July 4th, Medical Malpractice, and the Bill of Rights

John Trumbull’s famous painting of the Declaration’s presentation hangs today in the Capitol Rotunda. It is collectively owned by the citizens of the United States.

A few days ago I wrote about an abomination of a bill that the House of Representatives narrowly passed, posing as tort “reform” in medical malpractice cases.

It wasn’t really “reform” (which implies improvement), but rather, a bill that seizes power from the states, grants protections and immunities to negligent people for their conduct that injures others, and foists much of the costs for those injuries out of the private sector and onto the wallets of the taxpayers.

But it did something else too, and I saved that for today. It also pissed on the Bill of Rights, specifically the Seventh Amendment.

Part of the law restricts pain and suffering awards to $250,000, and it also pushes many state actions into federal court.

The “problem” is the Seventh. It is a problem for those that want to seize federal power. Everyone else calls it a protection. Because that is what the Bill of Rights is, a list of protections.

For those that may have forgotten, the Seventh reads as follows:

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

So the Founders decided that any significant suit (with $20 being the arbitrary limit) shall have the right of trial by jury. Notice that there is arbitrary top limit?

Yet that is what a Republican majority of the House did — it imposed an arbitrary top limit that does not exist, thereby stripping away the constitutionally protected right to a trial by jury for the most seriously injured of people if this bill should become law.

That right to a jury trial goes way, way back to the Declaration of Independence for us. It is the reason that I refer to July 2nd as Jury Independence Day, because that is the day that the Declaration of Independence was voted on and passed by the Continental Congress. It was two days later, on the 4th, that the Declaration was signed, but John Adams thought that it was the second that would be the day “solemnized with Pomp and Parade, with Shows, Games, Sports, Guns, Bells, Bonfires, and Illuminations from one End of this Continent to the other from this Time forward forever more.”

I post on this subject each year, and the words that follow are an adaptation of those prior messages. And the Declaration of Independence is reproduced in full after that. I like to read it in full each year at this time.

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The Declaration has, as its heart and soul, a discussion of how King George III seized too many powers. And the colonists believed — and were willing to risk their lives for the principles — that power should more justly reside with the people.

And so you will see, as but one example of “the long train of abuses and usurpations” charged against the British King that forms the Declaration’s bill of particulars, this:

For depriving us in many cases, of the benefit of Trial by Jury:

And in the subsequent Bill of Rights, there are three separate places where rights to a jury are established: In the Seventh Amendment (for civil trials), the Sixth Amendment (for criminal trials) and the Fifth Amendment (grand juries for capital or infamous crimes).

It is clear that the Founders wanted powers related to both civil and criminal fact-finding to reside with the people, and not with any head of state that may be subject to whim, politics or the pressures of the moment.

This tug-of-war over how much power should reside with government and how much with the people exists to this day. Speaking broadly, it is the conservatives who want to see a smaller, less powerful government and liberals a bigger and stronger one.

But oddly enough those principles seem to fall by the wayside in the discussion of tort “reform.” When it comes to that, some conservatives, for reasons that have never been explained to me, want to give various governmental protections and immunities to others so that wrongdoers can’t be effectively hauled before the court for accountability.

This abandonment of principle happens in the pursuit of …what?  I can’t even finish the sentence as I still can’t fathom it, despite having written now on the subject for so many years.

To those conservatives that read this blog, I urge you to re-read our Declaration (and Bill of Rights) and ask yourselves why it is that, for this issue, principles of smaller and less powerful government have fallen by the wayside in favor of granting governmental protections and immunities.

And now, without further ado, Mr. Jefferson and his fellow congressmen:
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IN CONGRESS, JULY 4, 1776
The unanimous Declaration of the thirteen united States of America

When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security. — Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.

He has refused his Assent to Laws, the most wholesome and necessary for the public good.

He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.

He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.

He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their Public Records, for the sole purpose of fatiguing them into compliance with his measures.

He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.

He has refused for a long time, after such dissolutions, to cause others to be elected, whereby the Legislative Powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.

He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.

He has obstructed the Administration of Justice by refusing his Assent to Laws for establishing Judiciary Powers.

He has made Judges dependent on his Will alone for the tenure of their offices, and the amount and payment of their salaries.

He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people and eat out their substance.

He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.

