Wednesday, April 18, 2007

Tort Reform?

When will the supporters of "tort reform" provide a list of the Oklahoma specific "jackpot jury awards" cases, the "frivolous lawsuits" and the "unfair shakedown" cases they continually reference? Or is this just politics as usual?


Kyle Sweet said...

Your words reflect a misonception of Tort Reform. Everyone seems to be labouring under a belief that Tort Reform is a process ot restrict someones access to the courts, or, to keep down "out of control" jury verdicts. I am a long time democrat, helthcare defense lawyer and a firm believer in the rights of people to seek redress, unimpeded, to justice. However, currently we are not opering on a level playing field. Historically, 76 O.S. Section 19(b) protected the discovery process of maedical malpractice litigation by allowing healthcare providers complete access to all of a patient's past and future medical records when a patient sues a healthcare provider. The reasoning was sound: There are a multitude of causal factors involved in the determination of whether a healthcare provider breached a standard of care and caused an injury to a patient. In order to determine if that injury was actually caused by that alleged breach of the standard of care, it is necessary to have access to all of the medical records. Simply put, medical malpractce cases are far more complex causation wise, than is a traffic accident. In typical personal injury cases, Defendants are only allowed access to medical records and discovery over the body part that is being claimed injured. the standard has been all encompassing. However, that is changing.
Our legislature and our Supreme Court has recently strived to lessen the access a healthcare provider defendant has to a Plaintiff's medical records. Of cournse, the plaintiff lawyer can have all of teh records they want. But, there cases become less attractive when all of the patient's medical records are known and defenses are developed that the injury alleged may have been caused by something altogether different than what Plaintiff's counsel claims. Plaintiff's lawyers fight every day to limit the discovery healthcare lawyers can have about the medical conditions of the med-mal plaintiff. They want the deck stacked in their favor. Likewise, many healthcare providers want impediments to plaintiff's filing cases. But, a measured response to both sides is in order. Level the playing field by allowing access to the court's while allowing full disclosure discovery into the med-mal plaintiff's medical history and you may pacify both sides. In Oklahoma, we have a pretty fair jury system. There have been far more defense verdicts in cases than there have been wild plaintiff's verdicts. But, that is not really the point. There will always be victories to go around to all sides. Rather than spewing simplistic bumper sticker phrases at one another, it seems cooperating to achieve a common goal of access to the courts and a fair discovery process. thsi would represent a measured tort reform without grandstanding from either side. If you would ever be interested in getting both perspectives, I would be happy to discuss this issue further with you. Take care.

Kyle Sweet
Heron, Sweet, Fox & Trout, P.C.
The Oil Center
2601 N.W. Expressway, Suite 707W
Oklahoma City, OK 73112
(405) 608-0195

P.S. In the fall of 2006 there was an $18,000,000.00 verdict against OU Medical Center in a medical malpractice case in Oklahoma County. The injury was a head injury to an already brain injured infant. So, that is one just within the past 6 months. There was also a defense verdict for a hospital and a OB/GYN in Enid on a brain injured baby case last month.

Justinian Lane said...

Why would tort "reformers" use something as quaint as the truth when they have propaganda on their side? :)

Hugh M. Robert said...

I have personally asked many of the legislators this question...they cant answer it. I have asked what businesses have left the state or not come to the state due to the issues they raise, again, nothing. The fact is that they are interested in providing corporate immunity over protecting their constituents.

The data shows that only 1 in 10 cases in medical malpractice awards are won by the plaintiff...of those that the plaintiff actually wins, the majority of the time, if it is over the $300K mark, it involves permanent paralysis, blindness, or brain damage.

Also, the very bill being considered in the senate would limit defeciencies cited in nursing homes to be used to demonstrate a pattern of neglect or abuse...this means they can continue to abuse patients without the fear of punitive damages. I really wonder how these legislators sleep at night knowing they are chipping away the rights of their constituents.