10202017Headline:

Oklahoma City, Oklahoma

HomeOklahomaOklahoma City

Email Guest Author
Guest Author
Guest Author
Contributor •

Oklahoma 2011 Lawsuit Reform – The Dividing Line Between the Establishment and Real Conservatives

5 comments

Reddirtreport.com has an eluquently written summation of what his happening at the Oklahoma Capitol regarding the impending corporate immunity bills being pressed by State Chamber Establishment Republicans. It states

A buzz is growing in Oklahoma political circles this week following Gov. Mary Fallin’s “State of the State” speech on Monday and her sudden calls for tort reform, an issue not emphasized during her 2010 gubernatorial campaign.

Fallin stated: “I’m also asking our legislators to work with me to get a lawsuit reform package signed into law, one that includes a hard cap of $250,000 for non-economic damages. We believe in justice for every Oklahoman. But we don’t believe in jackpot justice. And excessive awards for non-economic damages hurt businesses, destroy jobs and give a bad name to a legal system whose professionals are, for the most part, dedicated to ensuring fair outcomes for all parties.”

And taking up the charge in the Senate is Sen. Anthony Sykes who has already authored Senate Bill 863, which would allow injured parties to receive no more than $250,000 “regardless of the number of parties against whom the action is brought or the number of actions brought.”

Sykes has received a lot of heat for introducing this tort-reform bill, particularly among Tea Party conservatives like David Tackett and his Broken Arrow-based Oklahomans for Liberty.

I wanted to summarize these bills for our readers. I’m frankly appalled and angry at these so called conservatives so please forgive any grammatical and/or spelling errors as my fingers fling at the keyboard in frustration. Here is my summation.

Senate Bill 863 by Oklahoma Chamber Senator Anthony Sykes places hard caps on non economic damages at $250,000. In Oklahoma, current law already contemplates caps put they can be lifted where someone suffers permanent abnormality, disfigurement, loss of limb, impairment to body organ and/or a loss that has left them permanently unable to care and provide for themselves and perform life sustaining activities.

If you’re for equal rights and/or pro life you should be against this bill which places a hard cap and makes no exception for those grievously injured. It discriminates against kids and disvalues the life of the unborn. For example, one of the more significant injuries that can be inflicted upon women is harm to reproductive capacity. However, that type of injury does not impact her earning capacity or entitle her to recover economic damages despite the devastating emotional impact that such a loss may cause.

As a conservative, you have to ask yourself the following questions regarding these caps:

  1. If the constitution allows for common law suits and guarantees access to the courthouse without prejudice, how is it constitutional to arbitrarily place low limits on noneconomic damages.
  2. Would you be comfortable with Nancy Pelosi, Harry Reid and Obama deciding the amount a jury should award you if you were injured? In the same token what makes you think Fallin, Bingman, Steele and Sykes have the inherent knowledge to know what caps should be?
  3. Why $250,000.00 versus $400,000.00 versus $700,000.00 versus $1,000,000.00? If the purpose of caps is to guard against “jackpot justice” and “run away jury verdicts” then what is the purpose of setting the number so arbitrarily low?
  4. Who came up with the $250,000.00? *Hint* – It’s the Chamber crowd.
  5. If we can trust a jury to take end a man’s life in a criminal case, why can’t we trust them to award damages in a civil lawsuit?
  6. Where are the examples of outrageous verdicts in Oklahoma? You know these politicians would be flinging them before the news organizations as fast as they could if they were real. Plus, Senator Sykes in committee hearing was asked to provide proof of these verdicts and he could not.
  7. Why is the Establishment trying to push this through so fast without debate?

If you think caps are bad, wait till you understand Senate Bill 864 by Chamber Senator Sykes. This Bill abolishes what in legal terms is called the collateral source rule. In a lawsuit, Plaintiffs are never allowed to mention that a Defendant has insurance and conversely Defendants can never mention when a Plaintiff damages has been paid by a “collateral source”. If the above bill passes, an at-fault party will have the benefit of any collateral source a Plaintiff has purchased and paid premiums for. These sources will include life insurance, health insurance, disability insurance et. al. This bill will give a credit to the at-fault for any monies recovered under any collateral source, that is they will get to deduct those amounts from any judgment. This bill will also cost tax payers millions of dollars in loss reimbursements for medicaid.

