Law Blog

I always like it when frivolous lawsuits are in the news.  This time they are at the center of the President Obama’s proposed health care plan.

The gist of it is that the current debate surrounding the new health care plan could be resolved if the Republicans get their way on medical malpractice lawsuit reform.  For those of you who might not know, the Republican Party has long held the view that frivolous lawsuits are a plague on modern American society.  In the case of medical malpractice, they essentially believe changing the ease in which claims can be brought against medical professionals and/or placing caps on what plaintiffs can receive in pain and suffering awards will lower medical malpractice insurance.  The logic here is that reducing the liability and financial risk of practicing medicine reduces malpractice insurance premiums which will then reduce the cost of health care for all us Americans.

In practice, however, it’s not that simple.

Now to all you out there on the internet who are still reading my various rantings, you’ll know that I’m not a fan of frivolous lawsuits in that I think they are, well, frivolous.  They clog up our judicial system with claims better suited for rulings from a clown court.  They often don’t need to be heard at all and are aimed only to make money.  You’ll all probably also notice by now that my politics fall in the center and I’m more an advocate for bi-partisanship, despite the fact that I generally loathe the frivolous lawsuit.  So it pains me to say that at the same time, I do realize the ease in which lawsuits can be filed can also serve as a great potential deterrence to the more corrupt in our society.  Most people looking to rip people off in an intricate business scheme would probably think twice, or at the very least further complicate their plan to rip people off, if they know that they could easily be held liable for their actions.

So what am I saying, you ask?  Well, basically that in this case there needs to be a better balancing of objectives.  While it may seem like a good compromise by making lawsuits hard to file against medical professionals, that also means it will be harder for all people to file lawsuits against medical professionals, regardless of the legitimacy of their claim.  Furthermore, putting a cap on pain and suffering award will most likely reduce medical malpractice insurance for doctors, which is great for doctors.  However, that doesn’t necessarily mean that those savings will be passed on to patients.  If you were suddenly freed from your car insurance premiums, would you give all that new disposable income to Oliver Twist and the rest of orphanage?  I would, but not everyone is a wonderful as I am.

The best course of action, I think, in this case would be a compromise from the Republicans.  As much as medical malpractice lawsuits need to be reformed, the sheer number of health needs that will be served by the passage of President Obama’s new health care plan greatly outweighs the follies of an overly litigious public.  The privatization of health care in some ways could be a factor in increasing frivolous lawsuits, as well.  People who can’t get the money for their surgery from their insurance company could theoretically try and go after their medical providers instead.  It may sound like a stretch to some, but hey, crazier things have happened.

Once again, I’ll get off my soapbox…

Autism is a bad thing. Most people agree on that. For parents of children with autism, the fact that its causes are not fully understood can add frustration to an already difficult situation.

The highest court in Maryland recently ruled that expert testimony suggesting a link between vaccines and autism cannot be admitted under the relevant legal standard because (1) the witnesses were not qualified to testify as experts on epidemiology, and (2) the principles that the experts relied upon are not widely accepted in the relevant scientific field.

This follows 3 rulings earlier this year by a special federal court set up specifically to handle lawsuits against vaccine manufacturers. In all 3 of those cases, the court found that the plaintiffs, even with a very relaxed standard of proof (preponderance of the evidence – essentially requiring only a showing that the evidence favors the plaintiffs by an iota), failed to demonstrate any link between vaccines and autism.

While the causes of autism are not well-understood, multiple studies have ruled out some proposed causes. Most notably, the overwhelming majority of scientific evidence favors a conclusion that vaccines do not, in any way, cause autism. This has not stopped some individuals from repeating claims about the supposed link between vaccines and autism.

While the causes of autism are the subject of ongoing scientific debate, the benefits of vaccines are not: without question, vaccines have benefited the public health more than almost any other medical invention or discovery. Diseases such as measles, mumps, and polio, which once killed thousands of people (mostly children) per year, are now a distant memory for most of the developed world. Smallpox, which ravaged human populations for thousands of years, has been completely eradicated. Because of the smallpox vaccine, and a well-coordinated, worldwide effort, there has not been a confirmed case of smallpox anywhere in the world since 1978.

This can all change, however, even if a relatively small number of parents, no matter how well-intentioned, decide to stop vaccinating their children. Besides the obvious risks to which they’ve exposed their own children, they are endangering other children, as well.

