Header image

It probably isn’t obvious to most people, but I believe the Wisconsin governor’s plan to strip state unions of rights and so-called “tort reform” have a common goal … and it is pure politics.

Generally, labor unions have been stalwarts of support for the Democratic party. Also generally, the plaintiff’s personal injury and medical malpractice bar have been among the Democratic party’s strongest financial backers. There are exceptions to both situations, but overwhelmingly trial lawyers and unions are critical supporters of most Democratic candidates.

Tort reform and labor reform have an insidious common purpose-to break the financial back of the Democratic party. Look at the history of both efforts. You will rarely find Democratic support for these measures. Why? Because traditionally the Democratic party mission is to support the rights of working class people. That’s what labor unions do and that is what trial lawyers do to.

I’m proud to call myself a trial lawyer. I spend every day fighting for the rights of people who otherwise couldn’t afford an attorney. I was raised in a union household. I’ve walked a picket line with my father. I know what unions did for my family.

Make no mistake about it, labor “deform” and tort “deform” have the same purpose. And it is purely political.

California was one of the first states to institute caps on medical malpractice awards back in 1983. The limit is only $250,000 for non-economic damages. Well, recent reports in the Sacramento Business Journal reveal that the largest malpractice insurer in California is paying out less than 10% of what it collects in premiums to pay claims. It is spending far more to defend claims and even more goes directly to profit. Other insurers in California are paying out as little as 3% in claims. As a result, the insurance commissioner is requesting rate decreases.

This points out that caps do not result in reduced premiums for doctors–they result in higher profits for insurance companies. No surprise, since insurance companies are some of the biggest supporters of so-called “tort reform.” Why? Bigger profits.

We don’t need caps and other forms of “tort reform” in this country. What we need is insurance reform.

The Missouri Supreme Court has unanimously abolished the last vestiges of contributory negligence in the recently decided Children’s Wish Foundation International, Inc. v. Mayer Hoffman McCann, P.C.. So what is contributory negligence and why should you care?

First, what is it? In 1983 the Missouri Supreme Court adopted comparative fault. Under comparative fault a jury will decide the relative levels of fault of the various parties involved in any kind of negligence case. The issue arises most often in personal injury and medical malpractice cases. Take your basic auto accident case. In an intersectional accident, you may have one driver who failed to yield and the other driver may have been speeding. Both are at fault. Under comparative fault the jury decides how much each party is at fault. For example, if one driver is injured and the jury finds that he was 10% at fault, the jury would decide the value of that drivers injuries and then the judge would enter a judgment for 90% of the damages. The system is inherently fair and equitable.

Before Missouri adopted comparative fault it operated under the contributory negligence standard. Under contributory negligence if the injured driver was even 1% at fault, he could not recover anything for his injuries. An inherently unfair system. But as I said, it was abolished in 1983, right? Well, not entirely. And that leads to why it might matter to you.

In the intervening years, various appellate courts have determined that contributory negligence was still the standard in negligence cases that involve only monetary damages, as opposed to physical injuries. Mostly this was cases of legal malpractice and accounting malpractice. The result? Attorneys and accountants sued for malpractice have been able to show even slight negligence on the part of their clients and walk away without paying a dime for the damages they caused by their negligence.

Well, not anymore. The Children’s Wish Foundation case has clearly and finally abolished contributory negligence in Missouri. From now on a jury will be instructed to determine the relative fault of all parties in any negligence case.

And that is a good thing for all Missouri citizens.

Todd N. Hendrickson concentrates his practice in the areas of medical malpractice, personal injury, and legal malpractice. You can contact him by clicking here or calling 314-721-8833.

Congressman Phil Gingrey, Republican from Georgia, is again sponsoring a congressional bill to sharply cut malpractice awards. Interesting, since, as the New York Times reports on February 8, 2011, Congressman Gingrey has been sued for medical malpractice and his insurer has paid a settlement.

The details of the lawsuit are contained in the New York Times article, so no need to repeat them here. Suffice it to say that Congressman Gingrey is also Dr. Gingrey, an obstetrician. And this isn’t the first time he’s introduced bills to protect doctors at the expense of their injured patients.

The simple fact is that good doctors make mistakes and when they do, people die or are badly hurt. Medical malpractice is simply medical negligence. You wouldn’t restrict an award that could be entered against a trucking company that caused a death in an accident would you? If not, then why would you restrict the right for the victim of medical negligence to be fully compensated? The injuries aren’t any different. Death is still death. Whether the negligent person is a truck driver, an airplane pilot, a company that manufactured a deadly product, or a doctor, negligence is negligence.

And when the person introducing the bill is biased, you have to wonder. Don’t you?