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| Scott R. Marshall

I have spent the past 5 years in Sweden — yes, it is a heck of a commute from Stockholm to Tampa. When people in Sweden ask me what I do, I answer: “I am a trial lawyer.” The response: “Oh, yeah. Tobacco lawsuits, right?” They don’t understand how our system works. They ask why we need to have such lawsuits. Then I explain to them that we are not so fortunate — or unfortunate, depending on your perspective — as they are. We only provide health care to the old and the destitute, not everyone. We don’t have the same social welfare benefits. Nor do we have the same 57% tax bracket, thank God!

They can never understand how a country as wealthy as ours can allow its citizens to live under a bridge before the government will offer help. Well, as Eric Turkewitz puts it, the proponents of “tort reform” need to remember:

"We are faced with a choice as to whether we let parties duke things out privately or let the government come in with support. A nation can have one or the other. But what we can’t have, is both the stripping away of private rights at the same time that we have limited government support. That is not the model used by any industrialized nation that I know of."

Much of the debate about “tort reform” centers around the cost of personal injury claims and their lawsuits. Many people that are injured due to the negligence of others have no health insurance and no disability insurance. If we eliminate our tort system, who then pays? Well, in America, the injured pay first. Then, once they are completely broke and have no other assets, the cost of their medical care is shifted to the taxpayer via Medicaid.

In Sweden, the social welfare system works very well. The taxpayers support it both politically and with their wallets. As the forces of “tort reform” press harder and harder to limit a person’s ability to recover the cost of their medical care and lost wages from the individuals or businesses who caused their injuries, remember: ultimately the cost of these harms and losses will be borne by someone. Should it be the people responsible for the loss, or taxpayers?

If you say the taxpayers, then, as Turkewitz points out, if you eliminate tort claims, our system is untenable without the social welfare afforded to the citizens of the rest of the industrialized world:

"If we close the court house door on people by making it more difficult to proceed, then what happens to those already injured? Well, they absorb the costs themselves until they are poor enough for the minimal social service programs that we have and then the taxpayer picks up the tab. And they remain poor, having now been victimized first by the negligence of others and then again by being forced to bear the financial burden."

We simply cannot ask hardworking Americans to bear that burden without jumping on the 57% tax wagon. So, tort reformers: be careful what you wish for.

Choose wisely.


  1. Gravatar for jc

    I wish for a system where loser pays. If I win a lawsuit, I am made whole and my legal costs are paid by the losing party. I wish for a legal system where it does not take 5-10 years to get something tried in court---where the judge is not twisting your arm trying to get you to settle so he doesn't have to try the case. I wish for a place where the state Supreme Courts don't make up laws, but instead inforce the laws on the books.

  2. Gravatar for Scott Marshall
    Scott Marshall

    JC, a "loser pays" system can be fair in some instances (and in fact, many contracts have "prevailing party" clauses that call for exactly that), but if you read the Turkewitz blog I quoted, his point (and I agree) is that "loser pays" systems are grossly unfair when one side can afford to lose and pay, but the other cannot. As an example, let's say you have a disagreement with a corporation and that corporation sues you. You think you are right and will win, but you have a risk of losing. The Corporation spends more than 10 times your annual salary in legal fees that you will have to pay if you lose. This is frequently the circumstance in personal injury claims where you have a multi-billion dollar insurance company on the defense and you on the other. Maybe you personally can afford to pay $250,000 in legal fees if you lose, but most of America can't and it would bankrupt them. Even if you could afford it, it will certainly influence your decision on how or whether to fight for your rights. Understand that anytime you take a case in front of a jury, you CAN lose. There is almost always that risk. When losing will bankrupt you, you are in effect being deprived of the ability to fight for your rights. It is unfair when the other side knows this and uses this to avoid responsibility.

    Thanks for your comment!

  3. Gravatar for jc

    So what happens if the plaintiff files a frivolous suit, and tries to extort money out of the defendant? This happens with doctors all the time--where some patient has a serious medical condition, has a bad result--then blames the doctor who then has to go thru years of litigation to eventually win. Why not allow the doctor to countersue the patient and his attorney when the doctor is eventually found innocent?

  4. Gravatar for Scott Marshall
    Scott Marshall

    JC, see my post on "frivolous lawsuits" from last week.