He has affected to render the Military independent of and superior to the Civil Power.

He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:

For quartering large bodies of armed troops among us:

For protecting them, by a mock Trial from punishment for any Murders which they should commit on the Inhabitants of these States:

For cutting off our Trade with all parts of the world:

For imposing Taxes on us without our Consent:

For depriving us in many cases, of the benefit of Trial by Jury:

For transporting us beyond Seas to be tried for pretended offences:

For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies

For taking away our Charters, abolishing our most valuable Laws and altering fundamentally the Forms of our Governments:

For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.

He has abdicated Government here, by declaring us out of his Protection and waging War against us.

He has plundered our seas, ravaged our coasts, burnt our towns, and destroyed the lives of our people.

He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation, and tyranny, already begun with circumstances of Cruelty & Perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.

He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands.

He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.

In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince, whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.

Nor have We been wanting in attentions to our British brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends.

We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these united Colonies are, and of Right ought to be Free and Independent States, that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. — And for the support of this Declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our Lives, our Fortunes, and our sacred Honor.


July 4th, Medical Malpractice, and the Bill of Rights syndicated from http://personalinjuryattorneyphiladelph.tumblr.com/

GOP Surrenders Its Soul in Medical Malpractice Vote

Yes, a real case. Yes, the x-ray hangs in my office.

Yesterday the Republican Party gave up another piece of its soul when the House of Representatives voted to restrict the ability to bring medical malpractice cases nationwide. I wrote about this pending legislation back in March.

So let’s review some core conservative principles and see why I wrote that the party sold its soul:

First, the GOP claims to believe in states rights, and have been more than happy to hoist that banner to proclaim that the federal government should keep its nose out of state issues such as same-sex marriage. Local control is a big thing for conservatives. Huge.

By federalizing medical malpractice laws to slap an artificial, one-size-fits-all 250K cap on pain and suffering awards  — most clearly a statewide function — the GOP went 100% contrary to its conservative ideology.  This is the exact opposite of the limited government that the party claims to follow.

Second, the GOP likes to claim it is the party of personal responsibility, and never shies away from telling the downtrodden to pull themselves up by their own damn bootstraps. Here, the Republicans once again do a complete about face, and grant privileges and immunities to those that actually committed the wrongful acts. The GOP granting immunities for negligence? A 100% rejection of its own core philosophy.

Third, the GOP now saddles the public (and the injured) with costs that should be dealt with in the private sector. Serious injuries cause people to lose jobs and opportunities, saddles them with debts, and otherwise makes their lives miserable. They often will be forced onto public assistance and Medicaid.  Instead of the costs being paid by the tortfeasor, via their insurance policies, the costs would be paid with your tax dollars.  Kinda like socialism.

So there you have it, a complete abdication of conservative principles, in favor of a more powerful government with a socialistic policy of the taxpayer paying the costs caused by the doctors and hospitals.

This was called a “tort reform” bill. I would have called it the Big Government-Tortfeasors-Protection-Socialism-Act.


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Canada Claims Global Jurisdiction Over Internet

I know what you’re thinking, the title of this piece must be a joke, right?

But not according to news reports regarding a decision out of Canada’s Supreme Court.  Here’s the lede from the Toronto Star:

Google is barred from displaying anywhere in the world the websites of a company accused of counterfeiting a Canadian technology company’s products, the Supreme Court of Canada has ruled.

In a 7-2 ruling that has broad implications for freedom of expression, the reach of courts to protect intellectual property and other rights, and for the operations of Internet-based businesses, the country’s top court upheld a sweeping injunction against Google’s ability to display commercial content that was at the heart of a court battle.

The very brief background is a claim that Datalink Technologies Gateways ripped off the technology of Equustek Solutions by  relabeling it. A fight ensued, resulting in a Canadian order that Google delist Datalink websites.

That all being Canadian law, I offer no opinion, especially since there’s a much bigger fish to fry.

And that fish is a whale, as the Supreme Court of Canada apparently wrote (I don’t have the decision yet) that Google must delist Datalink not only in Canada, but worldwide.

Let that sink in. A government tells Google to delist worldwide.

