Recently in Tort Reform/Amnesty Category
The bill was approved just four days after lawmakers revealed an agreement with trial attorneys and patient advocacy groups who opposed civil justice changes that might block Oklahomans' access to the courts.Will this actually end the tort reform debate in Oklahoma?
The civil justice bill redefines what constitutes a frivolous lawsuit and strengthens summary judgment rules to make it easier for a judge to dismiss a lawsuit that has no merit before it goes to trial.
Some of the changes:
- Noneconomic damages are capped at $400,000 unless willful misconduct is proven in court. (There was a push for a "hard" cap of $300,000 which could not be removed).
- In cases where the judge and jury decide that noneconomic damages in excess of $400,000 are warranted, the additional money would be provided by a state-created indemnity fund. This begs the question: who's funding the additional damages?
- Concerning "bad actors" in the medical community - The bill prevents information from peer review proceedings from being discovered by a plaintiff in a lawsuit except in very limited circumstances.
- Class actions: Republicans dropped their attempt to make all parties to a class-action lawsuit opt in to participate. The civil justice bill sets specific guidelines for certifying a class and for determining attorney fees.
- The "certificate of merit" requirement is back for professional liability cases. The previous certificate of merit requirement only applied to medical malpractice cases (and was thus unconstitutional). This requirement now applies to other professionals.
- Joint and several responsibility: Allows a defendant who is more than 50 percent at fault to pay an additional portion of the damages.
He backs up his assertion with some relevant facts:
Oklahoma had 193 physicians per 100,000 people in 2003, according to American Medical Association statistics. By 2007 the ratio had grown to 200 per 100,000 people.
In 1998 Oklahoma had 6,412 physicians. By 2007 the number had grown to 7,245, an 11.5 percent increase.
One of Mr. Jurewitz's main points is that capping plaintiff's attorneys fees will prevent medical malpractice or personal injury victims their day in court. "I can personally tell you that the proposed cap would make it nearly impossible, if not completely impossible for some people with legitimate injury accident claims to find an attorney." His rationale is based on the fact that a lot of contingency fee clients choose that type of fee because an hourly rate is often unaffordable - something insurance companies can afford.
Another good point: "A contingency fee spreads the risk of failure from the client alone to both the client and his attorney." Plaintiff's attorneys, trial lawyers, personal injury lawyers (whatever you want to call us) only get paid when the client does.
Our OBA president's take on the proposed legislation:
The article also cites a survey of Oklahoma trial judges that found that 90 percent of judges believed there was no litigation crisis requiring legislative changes. The survey also found that there was no severe problem in Oklahoma with frivolous lawsuits.
"I call upon the Legislature to produce facts -- not myths or urban legends -- but proof of the necessity of the measures that have been introduced."
"Some of the supporters of this legislation know that Oklahoma does not have a tort crisis."
"Like they say where I'm from: 'That dog don't hunt."
The proposed bill requires Oklahoma plaintiffs (i.e. personal injury or medical malpractice victims) filing a professional negligence lawsuit to attach to the petition a "certificate of merit" affidavit. The affidavit is to attest that the lawsuit has been reviewed by a qualified expert and that the case does in fact have merit. The Oklahoma Supreme Court struck down a similar law in 2006 because it applied solely to medical professionals. The law was found unconstitutional because it singled out one kind of profession for special treatment. In addition, the Court "deemed the certificates of merit an unconstitutional barrier to the courts - obtaining such an opinion could cost as much as $12,000 and create other legal problems." [emphasis added]. The article also states an obvious truth:
Some cases are so obvious they don't require the testimony of an expert witness, yet expert testimony would be required under the law the court struck down.So why does Schwarz find it necessary to refile an identical bill?
All this does is drive up the cost of litigation and make it harder for Oklahoma plaintiffs to bring a lawsuit. Any half-brained lawyer won't bring a lawsuit that they think lacks merit - for the simple fact that they will lose time and money.
In his "Oklahoma shows no signs of needing corporate protection" article, Mr. Handley emphasizes:
- Accountability (or the lack thereof with wanting to push through tort reform)
- Right to Contract
- Keeping government out of people's lives
- Corporate Immunity
- Subsidizing business at the expense of wrongfully injured people
- Closing the courthouse door to most common people civilly wronged
Some great highlights:
This is particularly galling to me, as a lifelong Republican, because the philosophy that promotes this kind of legislation is anything but conservative. It's the "Government Should Control Everything," philosophy. Ronald Reagan never embraced that, and neither do I.The full article is accessible here.
In 2006, when the Tulsa World surveyed likely voters about the important issues facing Oklahoma, lawsuit reform was not among the top 20 issues raised. That's because it simply is not an issue, except to politicians who owe their election, their political existence and maybe their souls to Big Business and Big Insurance.
It's fun to bash lawyers, but your politicians aren't the reason you wear seat belts today, drive cars with gas tanks that don't explode, and work in an environment not contaminated by asbestos. Plaintiffs' attorneys did that. They've gone after big pharmaceutical companies who knowingly market dangerous drugs. That peanut company in Georgia doesn't fear the politicians, they already own them. They fear the plaintiffs' lawyers and what a jury of fair-minded citizens will do to them in court.
Mr. Kumpe points out some of the facts that the advertisements funded by large companies and insurance companies fail to mention. He recommends calling the proposed "tort reform" legislation "The Plaintiff's Are Guaranteed to Lose Act of 2000."
Note: I personally do not know Mr. Kumpe. He describe's his practice as "an emphasis on business transactions, small buiness entity formation, estate planning, probate and administrative law." He definitely can't be called an "ambulance chaser" with that description. He's not the typical advocate that fights for the rights of injured Oklahomans. He just appears to have a lot of common sense!
Mr. Kumpe goes on to describe the unconstitutional tort reform as constitutional blackmail that "heavily weigh[s] the scales of civil justice in favor of lenders, insurance companies and large business interest[s]."