An example of the devastating and unconservative effects of Senate Bill 864 would be where a drunk intoxicated semi driver from a company in Mexico traveling in the US pursuant to all the free trade agreements hits and kills your spouse. Your spouse had paid $500.00 per year the last 15 years to purchase a $1,000,000.00 life insurance policy. You file a lawsuit on behalf of your spouse seeking damages for his or her death. The jury returns a verdict for $1,000,001.00. How much money does your family get? $1.00. Your attorney loses the $100,000 he or she spent in costs prosecuting the trucking company and the attorney fee is 33 cents. You don’t get credit for the premiums you paid. The Mexican trucking company is left off the hook because you were a prudent citizen.

Under Senator Sykes Senate Bill 866 the insurance company would get to make periodic payments to you for any verdict in excess of $100,000.00. Plus guess who gets to keep the interest? Does the injured party get interest on his or money? No. The insurance company gets to keep that. Where is the personal responsibility? Isn’t this the utmost form of government interference in telling a citizen you are not responsible enough to get all your money so we will make a law where the at fault party keeps it. Further, what if the at fault party goes out of business or files bankruptcy? Guess what, you don’t get your money to help for your injuries leaving us tax payers to pick up the rest.

A great example of these laws would be a victim who was at the capitol for the committee hearing but wasn’t allowed to speak due to the tyrannical actions of Senator Sykes and Johnson. Fellow Republican trial lawyer Fletcher Handley was at the hearing with an old client whom he represented over 10 years ago when that client’s daughter, then 14, was terribly injured in a church van accident on I-35 near Norman while on the way to Falls Creek church camp. Of course Senator Sykes and Senator Johnson did not allow this person to speak (even though in the past constituents have always been allowed to speak).

Mr. Handley best describes the impact of these tort bills as it relays to his former client. This is his summation of the effects:

The bottom line is that if his former client were injured today, under these bills, the negligent party would get credit for her medical bills, because those were paid by her insurance company (SB 864). They would get credit for whatever she recovered in medical payments coverage or uninsured motorists coverage from her parents policies (SB 864). She couldn’t prove any future loss of income, because she wasn’t employed, but if she could prove future medical bills, the defendant’s insurance company could pay them out over time (SB 866). Even if she endured months and months of excruciating pain, due to scarring and skin grafts, with a lifetime of disfigurement and maybe the inability to conceive a child, the most she could recover would be $250,000 (SB 863) and if the party most responsible only had a $25,000 insurance policy, she couldn’t get the rest of that from the other responsible defendant or his insurance company. (SB 862) On top of that we’ll tell the jury this windfall is tax free (SB 864).

Please contact your Oklahoma State Senators and Represenatives and let them know you have had enough of these corporate welfare bills and if they don’t start adhering to the will of the people they will be replaced in the next election cycle. Self preservation is about the only thing they are willing to listen to aside from the huge donations they are recieving from big insurance and big business.

5 Comments

Have an opinion about this post? Please consider leaving a comment or subscribing to the feed to have future articles delivered to your feed reader.

  1. Mark Bello says:
    up arrow

    Great post Jeremy! Why does the public keep voting against its own best interests and for these tort reform clowns? This may be the worst looking tort reform bill I have ever seen. Whoever voted for Sykes in the last election ought to seriously consider impeachment or, at least, voting for his opponent in the next election; unless, of course, the “voter” is a multi-million dollar corporation.

    All any person has to do to learn about the gross unfairness of tort reform as it usually advanced (like the proposed Oklahoma bill) is to get seriously hurt and see how the ‘reformed’ justice system treats YOU. These tort reformers keep proposing low and arbitrary damages ‘caps’ to curtail ‘frivolous lawsuits’. Why would any ‘frivolous’ (by definition, ‘worthless’) case need a damages cap? It is not the frivolous cases they are after, folks, it is the serious cases, with serious, even catastrophic, injuries. If the corporation that caused the harm or insured the risk doesn’t pay appropriate compensation, we, the taxpayers, get the bill in public assistance. Is that what you want? Keep writing and exposing these charletons. Regards, Mark

  2. Larry says:
    up arrow

    The problem with the jury system in medical malpractice is simple.