You see, there are a small percentage of children in every population who cannot be vaccinated, either because they are too young, or they have an allergy to the vaccine. They rely on the immunity of those around them to keep them from being infected. This is a principle called “herd immunity” – in short, if a large percentage of individuals in a population are immune to an infectious disease, those few who are not immune also enjoy some measure of protection, because the disease is unlikely to gain a foothold in the population, reducing the risk that susceptible individuals will be exposed to it. As the rate of immunization decreases, the risk to everyone increases.

There are signs, however, that the anti-vaccination movement represents only a vocal minority. According to LegalMatch case statistics, of all the prospective clients seeking redress for injuries caused by defective drugs or medical devices, none of them has recently claimed autism as their injury.

This is a good sign – frivolous lawsuits linking vaccines to autism (like all frivolous lawsuits), devalue legitimate claims. And there are occasions, rare as they may be, when vaccines do cause injuries – the particular batch could have been defectively manufactured, or the doctor could administer it negligently, causing an infection or other injuries. These injuries deserve redress, but the risks of such injuries do not outweigh the benefits of vaccination.

Yes, it is. The end.

OK, not really.

Frivolous lawsuits are bad. Just about everyone agrees on that, though there’s plenty of room for reasonable disagreement as to what makes a lawsuit frivolous. What we don’t hear about nearly as often are frivolous defenses.

According to the New York Personal Injury Law Blog a defendant in a personal injury lawsuit has sent a demand letter to a plaintiff’s attorney demanding that any reference to “pain” be deleted from the injuries claimed in a lawsuit because “pain is not an injury.”

While it’s true that physical pain is generally an effect of which physical trauma is the cause, the defendants here seem to forget that pain, in itself, can be debilitating. If humans were incapable of feeling physical pain, many injuries which we view as horribly debilitating would be quite trivial.

For example, if you step on a nail, you probably won’t be able to walk correctly for several weeks afterward, even if the wound were somehow guaranteed to heal properly, not become infected, and not cause any permanent damage. It’s the pain caused by such an injury which would make it debilitating.

Based on that, it’s absurd on its face to claim that pain is not an injury. Relatively “minor” injuries (minor in the sense that they have relatively little impact on a person’s overall health and lifespan) can cause severe, long-term pain, which impacts a person’s quality of life, and their ability to earn a living. From this, it seems absurd on its face to argue that pain is not an injury, in the legal sense. After all, tort law exists to compensate the victims of wrongdoing for injuries, and the “value” (really, the cost) of an injury is generally calculated through objectively observable facts, such as medical expenses, lost wages, etc. The cost of pain can, at least in part, be measured by a diminution in a person’s earning capacity, which is an objective measure.

Of course, we also award damages for “pain and suffering” in the abstract – and usually leave the decision of how much to award to a jury, which is the best course of action, as ordinary members of a community, especially those who might have experienced similar injuries, are in the best position to gauge what such an injury is worth.

According to statistics generated from LegalMatch case, of the tens of thousands of personal injury clients who came to the website over the past year, the overwhelming majority describe their injuries in terms of the pain they suffered, such as chronic back pain, neck pain, and headaches, as well as other difficult-to-quantify injuries such as insomnia and memory loss.

According to this defense attorney, have they not suffered any injuries?

Besides the pimply skin, awkward fitting clothes, and the occasional loud nonsensical mood swing, being a teenager is great.  It’s a carefree time where you feel invincible and the world is full of wonder.  The rare few years where the biggest worry in your life is what you’re going wear to the house party this weekend and whether or not one of the cooler seniors will be able to get their college-bound brother to buy everyone beer.  It’s a time of first kisses, long verbose soliloquies about love, and recognizing that the girl you like the most isn’t the popular cheerleader, but the tomboyish best friend living next door since you were kids.  Where the only music topping the charts are by Paula Cole and Pacey has yet to try and steal said tomboyish best friend from you…

Alright, I’m pretty sure I’m getting my realities confused here.  Amazingly melodratic teenage dramas aside, I think the only thing most of us remember about being a teenager, other than the bad skin, was that we didn’t have to shell out all our cash to pay off a giant pile of bills everyday.  Not me, of course, I worked and therefore lacked a proper childhood unlike all you middle to upper-class kids, you spoiled bunch of…umm… Anyway, my horrible traumas aside, from what everyone tells me, the best part of being a teenager was having a car.  A car meant freedom from your parents and the chance to go wherever you wanted to, and best of all the only costs you ever bore to keep it was the occasional tank of gas and washing it when it got dirty.

And then you got older.

Cars are expensive to keep.  With insurance, gas, and maintenance alone, the average cost of owning a car in America can cost you anywhere between $6,000 to over $10,000 a year.  Not to mention the price of the car itself.  Ha!  Who’s laughing now?  Suddenly a deprived childhood where you have to face the harsh realities of life when you’re 10 doesn’t seem so bad now, huh??  I’ve been prepared, yo.

