News and Law for Non-lawyers

Why conservatives should hate NC "tort reform" in Senate Bill 33: A Tea Party primer

The North Carolina Legislature is considering passing a law which was written, largely, by multinational pharmaceutical corporations.  The Bill would make NC the worst state in the nation in terms of protecting its citizens from wrongdoers.

The legislators who have bought into the corporate lobbyist's money agenda in Senate Bill 33 would gladly sacrifice the liberty of the citizens at the throne of the new "King": international pharmaceutical corporations and insurance companies.

Constitution

This BOLD parts are from the "core values"  listed for the "Tea Party Patriots" and serve as an example of Tea Party values.  http://www.teapartypatriots.org/mission.aspx

Core Values of the Tea Party

  • Fiscal Responsibility
  • Constitutionally Limited Government
  • Free Markets

Fiscal Responsibility: Fiscal Responsibility by government honors and respects the freedom of the individual to spend the money that is the fruit of their own labor. A constitutionally limited government, designed to protect the blessings of liberty, must be fiscally responsible or it must subject its citizenry to high levels of taxation that unjustly restrict the liberty our Constitution was designed to protect. Such runaway deficit spending as we now see in Washington D.C. compels us to take action as the increasing national debt is a grave threat to our national sovereignty and the personal and economic liberty of future generations.

Why "tort reform" proposed by the NC legislature is contrary to these values:

Fiscal responsibility emanates from the individual and is embodied by the government which derives its existence from the will of the people.  "Tort reform" in the form of arbitrary caps on damages and immunity from certain forms of negligence by certain "classes" of individual (for example, immunity for negligent emergency room doctors) shifts the natural consequences of actions from the wrong doer to the government.  Individuals who do harm should be held personally responsible for the full extent of their harm and not shift financial responsibility to government entitlement programs.

"Tort reform" in the form of NC Senate Bill 33, simply redistributes the cost of individual harm from the wrong doer to the tax payer.  More specifically, by providing immunity to certain types of negligent physicians, when those physicians cause great harm to individuals, the harmed individual will eventually take tax dollars in the form of entitlement programs such as medicare, social security disability, and medicaid.  The harmed citizen will be a drain on our government and our taxes. 

Fiscal responsibility demands that the individual causing harm rely on their own resources and insurance converge in a robust free market- not the government to use tax dollars to bail out the negligent.

"Tort reform" is not fiscally responsible.

Constitutionally Limited Government: We, the members of The Tea Party Patriots, are inspired by our founding documents and regard the Constitution of the United States to be the supreme law of the land. We believe that it is possible to know the original intent of the government our founders set forth, and stand in support of that intent. Like the founders, we support states' rights for those powers not expressly stated in the Constitution. As the government is of the people, by the people and for the people, in all other matters we support the personal liberty of the individual, within the rule of law.



Why "tort reform" proposed by the NC legislature is contrary to these values:

There is no question that our founders believed in, and enshrined with the Constitution, the unalienable right to a jury trial for civil suits, which our Founding Fathers protected through the 7th Amendment to the Constitution after centuries of recognition in British law and Judeo-Christian writings.

Historically, the right to a trial by jury was the basis for "The Declaration of the Causes and Necessity of Taking Up Arms," which was a document issued to explain why the colonists had initiated armed conflict against Great Britain, and was written by John Dickinson of Virginia based on a draft by Thomas Jefferson.

Dickinson wrote in the Declaration, "Parliament was influenced to adopt the pernicious project, and assuming a new power over them, have in the course of eleven years, given such decisive specimens of the spirit and consequences attending this power, as to leave no doubt concerning the effects of acquiescence under it. They have undertaken to give and grant our money without our consent, though we have ever exercised an exclusive right to dispose of our own property; statutes have been passed for extending the jurisdiction of courts of admiralty and vice-admiralty beyond their ancient limits; for depriving us of the accustomed and inestimable privilege of trial by jury, in cases affecting both life and property..." -- Declaration of the Causes and Necessity of Taking Up Arms, enacted July 6, 1775 by the Second Continental Congress

The "tort reform" proposed by the North Carolina legislature fundamentally deprives citizens of the right to a trial by jury in several ways.  First, it grants blanket immunity from suit to certain classes of citizens, namely, emergency physicians and emergency room personnel, and corporate producers of pharmaceuticals (drugs).  The proposals say, quite plainly, that a citizen injured or killed by any of these privileged groups can not sue and have a jury determine the fairness of their claim.

The Constitution clearly guarantees the right to a trial by jury to all citizens in the 7th Amendment.

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.


John Adams wrote:

As the Constitution requires that the popular branch of the legislature should have an absolute check, so as to put a peremptory negative upon every act of the government, it requires that the common people, should have as complete a control, as decisive a negative, in every judgment of a court of judicature.