    Attorneys know nothing about how medical care is delivered. They know nothing about how medical outcomes occur. And they for sure want the juries to know LESS than nothing about it.

    95% of all medical malpractice cases are frivolous. They are caused because the patient is pissed at an OUTCOME, and blames it on the nearest target with money – the doctor or the hospital. And then finds an ambulance chaser who knows that no matter what happens, he can settle for $50k for nuisance value, with no real risk of being sanctioned for bringing a completely frivolous
    suit.

    90% of the actual malpractice that occurs never gets prosecuted.

    And 75% of the time, in front of a jury, the doctor wins. But can he/she collect damages from the idiot patient and slimy lawyer who dragged their name through the mud? Nope. Not a chance. Does the plaintiff even have to pay for the costs of the doctor defending himself? Nope. Not a chance.

    When you start a fight and lose, you should pay. Loser pays rule would stop 90% of all frivolous malpractice suits. In the meantime, making filing a suit more costly, and making the lottery award to a lawyer less likely in the end, is a good start.

  3. up arrow

    Larry:

    Your derisive comments about “ambulance chasers” not notwithstanding, thank you for commenting on this post.

    In addressing your post I find a couple of things odd. First, you don’t address the substance of the post nor do you address the constitutionality and conservative issues presented. Further, you completely fail to address the bills as stated which would drastically alter not only medical malpractice but every lawsuit filed in a civil court in Oklahoma.

    Before I get to the substance of your argument I want to point out a couple of things. First, the laws presented do nothing to cut down on “frivolous lawsuits” which you suggest (and I disagree) is problematic in Oklahoma. Secondly, each law is designed to limit the amount a Plaintiff can get when a jury finds for them. Nothing in this legislation addresses frivolousness on the front end.

    Now to your arguments. You first allude to the fact that attorneys know nothing of care, outcomes or pretty much anything about the medical profession. You then insinuate juries are just as dumb. One of the first things an esteemed attorney once said is that the beautiful thing about being a lawyer is you get the opportunity to learn intimate details of other professions. For example, when an attorney prosecutes a medical malpractice case they spend tens of thousands of dollars to get doctors to educate both them and the jury as an expert. The truth is, while not remotely having the vast knowledge of a doctor, by the time a case is presented to a jury the lawyer is well versed on the alleged malpractice and relevant standards and options. Further, the jury is well versed. I for one don’t view jurors ignorant.

    Now you also cite a bunch of statistics out of thin air. I invite statistics but would rather they not be created out of thin air. Peer review statistics show a complete opposite picture from what you and the insurance/corporate lobby would like to create. In Oklahoma, we do not have a frivolous lawsuit problem. F or years the data has suggested just the opposite with the amount of doctors increasing and the number of doctors per capita among the highest in the United States.

    Even looking outside of Oklahoma the numbers once again prove you wrong. A study published by the Harvard School of Public Health consisting of close examination of the litigation results of 1452 medical malpractice lawsuits from five liability insurers debunks the myth that frivolous lawsuits are being filed at the rate and being paid at the rate you suggest. Even more interesting the study ‘s final conclusion is most telling: most individuals who have grounds to file a malpractice claim for medical negligence simply do not.

    Please take a look at the study. Other studies support the fact that very few frivolous cases are being file and juries usually get it right. In Oklahoma, most attorneys and those in the insurance industry agree that jurors usually err on the side of caution in favor of the Defendant.

    Once again, why are these laws being pushed? Its called corporate welfare and payback to the Establishment’s big political donors.