The lawyers for the winner think they have a big win:

The ruling is the “first global de-indexing order” and will be “extremely important” worldwide, because it gives a remedy against “gatekeepers” of information such as Google, or Internet service providers, said McCarthy Tetreault lawyer Barry Sookman, who acted for several intervenors representing publishers of literary and musical content.

You know who else will think this is “extremely important”? Every tinpot dictator in the world.

I understand Turkey’s president, Recep Tayyip Erdoğan, often doesn’t like what people write about him. And Vladimir Putin is reputed to have killed journalists.

So ruthless, thin-skinned autocrats that have no free speech in their countries can order Google to delist articles worldwide.

Essentially, Putin could demand that the price of doing business in Russia is for Google to delist any articles in the New York Times and Washington Post dealing with its attempts to interfere with our election.

All he needs is a court order from the courts he controls claiming lèse-majesté — it being defamatory to offend the ruler. Truth is irrelevant.

Again, let that sink in. The price of doing business worldwide is allowing dictators to control what we see on our own screens.


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NY Leg Advances Change to “SUM” Legislation

The last two days I covered action in the New York Legislature to change the medical malpractice statute of limitations and make a modest change in where lawsuits can be brought (both of which still need the signature of the Governor).

Today, I cover a third piece of legislation, which while exceptionally important is virtually unknown to most. These posts come in a flurry because that’s how our Legislature works, passing bills  in a frenzy in the closing days of the annual January-June session.

This particular legislation refers to Supplementary Uninsured/Underinsured Motorist (SUM) insurance.

Stop!!! Don’t leave!!!  Trust me, while the issue sounds boring, it could be the difference between bankruptcy or not to anyone seriously injured.

In New York, we have particularly crappy minimum levels of insurance, known as 25/50 on non-commercial vehicles. That means that, if you are injured by someone with such minimal insurance, no matter how badly, the most you can obtain from that insurance policy is $25,000. (The 50 refers to the aggregate of all claims from the collision.)

But unbeknownst to most folks, there may be a second policy at play — your own — if you own a car. This is the SUM insurance if the car that plowed into you and broke your back has that minimal insurance.

Now here’s the catch, and the reason I write: The default on the SUM policies is a mere 25K. So even if you are a high earner, bringing home the family bacon, and have a $500K bodily injury policy of  your own, it won’t matter if you don’t read the fine print. Because that $500K is only to protect the person that you injure. It isn’t for yourself.

Yeah, it’s in the fine print. Most don’t know about it. Even one legislator I spoke to a couple of years ago was so unaware of it that, when her child was injured, was stuck with that minimal policy. She had no idea.

And, before I get to the legislative fix, one more point. That SUM policy only comes into play if your own policy is larger than the car that hit you. So, in other words, if the car that ran the light and clobbered you had a 25K policy, and you have a 25K SUM policy, you don’t get an extra 25K, because you would only be entitled to the difference between the two.

OK, now on to the fix. The New York Senate passed a bill (S5644A) in the waning hours of the legislative session to change the default from 25K SUM insurance for yourself to be the same as the amount of bodily injury coverage you have selected to protect others.

So if you have a 500K bodily injury policy, your default would be 500K SUM. You can, of course, decline it if you want. But most people who feel the need to buy insurance at higher levels aren’t the types of people who generally would decline.

This bill passed, as had the medical malpractice bill and the venue bill, with wide bipartisan support. And by wide I mean 62 out of 63 votes.

Unfortunately, the legislature adjourned for the session as the Senate passage came too late for the Assembly to vote. It will only come to the Assembly floor if they are called back into session, a possibility given that there is a large, unresolved issue of mayoral control of NYC schools.

Otherwise, it is wait till next year.

In the meantime, if you are renewing your auto policy, look for that part about SUM coverage and make sure you get as much as you can. It is, relatively speaking, dirt cheap, which is why your broker may not even bother to mention it to you.

 


NY Leg Advances Change to “SUM” Legislation syndicated from http://personalinjuryattorneyphiladelph.tumblr.com/

NY Legislature Amends Venue Law for Lawsuits

New York’s counties

As the New York Legislature raced to a close yesterday, I wrote about a change in the statute of limitations for medical malpractice cases.

But that wasn’t the only change that affects the personal injury field. There was also a change as to where lawsuits can be brought.