    I don't know where you live, but in Florida, a lawsuit for medical malpractice MUST be filed with an affidavit from a physician within the same or similar expertise as the defendant (most states have a similar requirement), which states that the defendant violated the standard of care and committed "malpractice." With that requirement, it is virtually impossible to have a "frivolous" medical malpractice lawsuit in Florida. I understand that many patients feel like a bad result is the fault of the doctor, which is obviously not the standard for proving medical malpractice. Believe me, I am no fan of lawyers or lawsuits that allege malpractice where there is none. I have way too many friends who are physicians. :) Nevertheless, physicians typically have medical malpractice coverage, which usually covers the cost of their defense. If their insurance carrier wins the case for them, they are not out any money, and they or their insurance carrier have ways of making the plaintiff pay for their attorneys' fees and costs, even when the lawsuit WAS NOT frivolous and even may have been a very strong case. With the exception of the admitted liability case, which are too few to mention, these cases always come down to a battle of the experts. These days, most result in defense verdicts, meaning the plaintiff loses. This doesn't happen because the lawsuit was frivolous. This happens because juries do not want to punish doctors or hospitals unless the evidence is beyond a reasonable doubt, which is obviously not the standard in civil cases. The bottom line is that while questionable cases may make it to trial, frivolous ones never do and even the ones that should win sometimes lose, but that is a topic for a whole new blog post!

    Here is the link to my post on frivolous lawsuits:

    Thanks again for your comment!

  5. Gravatar for jc

    Scott- -I am a doc who has been victimized by frivolous malpractice suits. Yes, you have to have an affidavit of merit from a doctor to proceed. Yet, many plaintiff medical expert witnesses are frauds providing fraudulent testimony for an exorbinate fee. This partly explains the 80-85% defense verdicts at trial. These fraudulent medical experts get exposed during cross examination and the whole case blows up. The problem is that the doc has no legal recourse against the expert witness or the plaintiff attorney for putting on a frivolous malpractice case and dragging it out for years! So I disagree with your basic contention that because there is an affidavit of merit, it is legitimate malpractice case.

  6. Gravatar for Scott Marshall
    Scott Marshall

    JC, first, I am truly sorry if you have been unjustly sued. I have many friends who are physicians, and we discuss the issue of medical malpractice claims often, as you can imagine. Being a plaintiff or defendant in a case is no fun, and I don't envy you regardless of the situation.

    Obviously, physicians should never lie or commit fraud. Unfortunately, it happens on BOTH sides of the case. My experience is that many times physicians and hospitals lie or misstate the facts to avoid responsibility far more often than an expert lies or commits fraud in an affidavit. Regardless, both are wrong.

    An important point regarding my comments about "frivolous" lawsuits: a "frivolous" lawsuit is a lawsuit without a sound basis in law or fact. I am not saying that a case is "legitimate" if it has an expert affidavit; although, absent fraud or a flat out lie, I would assume it is "legitimate." I am saying that if a medical malpractice lawsuit is filed with an expert affidavit, by definition, it cannot be "frivolous." Whether or not it is meritorious or fraudulent is an entirely different question. This is the same as an argument about who ran the red light: somebody aint' tellin' the truth. That doesn't make it frivolous.

    If the problem is doctors filing fraudulent affidavits, then, as I have suggested to my physician friends on countless occasions, it is up to YOU GUYS as physicians to police your own and punish them. Certainly, if a physician files a "fraudulent" affidavit, they can be subject to sanctions by the court, but physicians need a mechanism for hanging such a doctor. If I, as a lawyer, sign an affidavit I know to be false, I can lose my license to practice law. I guess physicians can be as fraudulent as they want to be and keep their licenses? I hope not!

    Another point regarding MOST lawyers and how they evaluate medical malpractice cases: first, malpractice carriers will almost NEVER talk about settlement until after a lawsuit has been filed. Medical Malpractice lawsuits cost anywhere from $50,000 to $100,000 on the low end to take to trial. The plaintiff's attorney pays for that. If they lose, they eat it. Why would a plaintiff's attorney accept a case and invest $100,000 or more in it when they know they have an 80% or more chance of LOSING. They wouldn't. If they did, they would be bankrupt.

    I hear your point, but there are ways of hammering people who bring meritorious claims, yet lose. There are definitely ways of hammering people who bring frivolous or fraudulent claims, and they should be hammered.

    Thanks again for your comment!

  7. Gravatar for jc

    Scott: Never in the history of the USA has a fraudulent expert witness in a medical malpractice case been held liable for perjury. This is because, the "expert" can always say, it was my opinion. The way the court system is set up, if the plaintiff brings one expert medical witness in it does not matter how goofy his testimony is, the judge will let him testify. The defense gets one expert witness to counter the plaintiff - -and that is it! Judges will not exclude ridiculous medical testimony from a malpractice trial. As for judges sanctioning plaintiff attorneys - - that is extremely rare. I was once sued for 6 years for a typographical mistake on a report that had no impact on the patients outcome. I was not even responsible for the typo. After the judge threw the case out, he refused to sanction the plaintiff's attorney for this ridiculous suit. So sanctions hardly ever happen. Let doctors countersue plaintiff attorneys for frivolous litigation and let juries decide if damages are appropriate- -that will solve the problem immediately.

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