  4. Larry says:
    up arrow

    “The truth is, while not remotely having the vast knowledge of a doctor, by the time a case is presented to a jury the lawyer is well versed on the alleged malpractice and relevant standards and options. Further, the jury is well versed. I for one don’t view jurors ignorant. ”

    This encapsulates the view of lawyers in a nutshell. It is the equivalent of saying that I, after a few, (or a few dozen, or even a few hundred) hours of study, that I am well-versed on the history of law, its practice, and the relevant standards and options. That is the most idiotic comment I have read by a lawyer in a long, long, time. I have testified in dozens (yes, dozens) of medical malpractice cases. I have reviewed HUNDREDS of cases. My statistics are my own. Anecdotal. And true. Not one single attorney, ever, in any case I have ever been involved in, with the rare exception of an attorney who had practiced medicine for 20 years prior to his becoming a lawyer, had the slightest CLUE what the actual “standards and options” were at the beginning, during, or at the end of a malpractice case. None. They were as mis- and un-informed at the end of these cases as they were at the beginning.

    And I do view jurors as ignorant. They are not stupid, but they are ignorant. And that ignorance is what an attorney counts on, both as an attorney for the plaintiff and for the defense. I will guarantee you that you, as an ambulance-chaser, will reject any juror during voir dire who has any knowledge of the subject you wish to present, because in all likelihood he or she knows far more than you ever will about the subject, and thus is not subject to your theatrics.

    You sound like the typical actor, who just knows he could BE a doctor – after all, he plays one (in the courtroom) on TV.

    The vast majority of negative outcomes in medical care are just that, negative outcomes. The business of torts relies on a sinister, and wrong, theory of causality; that a “cause” can be identified for everything that occurs; that “blame” can be ascribed. Do the Salem witch trials give you any qualms about the use of “experts”? No, because you are in it for one reason, and one only – the money. You will not take a case with merit if it generates no money for you. There is nothing wrong with this, actually, but there is something wrong with the use of a flawed system to enrich yourself at the expense of others when you know that the case you take is BS. And you, and your fellow ambulance-chasers, do this ALL THE TIME. Furthermore, the system is skewed in favor of plaintiff’s attorneys, because they have no compunction against filing a BS case, since they KNOW it will cost them little more than a filing fee (which they frequently extract from the plaintiff anyway) and some time, if they find they have made a really stupid mistake and taken on a real stinker of a case. However, the person who they “started a fight with” can not make them pay for THEIR mistake (and, no, suing lawyers is not a option – you know that never happens).

    It is time the field was tilted back to a more level one. It is time that the ambulance-chasers lost some of their advantage. It worked for everybody (except the ambulance chasers) in Texas. It will also work in Oklahoma.

    It is about time.

  5. Gregory says:
    up arrow

    Hi!

    Like you, these bills seem wrong at their core and definitely unconstitutional. However,since, I do not know how the legal system works (and hope to God, I never have to go through this), I would like to understand the process better and the impact of these new laws.
    Let’s say someone’s kid is permenantly injured as a result of some major companies negligence. As a result, she is paralyzed from the waist down and will have to have care for the rest of her life. This person sues the company for $10 million plus the kids estimated medical expenses for the rest of the kids life (we will say 30 years @ $50K a year).
    Are you saying that the first number would be reduced to $250K less what they would get from their own insurer (accidental death & dismemberment)? A good general number for a dismemberment claim would be $50K. So, the reward would then be $200K?
    Also, what about the $50K/year? If the person had say a LTD insurance that paid $25K/year, would the award be reduced to $25K/year?
    Seems to me that the negligent party should be responsible for covering the complete cost. After all, THEY are the reason the kid is a quadraplegic to begin with aren’t they?
    I would just like to better understand this bill with some good concrete examples.
    For instance, you give one example where the jury awarded $1M and 1 dollars but, since the client would have insurance of his own that paid $1M then the plaintive would only pay $1. Is that even possible with the $250K cap?
    Either way, it seems to me that this is the way republicans operate. Since this will only affect a few people, they don’t mind running roughshot over their constitutional rights.
    Also, if it were my kid that this happened to, and, as in your example, the negligent party were only responsible for $1, someone, somewhere would end up paying, in some form or another!