Currently, a lawsuit can generally be brought either in the county where the plaintiff resides, or the county where the defendant resides. Thus, if someone from Manhattan and someone from Suffolk were involved in an auto collision in Nassau — which sits between the two for you non-local readers — the plaintiff could choose either Manhattan or Suffolk as the venue for the lawsuit. But not the county in between where it actually happened.

But late yesterday both the Senate and the Assembly passed a bill to amend that to include also the place where that collision took place, adding the words in all caps to CPLR 501(a):

Except where otherwise prescribed by law, the place of trial shall be in the county in which one of the parties resided when it was commenced; THE COUNTY IN WHICH A SUBSTANTIAL PART OF THE EVENTS OR OMISSIONS GIVING RISE TO THE CLAIM OCCURRED; or, if none of the parties then resided in the state, in any county designated by the plaintiff. A party resident in more than one county shall be deemed a resident of each such county.


While this provides a bit more flexibility for the individual that chooses the forum, the practical application is that one may now bring suit where important eye witnesses are most likely located, thereby increasing the chance one will be able to get them into court for trial.

A good tool for the lawyer’s toolbox. The bill passed with very wide bipartisan support and now goes to the Governor for signature.


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NY Senate Passes “Lavern’s Law” — A Date of Discovery Law for Cancer Cases

A month ago I posted about New York’s need to pass “Lavern’s Law,” which extends the date of discovery in medical malpractice cases from the time the discovery of malpractice was made, or could reasonably have been made.

The problem, as I noted back then, was that some folks lost their rights due to our short statute of limitations — 2 ½ years for most cases and a mere 15 months against a municipality — before they even knew they had an undiagnosed cancer or other condition.

The Assembly had, in prior years, passed the bill. The obstruction was in the Senate.

A couple hours ago, though, the Senate passed the bill. Or at least a version of the bill.

While the original version related to discovering malpractice in general, the Senate version is restricted to undiagnosed cancers and other malignant tumors.

This is a victory for consumers no doubt, in that some of them won’t have the courthouse doors slammed in their faces before even being aware they had any rights to begin with.

The law is named for Lavern Wilkinson, who went to Kings County Hospital on February 2, 2010 with chest pain. A radiologist saw a suspicious mass on the x-ray. But Wilkinson wasn’t told.

When it was found again two years later when her complaints worsened, the 15-month statute of limitations had expired. As per the Daily News summary of the incident:

A chest X-ray found the cancer had spread to both lungs, her liver, brain and spine. The disease was now terminal.

She left behind family including an autistic daughter.

The bill had bipartisan support, and passed the Senate by a vote of 55 to 6.

Reconciliation with the Assembly is next, and assuming that happens, on to the Governor for signature.

The extension of the statute of limitations is not forever, of course. It starts to run from the date of discovery, and the time to start suit will end seven years later, even if the cancer is not discovered.

This is all very good for New York’s residents. Should they fall victim to malpractice, they have to worry less about being victimized a second time by an unjust civil justice system.


NY Senate Passes “Lavern’s Law” — A Date of Discovery Law for Cancer Cases syndicated from http://personalinjuryattorneyphiladelph.tumblr.com/

Better Insurance Options from Employers a Major Draw for Millennials

According to a new study, Millennials are more realistic and financially savvy than many give them credit for. The survey conducted by Anthem found that a full 35% of Millennials between 18 and 34 have turned down a job offer at least partially due to dissatisfaction with the insurance options from the employer. This compares to just 27% of respondents of all ages in the workforce.

Millennials are also far more likely than the previous generation to engage in long-term financial planning at 29% among Millennials compared to 19% of 35- to 54-year-olds.

While employers are all increasing their financial wellness offerings, Anthem says that they’re missing an opportunity by failing to improve their insurance offerings as well. A particular form of insurance that Anthem suggests for employers is disability insurance as these policies can benefit employers as well as employees. By integrating disability and medical benefits, Anthem says it can reduce benefits administration costs while helping employees return to work sooner.

Disability insurance offers the greatest benefit to employees, especially those who aren’t paid well and live paycheck to paycheck.

Among survey respondents who didn’t have disability insurance, more than half said it was because it wasn’t offered by their employer and 32% said it was just too expensive.

The post Better Insurance Options from Employers a Major Draw for Millennials appeared first on Philadelphia Disability Insurance Lawyer.

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