Injuries, Lawsuits, and Obstacles

Suppose you are genuinely injured, and the responsible parties are unwilling to compensate you adequately.  What obstacles do you face when seeking justice through the court system?  (We will use the state of California as an example.)

Firstly, you must hire an attorney.  This is a gamble for the attorney; he/she must work and front the costs of the trial without guaranteed compensation.  To mitigate this risk, the attorney will take a substantial percentage of any amount recovered (approximately 40%).  In many cases, the costs of the trial are paid before recovery is handled.  As an example, suppose that your case retrieved $1M, and the costs were $100k (hiring of expert witnesses, depositions), then the total amount you’d receive would be 0.6 * ( $1M- 100k) = $540k.

You must hire your attorney quickly.  You generally have two years to file a lawsuit for an injury [1].  If your lawsuit is against a doctor, then you have one year [1].  And if it’s against a government entity, then you only have six months after your injury to file your claim [1].

If it’s a medical case, you will learn that non-economic damages in medical malpractice are capped.  For any pain and suffering you’ve experienced, for any limbs you’ve lost, for lost eyesight or lost hearing, or for all of the above, you will be compensated less than $250k [2,3] (an amount set in 1975 [4]).  So, for example, if your doctor cuts off the wrong leg by mistake, takes out a kidney that wasn’t bad, or just operates on the wrong patient (you) by mistake (all of which happen with disturbing frequency [5,6]), you will receive a maximum of $250k for non-economic damages.  In 2014, Proposition 46 attempted to lift this $250k limit to $1M and require Doctor’s to be tested for drug use regularly; it lost 33% to 67% [7].

You will have to decide whether or not to settle your claim.  You will be presented with long lists of numbers: how much money you would have earned through the rest of your life if you could have worked, and the monetary results of similar cases from the recent past.  During this time, you’re fully aware that you’re unable to work and earn a paycheck, and you have an ever increasing pile of bills at home.  And in the front of your mind is the fact that every jury across the US thinks of personal injury attorneys as “ambulance chasers” and of personal injury lawsuits as frivolous.  You are up against a huge bias, propagated by neighbors across America, doctors [8], and our politicians [9,10].  But, the insurance company is offering way too little.  So you decide to take the largest gamble of your life; you go to trial.

You’ve sat patiently through the trial.  You’ve been put on the stand and testified about the amount of pain you have.  You never felt comfortable complaining, but testimony is part of trial.  And then it comes to closing argument.  You’re sitting there waiting for your lawyer to say the obvious words to the jury, “Imagine if it were you.”  But you’ll never hear those words.  It’s against the rules of court for your lawyer to appeal to sympathy in that way [11].

Luckily, you win your trial.  The jury has recognized the level of incompetence that led to your pain, and has decided to award you a fairly large amount.  You breathe a huge sigh of relief; you and your family will be ok.  The jury is excused.  But then, something else happens; the judge starts talking.  He says words that you didn’t believe were possible; he’s retracting the award.  The judge decides that they awarded you too much; your pain and welfare are not that valuable.  He reduces your award dramatically.

Does that actually happen?  It does!  And the jury is never made aware of the reduction.  In a case where a woman was awarded $2.9M after 3rd degree burns resulting from an institution’s negligence (previously warned about the danger in writing multiple times) led to eight days of hospitalization, skin grafting, and two years of medical procedures; the trial judge reduced the verdict to $640k [12].  In another case, a trucker illegally parked on the side of the highway which led to a car wreck [13].  Four people were in the car; two children and their parents.  A bystander stopped to pull the two children out of the vehicle, but he couldn’t pull the parents out.  The car was on fire; the bystander tried to put it out with a fire extinguisher and with sand, but it didn’t work.  The bystander and the children watched the parents get burned alive; the trucker never left the cab of his truck to help.  The jury awarded the children $178M; $28M for monetary damages and $150M in punitive damages.  After the award, the judge granted a new trial, effectively negating the jury’s decision and starting the process from the beginning [14].

I would like to end this article with the words of an exceptional personal injury attorney, (my brother) Jonathan Dwork: “The insurance companies’ lobbyists and public relations people are so good that they’ve turned the victim into the bad guy.”

 

Disclaimer:  Jonathan Dwork is my brother.  Joel Dwork, another exceptional attorney, was my father.

[1]  https://twitter.com/jDworkAttorney/status/774661081591459840

[2]  https://en.wikipedia.org/wiki/Medical_Injury_Compensation_Reform_Act#Damage_cap

[3]  https://twitter.com/jDworkAttorney/status/818955037250437120

[4]  https://ww2.kqed.org/stateofhealth/2014/09/30/prop-46-was-inspired-by-tragic-accident-pits-doctors-against-lawyers/

[5]  http://www.telegraph.co.uk/news/worldnews/europe/austria/8059234/90-year-old-woman-has-wrong-leg-amputated.html

[6]  http://www.cnn.com/2010/HEALTH/10/18/health.surgery.mixups.common/

[7]  https://ballotpedia.org/California_Proposition_46,_Medical_Malpractice_Lawsuits_Cap_and_Drug_Testing_of_Doctors_(2014)

[8]  http://www.forbes.com/sites/stevecohen/2015/03/02/on-tort-reform-its-time-to-declare-victory-and-withdraw/#30db196717dc

[9]  http://www.nbcnews.com/id/6988023/ns/politics/t/bush-signs-limits-class-actions/

[10]  http://www.cnn.com/2003/ALLPOLITICS/01/16/bush.malpractice/

[11]  http://www.americanbar.org/content/newsletter/publications/gp_solo_magazine_home/gp_solo_magazine_index/conner.html

[12]  https://en.wikipedia.org/wiki/Liebeck_v._McDonald%27s_Restaurants

[13]  http://www.juryverdictalert.com/jury-verdicts/item/wrongful-death/young-girl-sues-for-wrongful-death-of-her-family-members-jury-awards-over-150-million-los-angeles-county

[14]  http://www.ehlinelaw.com/truck-accidents/150-million-reversal/

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