Will tort reform cure your aching insurance wallet!

No!  No!  No!  So why not - you say?  Let me tell you from a California injury attorney perspective why tort reform does nothing but take from you when you have a claim and increase not decrease wasteful litigation and claim delay.

First, we already have tort reform, and it does not work.  Let’s take a look at both of them. 

The California workers compensation system is simply broken.  It is a system designed as no fault, with administrative regulation of the healing and care of workers. Claimant lawyers play a very small and insignificant part of the compensation equation.  They only recover a fee of 10% to 15% if the worker has permanent injury.  You should therefore be of the opinion that the government, insurance companies and doctors could work together to get people the treatment they need and get them back to work quickly.  Again not so. 

A personal friend has waited 4 years for authorization to get much needed shoulder surgery.  Think that is unusual, wrong again.  Most attorneys in workers compensation, for both sides, say that the delay in treatment for serious procedures is at least 1 year and sometimes two.  Litigation has actually increased over the need for treatment.

Why is this happening?  Simple, there is no penalty if the insurance carrier and doctors rip off the injured.  Tort reform takes away penalties for wrongful and delaying tactics.  Administrators cannot act fast enough or quick enough to stop the rampant delays and fraud.    The system was supposed to pay for medical treatment needed by injured workers without lawyer involvement, but more litigation is occurring now to simply get the treatment needed.  If severe penalties were affixed for delaying tactics or improper bad faith conduct on the part of insurance companies, and doctors, punitive damages for instance, I assure you that the system would work better and in the long run work out to be fair and efficient.

Let’s talk medical malpractice.  Our office does not do worker’s compensation or medical malpractice so you are not getting a biased opinion here.  MICRA was enacted to eliminate punitive damage claims, cap pain and suffering at $250,000, limit attorney fees  and give doctors all the defenses of a short statute of limitations and low standard of care to be judged competent.  Ask any doctor and they will still complain that they practice defensive medicine.  Additionally, insurance companies go to trial more than any other segment because they know their loss is capped.  There is no incentive to settle so they risk a trial to see if they can avoid paying a judgment.  Over the years, premiums have gone higher in this segment than any other segment of insurance coverage.

If you allowed a jury to decide the pain and suffering damages for removing the wrong arm at surgery,  I assure you no cases would be occurring so haphazardly.  If the doctor faces personal bankruptcy for gross negligence, not just a mistake, then that doctor will act very cautiously WHICH IS WHAT THEY SHOULD BE DOING.  Medical malpractice claims have been increasing, not decreasing compared to 20 years ago, even though fees for attorneys were severely limited.  MICRA simply does not work.

The best system of deterrence is to make sure people know a consequence when they drive drunk, cheat another, commit gross negligence or knowingly make defective products.  The American system of justice is based on this economic premise, because in the years of greed and excess, very few stop to consider the consequences until severe injury occurs. 

One teen in Orange County pleaded last week for leniency for drunk driving that killed his friend.  He declared he was profoundly sorry, and did not realize what injury would likely occur.  Adult drivers know what will occur, but unless they are faced with an economic consequence of bad behavior they will continue to drive drunk, text, and drive recklessly.  It is no different with doctors or insurance companies.

James Ballidis is an attorney practicing in Newport Beach, California and specializes in personal injury claims throughout California.  Call us at 1 866 981-5596.