” against medical providers “to bring down costs.” I have a lot of respect for the President; his actions over the past two years, during difficult times, have greatly improved our country. Congress’ historic passage of his health care initiative, alone, assures his place in history. However, the President’s “frivolous lawsuits” statement is troubling. Is he willing to go along with some Republicans’ cruel version of “tort reform”? Is he willing, like they are, to sacrifice the rights of the injured and disabled to shield the medical and drug industries from accountability?

“Frivolous lawsuits” are almost non-existent. The suggestion that “lawsuit abuse” clogs our court dockets is a myth, circulated by corporate interest groups looking to increase their already obscene profits on the backs of the injured and disabled. Attorneys handle injury and disability cases on a contingency fee basis; they advance their precious time and their own money to pursue these cases. Does it make sense that they would do so for cases that are “frivolous”, synonomous with “worthless”? The “frivolous lawsuit” excuse for tort reform is, simply, a lie; it is too time-consuming and too expensive for lawyers who work on a contingency fee basis (they get paid out of what they collect) to pursue worthless litigation in the hope that “someone” may pay “something”. Simply stated, lawyers cannot afford to handle “frivolous cases”. And some of the tort reformers favorite targets are medical liability cases, also known as medical malpractice lawsuits.

Did you know that thousands of people die each year from preventable medical injuries? Despite the alarming number, many States have passed legislation that restricts access to the court system, creates onerous barriers to institute and pursue medical malpractice cases, and imposes damages caps on malpractice recoveries. If the goal of tort reform is to limit the pursuit of “frivolous (worthless) lawsuits”, why would the tort reformers and the various legislatures who pander to them need a damages cap? The sensible, logical answer to this question is that the target of tort reform is not, and has never been, “frivolous lawsuits”. That term is a red herring, spouted loudly to confuse the public into thinking there is a “crisis”. It is serious cases with serious injuries that are the targets of the tort reformers. Thus, caps benefit those who need assistance the least, doctors, insurance companies, and big business. They benefit those who are guilty of serious wrongdoing and who have caused serious injuries. So, ask yourself, why should we, the taxpayers, give these corporate wrongdoers a bailout?

If your husband, wife or, worse, your child, suffered serious injuries, for example….paralysis or…. loss of limb(s) due the negligence of a doctor, what would be fair compensation to cover medical expenses, care, and pain and suffering incurred for the rest of the child’s life? What if I told you that you might live in a State that limits your recovery to an artificial, legislatively set, “capped number”? What if I told you that the “capped number” is often as little as $250,000? Is this full and fair compensation for the pain, suffering, and difficult future that awaits your precious loved one? In this humble writer’s opinion, justice demands that it is these tort reform laws that need reforming. The last thing our citizens need is more tort reform.

For years, the US Chamber of Commerce, insurance companies and other huge corporate interests have been spending millions of dollars in a greedy attempt to limit victims’ rights to seek justice through the court system when they have been victimized by medical malpractice or other corporate wrongdoing. They spend millions to prevent individual citizens from holding wrongdoers accountable for their actions, yet, they utilize the court system and political campaign contributions to advance their own selfish agendas. Your individual voice as a citizen is powerful, but it must be heard. The right to justice does not only apply to the rich and powerful, not just the Chamber, not just insurance companies, not just to doctors, tobacco and pharmaceutical companies; it was a gift all of us, individually, provided in the 7th Amendment of the United States Constitution.

The Institute of Medicine estimates that less than 15% of medical malpractice victims receive any compensation at all for their injuries. This is primarily due to the fact that many patients injured by malpractice do not pursue litigation. And those that do only pursue litigation for serious harm. Again, litigation, especially medical malpractice litigation, is far too expensive to pursue frivolously. So, most malpractice goes unpunished, victims uncompensated. If those responsible don’t compensate the victims, who does? YOU! That’s correct, it is the US taxpayer who picks up the tab for the negligence of others, through Medicare, Medicaid and other social programs.

President Obama said that he wants to cut the federal budget deficit without “doing it on the backs of our most vulnerable citizens.” I take him at his word; if he is serious, however, then he needs to explain his right-pandering “rein in frivolous lawsuits” statement. Because preventing and/or dismissing “frivolous lawsuits” is something that any sensible judge already has the power to do. We do not need new legislation to accomplish that goal. If the President meant limiting access to the civil justice system, or capping damages at the federal level, common sense and justice suggest that he reconsider.

Federal laws that restrict the filing of and/or recovery in medical liability lawsuits would only decrease the burden on the perpetrators and their insurance companies and shift that burden onto victims and taxpayers. Is that what you want? Is that what your President or your legislators should want? Write letters to all lawmakers; citizens: stand up for your civil rights; support and vote for pro-justice candidates. Require your President to clarify his position and find out where your elected representatives stand on these important issues. After all, you or someone you love is only one tragic accident or incident away from being affected by these terrible justice-restricting laws. Make your voices heard, loud and long, all over the land.

Mark Bello has thirty-three years experience as a trial lawyer and twelve years as an underwriter and situational analyst in the lawsuit funding industry. He is the owner and founder of Lawsuit Financial Corporation which helps provide legal finance cash flow solutions and consulting when necessities of life litigation funding is needed by plaintiffs involved in pending, personal injury litigation. Bello is a Justice Pac member of the American Association for Justice, Sustaining and Justice Pac member of the Michigan Association for Justice, Business Associate of the Florida, Tennessee, and Colorado Associations for Justice, a member of the American Bar Association as well as their ABA Advisory Committee, the State Bar of Michigan and the Injury Board.

3 Comments

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  1. DBR says:
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    If there are no “frivolous” lawsuits, how do you explain that juries determine that 90% of malpractice cases which land in court (over $100,000 in defense costs) are found in favor of the defendant doctor or hospital?

  2. Mark Bello says:
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    Thanks for your question. It is somewhat easy to respond to. First of all, often, the best cases are settled; they do not go to trial. Insurance companies know when they are going to get their butts handed to them and they will offer sufficient compensation, pre-trial. Thus, cases that finally go to trial are, most often, chosen by the defense, not the plaintiff. In those cases, a determination for the defense does not mean that there wasn’t a legitimate issue that needed to be considered by the jury. There is a long discovery process, experts on both sides, and the jury, simply, could have found the defendant’s case more compelling than the plaintiff’s. That means the defense did a good job in reducing the impact of the plaintiff’s presentation. Perhaps the defense expert testified better tham the plaintiff’s. Perhaps the plaintiff did not do a good job in presenting the case. Perhaps, perhaps, perhaps. There are many factors that go into whether a case is ultimately successful. But, the mere fact that a case was unsuccessful, does not mean that it was “frivolous” when it was filed; if is was, the judge would have dismissed it long before it ever saw a jury trial. Those Injury Board members who are actively practicing in today’s legal climate (I am not) are invited to chime in on this important question.

  3. Mark B. says:
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    I think it’s safe to say that there are a lot of different opinions out there regarding the definition of “frivilous” lawsuits. In my mind, 64 percent of all medical liability cases being dropped or dismissed due to a lack of merit is significant. Why do you think this number is so high? http://www.equotemd.com