It often takes a tragedy, such as the Amtrak derailment in Philadelphia, to wake Americans up to the cold, hard realities behind arbitrarily-imposed limits on money damages. Amtrak, a monopoly whose reputation for prior-century levels of safety precedes it, will never have to pay out more than $200 million dollars to victims of last week’s crash. This will result in gross unfairness, since, as CBS reports in its article, “[e]xperts predict the liability from the crash, which left eight people dead and more than 200 injured, would exceed the cap.”
The cap, which is nice for Amtrak, but disastrous for those injured or killed due to Amtrak’s safety lapses, was created in 1997, and has never been adjusted upward for inflation. CBS reports that had inflation been taken into account, the cap would be just under $300 million now.
Not only are victims of the derailment upset about the likelihood that they will never be fairly compensated for their injuries–some of which are life changing–but ordinary Americans are outraged, according to most news outlets. That’s a good thing, because when citizens learn about unfair laws that protect large corporations at the expense of victims of negligence and their needs, sometimes things change.
Unfortunately, victims of medical malpractice are also limited by caps on their recoveries, in more than half of our states. Forget, for a moment, that America’s largest bar association, the American Bar Association, has always maintained that such caps do not do anything toward solving the so-called “medical malpractice crisis” that increases malpractice premiums for doctors. The more insidious results of such caps are that: (a) they deprive victims of medical errors of their 7th Amendment right to a trial by jury, by removing from the jury its right to set appropriate damage amounts; and (b) they deprive severely injured victims of medical malpractice the compensation to which they are entitled, when dealing with pain and suffering for what will often be the remainder of their lives.
So, be outraged about the shabby way that the victims of Amtrak’s carelessness and disregard for safety are being treated. But please take a moment to also consider the plight of the thousands of victims of medical negligence who will never get their health back, and more insultingly, will never be properly compensated for the carelessness of the doctor or hospital that caused their injury.
I was happy with Mayor Bill de Blasio for a while. He brought a youthful, refreshing blast of liberal-themed common sense into the Mayor’s office, and was so forthright that he hurt himself politically. I’m referring to his acknowledgment that he had given his teenage son, Dante, “the talk,” warning him about the extra cautions that must be taken when the police approach you, if you appear to be a black young man, like Dante.
But today’s Wall Street Journal presents a different picture. In this article, which concerns the City’s annual budget, much of which focuses on law enforcement, we learn that the Mayor has set aside $3.2 million dollars for fighting “frivolous lawsuits against police officers.”
That’s an interesting statement, because law enforcement in NYC generally can certainly use help. We heard that from police officers turned off by Pat Lynch’s demand that the Mayor apologize to the police in the aftermath of the Black Lives Matter protests. Many said, in essence, “Forget an apology–we need new protective vests, radio cars, and increased man power.” Also, and unfortunately, NYC remains extraordinarily attractive to terrorists. And of course, New Yorkers have this thing about gathering in large numbers for demonstrations. So, yes, it is hard to deny that money should be budgeted for law enforcement here in New York.
But one thing that is not a significant problem, if it exists at all here, is “frivolous” lawsuits against police officers. Whether you want to call lawyers who bring such cases, as my firm does, greedy or sensible, the reality is that no local lawyer is going to take a meritless case against the NYPD, hoping that he will succeed in: (a) fooling the generally very competent Corporation Counsel lawyers who represent the City; (b) the streetwise jurors judging the evidence in the case; and (c) the generally experienced judge overseeing the litigation. Why not? Because we need to make a living, too. And we are not going to invest our money, which we will never see again if we lose, in a case that is not strong enough to make it through the gauntlet of scrutiny it will receive. All of which means that, while some incompetent jerk of a lawyer may decide to go ahead and waste his time and money on a suit he knows is garbage, he will not get anywhere with it. So the reality is, no one does it. There is no “jackpot justice” express just waiting for sleazy lawyers and their clients. That’s a myth created by the tort reformers–those who do not want to be accountable in a court of law when their actions hurt or kill people. Think of the big auto companies, tobacco companies, Big Pharma–the godfathers of this cynical movement.
So what is a bright guy like Mayor de Blasio doing spouting this anti-consumer claptrap? I’m going to go out on a limb here. I think he knows that “frivolous” lawsuits against the police are not a problem. Instead, that statement is part of his effort to repair his own relations with law enforcement, who may see the Mayor’s pledge as evidence that he is doing more to support his NYPD. Perhaps the Mayor sees this PR ploy as a necessity after Pat Lynch’s hysterical, shrieked accusations about police blood on Mayor de Blasio’s hands. But this empty promise about a non-existent problem is an insult to everyone else, and shows that Bill de Blasio has some unseemly political traits we were hoping he lacked.
It’s that time of year when my office gets reminders in the mail about what we must have posted and visible to all employees. They are entitled, by law, to be apprised of their rights if they hurt themselves here, or become too ill to work. That’s through Worker’s Compensation and through disability benefits. Posters in english and Spanish are prominently hung in our file room, providing helpful information in case the need arises. And that’s as it should be.
So if that is how New York State wants us to treat employees, you might think that it would have a similarly caring approach with consumers of medical care. You might think that there must be signs up in prominent places in hospitals and doctors’ offices advising patients of the help available to them if they aren’t treated properly—perhaps because they end up as victims of medical negligence–and you’ve just been missing them all these years.
But of course, you’d be wrong. There are no signs advising such patients that they can pursue a claim for medical malpractice, and that when the hospital fails to take the claim seriously, as is usually the case, they can get themselves a lawyer and take the hospital or doctor to court. There are no signs, in any language, letting patients know about the statutes of limitations, or time limits, so that by the time a family overwhelmed by the toll a medical error has taken gets around to considering a suit, it is often too late. And this is particularly true when a NYC Health and Hospitals facility is involved. Generally, if you don’t know enough to file your Notice of Claim with their office within 90 days of the malpractice, you’re prevented from pursuing your claim any further.
Not surprisingly, the victims who are cheated out of their day in court are usually those who can least afford to miss that opportunity. They are the poor, the immigrants, the day laborers, the speakers of languages other than english, the folks who are disenfranchised and at the margins of society, who have little to no idea about our system of civil justice, let alone how to access it.
I can’t tell you how tired I am of having to tell the people who contact me after time has run out that they are without recourse in our court system. Such a system is not only unfair. It is, frankly, un-American. It does not comport with the concept of a land of opportunity, where there is “justice for all.” It benefits only doctors, hospitals, and insurance companies, while it deprives patients who are often severely injured, through no fault of their own, of any opportunity to better their lives in the wake of medical malpractice. Are we really OK with a system in which the hospital and insurance industries count on the ignorance of consumers of medical care?