But by far the worst and most expensive thing about owning a car is the inevitable accident.  The price to resolve one can be astronomical once you figure in not only the damage to the car, but the time you’ll waste negotiating with your insurance company, loss hours at work, and medical bills – not to mention the emotional toll.

The latest statistics from LegalMatch show that the avere medical costs associated with an automobile accident is well-over $100,000 and in some cases can even be in the millions depending on the severity of the injuries.  The average for lost wages is over $40,000, but a really bad accident can sometimes mean losing your ability to work.

So what does this all mean?  Well, I suppose it means that if you don’t happen to be fortunate enough to be born into the top ten percent of our society, one serious car accident can easily wipe you out.  Here are some tips on what to do if ever get into an accident.  And if those aren’t enough to calm your fraying nerves, don’t worry.  That’s why our society invented lawyers.  By far, the best way to resolve a car accident is with the assistance of an experience personal injury lawyer, get one who specializes in car accidents and you should be even better off.  Because remember, even though you probably can’t have mommy or daddy fix your mistakes anymore, you can always get a surrogate parent in the form of an attorney who you can cry your little eyes out to.

Huh?  What?  No, no, I’m not bitter at all.  Why do you ask?

Recently, a 10-year old boy named Seth Ireland died.  He was, allegedly, beaten to death by his mother’s boyfriend. The death occurred near Fresno, California, an area hard hit by unemployment and a down market economy. Increased financial stresses, are translating to increased incidents of child abuse.[1]  But, how do we protect our children?  We protect them through increased awareness and via support for those families going through hard economic times.

According to the U.S. Department of Health and Human Services (U.S.D.H.H.S.), during fiscal year 2007, an estimated 794,000 children were victims of child abuse or 10.6 children for every 1,000 children in the population nationally.[2]  Not surprisingly, during the past five years, over 3,500 customers have consulted LegalMatch in an effort to find an experienced personal injury attorney to help them bring suit against a child abuser.

Child abuse ranges from physical neglect (59%), physical abuse (10.8%), sexual abuse (7.6%), and psychological abuse (4.2%), to being medically neglected and multiple categories of neglect.[3]  While the majority of children abused were under age 11 (75%), 25% of children were age 11 to 17 and there was a near equal split of gender.  Slightly more female children (52%) were abused than male children (48%).[4]

But, just who are these perpetrators of child abuse? 

The majority of perpetrators of child abuse, according to U.S.D.H.H.S. were parents, step-parents or adopted parents, accounting for 86.5% of all child abusers.  While this may sound surprising, LegalMatch.com data bears this out (see Figure below) with about 62% of perpetrators reported as being “in the family.” 

The majority of family members reported are the biological parents; abusers are fathers and mother alike. This is no different than national data.[5]  Unlike national data, LegalMatch customers also report a high percentage of family friends or acquaintances (17%) being responsible for child abuse.   This is echoed in the story about Seth Ireland.  Despite movies like “Doubt,” priests/pastors, doctors and other professionals count among the smallest category of child abusers; but they still do count.  Moreover, there is no socio-economic level immune to child abuse.[6]

Makeup of Perpetrators of Child Abuse on LegalMatch.com

Victims of child abuse suffer life-long consequences from being substantially more likely to become abusers of drugs or alcohol than non-abused children, to suffering from depression and post-traumatic stress disorder to becoming perpetrators themselves.[7]  It takes considerable courage and a heavy emotional toll for the child-victim or the parent or guardian of the child to report abuse.  But, count on the toll being much heavier for all concerned if the abuse continues unspoken and unreported.  

To report child abuse, contact your state Department of Child Protective Services. LegalMatch can also help you find an experienced personal injury lawyer to assist you in bringing a private lawsuit against the individual being charged.  Or, if you, yourself, are being accused of child abuse, LegalMatch can help you find a seasoned criminal defense attorney to help. 

Related Links:

• Child Welfare Information Gateway
• Child Help National Abuse Hotline

[2] U.S. Dept. of Health & Human Services, Dept. of Children’s Services, Child Maltreatment 2007

[3] U.S. Dept. of Health & Human Services, Dept. of Children’s Services, Child Maltreatment 2007

[4] U.S. Dept. of Health & Human Services, Dept. of Children Services, Child Maltreatment

[5] U.S. Dept. of Health & Human Service, Dept. of Children Services, Child Maltreatment 2007

[6] Child Help National Abuse Hotline

[7] Child Help National Abuse Hotline