I’m getting tired with all the misinformation floating around Cable TV talk shows and the blogosphere about tort reform. Why does the conversation (or usually screaming) always start with the premise that we must limit people’s access to the justice system or protect wrong doers? Naturally this approach is favored by the insurance industry and their hired guns.

Instead, any tort reform should focus on patient safety and patient rights.

Proponents of limiting medical malpractice claims premise their arguments with the proposition that run-away juries are awarding millions of dollars for frivolous lawsuits which, in turn, is driving up health costs resulting in out of control insurance premiums. While you may be entitled to your own opinion, you’re not entitled to your own facts. I haven’t seen any credible evidence to support this dubious assertion that jury awards for frivolous medical malpractice lawsuits are driving up health care costs.

First, in Massachusetts at least, plaintiff verdicts in medical malpractice lawsuits are the exception, not the norm.

Second, before a medical malpractice case can even proceed through the Massachusetts court system, the plaintiff bringing the lawsuit must get a favorable ruling from a Medical Tribunal which is a three person panel comprised of a judge, lawyer and medical doctor of the same specialty as the defendant doctor. With few exceptions, the plaintiff’s case must be supported by a medical expert who will testify that the defendant doctor committed medical malpractice. If the Medical Tribunal rules in favor of the defendant doctor, the plaintiff must post a bond to cover the defendant’s court costs in the event that the plaintiff loses at trial.

Finally, the trial judge has the power, under certain circumstances, to reduce a jury award or throw it out entirely if the jury award is not supported by the evidence and the law.

Contrary to the proponents of “tort reform”, I do not see any evidence of run away jury awards in my law practice in Massachusetts. My experience is that the opposite is true. I see ample of evidence of jury bias which I attribute to a relentless media campaign of lies and half truths waged by the powerful insurance companies and their right wing flacks.

I’ll end with this. What if you or your child were seriously harmed by a doctor’s wrongdoing, should the courthouse doors be shut to you in order to save the multimillion dollar profits of insurance company executives? Isn’t everyone entitled to their day in court in America?

Copyright © 2009 John J. Sheehan

This is the first in what may be a series of posts to address myths, misconceptions and misinformation floating around the blogosphere and general public.

Tort Reform. Sounds nice. Reform is always positive. Who is against reform? Doesn’t reform represent progress, advancement, modernization. Doesn’t reform strike at the American heart?

What is Tort Reform? Proponents would say it’s restricting run away jury awards, limiting pain and suffering damages, eliminating frivolous lawsuits. Don’t be fooled by the insurance propaganda. Tort Reform is nothing more than having the federal government limit or eliminate the American citizens’ right to have their day in Court when they’ve been harmed due to another’s fault.

In order to build a groundswell in favor of reform, you need a scapegoat. An easy target. Something, someone or some group that will divert attention from the facts. After all, let’s not let the facts get in the way. John Adams famously said, “Facts are stubborn things.”

Who are the scapegoats of tort reform? The Trial Lawyers! Who do the trial lawyers represent? The little guy and gal who, but for the trial lawyers working on a contingency basis, would never have their day in court. Thomas Jefferson wrote that “All men are created equal”. Over the entrance of the US Supreme Court stands the inscription “Equal Justice Under Law.”

Well, as a proud trial lawyer practicing law in Massachusetts going on 16 years, I respectfully submit that trial lawyers put the equal in justice giving voice to the powerless against organized, powerful money interests, i.e. the insurance companies.

When you hear sophists preaching about the ideals of tort reform, ask yourself a simple questions. At whose cost? The answer is: YOUR COST. And remember one name among the many special money interests on the other side of this fight for equal justice under law: AIG. (Think big executive compensation and million dollar bonuses. Think government bailout. Think credit default swap.)

If it weren’t for trial lawyers fighting the good fight for ordinary people — your neighbors, family and loved ones — we wouldn’t have modern day, common sense safety advances that we all take for granted in our everyday lives like seatbelts, safe airbags, safety glass windshields, backup alarms on trucks, child proof medicine bottles, etc.

The shrill cry for Tort Reform is nothing more than a power grab by the special money interests to lock the door to the Court House preventing ordinary American citizens, who have been harmed due to another’s fault, from seeking equal justice under law.

Copyright © 2009 John J. Sheehan