He also wrote, "Representative government and trial by jury are the heart and lungs of liberty.  Without them we have no other fortification against being ridden like horses, fleeced like sheep, worked like cattle and fed and clothed like swine and hounds."

Thomas Jefferson, the author of the Declaration of Independence and the third President of the United States, said, "I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution."

James Madison, the author of the Constitution and the fourth President of the United States, said, "Trial by jury in civil cases is as essential to secure the liberty of the people as any one of the pre-existent rights of nature."

"Tort reform" as proposed in SB33 and other bills curtails the natural right to trial by jury and should be opposed.

Free Markets: A free market is the economic consequence of personal liberty. The founders believed that personal and economic freedom were indivisible, as do we. Our current government's interference distorts the free market and inhibits the pursuit of individual and economic liberty. Therefore, we support a return to the free market principles on which this nation was founded and oppose government intervention into the operations of private business.

Why "tort reform" proposed by the NC legislature is contrary to these values:

A free market economy rewards entrepreneurs for their actions that benefit society.  The manufacturer who builds a superior product wins in the marketplace, and few would question that manufacturer's right to reap the rewards of its own ingenuity.  This is largely because the manufacturer has, in the effort to succeed, shouldered a risk of failure.  It is the marketplace, comprised of ordinary people, rather than the government, which determines whether the manufacturer wins or loses.

If the efficient production of material wealth is all that concerns us, then the marketplace needs no other rewards or penalties.  Most will agree, however, that manufacturers should be encouraged to create safe as well as efficient products, for the number of deaths and injuries annually caused by defective products is astronomical.  According to the 2003 Annual Report of the U.S. Consumer Product Safety Commission, there were 4,509 deaths and 13,690,526 injuries associated with just 15 categories of consumer products during that one-year reporting period.  Deaths and injuries caused annually by toxic pharmaceutical products also rival these numbers.

By making manufacturers liable to the people they have injured, the once-revered common law tort system creates an incentive for the manufacturer to build a safer product.  Those who advocate more government might suggest that safety can best be engineered from above, by governmental regulation, but true advocates of a free market will agree that it is better to permit the manufacturer to determine how to make its own product safe for consumer use, rather than some government bureaucrat.  In exchange for the right to determine the most efficient way to make its products safe, however, a manufacturer must be subject to suit for failure to perform this undertaking.

"Tort reform" as proposed by the NC legislature in SB33 relieves manufacturers of defective products and providers of negligent services from the natural free market consequences of their actions.  This creates imbalance in the market and also encourages an increase in governmental regulations.

The free market demands that consumers have a right to recoup their losses through the fundamental right of trial by jury.  This provides natural incentives for "good behavior" in the marketplace.

www.NicholsTrialLaw.com 1.800.906.5984

If NC House bill 542 passes, we will need some new welcome signs for NC

If North Carolina House bill 542 passes, and gives amnesty to corporations that kill people, we'll need to change the "welcome signs" on all of our interstate highways.

Some suggestions:

Danger zone deadly products ahead yellow large


1 in USA for Danerous and Defective Products

Extreme Caution Defective Products Ahead

Haven for Dangerous Legal Drugs Sign

Most Dangerous HB 542

If NC HB542 Passes

The House Select Committee on Tort Reform will be considering amendments to HB 542 at their next meeting on Thursday, April 7, 2011 at 11:00 AM. As of right now, there will be no more public input.  Those opposing this bill were allowed 8 minutes to speak on the amnesty provision. 

If your Representative is a member of the Select Committee on Tort Reform, now is the time to contact them and express your opposition for HB 542. The action you take today will have a great impact on the final outcome of this legislation.  If you don't want NC to be the most dangerous state in the nation, call now.

House Select Committee on Tort Reform District Raleigh
Chair Rep. Daniel F. McComas (R, New Hanover) 910-392-3011 919-733-5786        
Vice Chair Rep. Johnathan Rhyne, Jr. (R, Lincoln) 919-733-5782 919-733-5782
Vice Chair Rep. James W. Crawford, Jr. (D, Granville) 252-492-0185 919-733-5824
Vice Chair Rep. David R. Lewis (R, Harnett) 910-891-4848 919-715-3015
Vice Chair Rep. Tim D. Moffitt (R, Buncombe) 828-651-8550 919-715-3012
Vice Chair Rep. Tom Murry (R, Wake) 919-468-1213 919-733-5602
Rep. Jeff Barnhart (R, Cabarrus)   919-715-2009
Rep. William D. Brisson (D, Bladen) 910-862-7007 919-733-5772
Rep. Becky Carney (D, Mecklenburg) 704-332-1893 919-733-5827
Rep. Jerry C. Dockham (R, Davidson) 336-250-7336 919-715-2526
Rep. Nelson Dollar (R, Wake) 919-233-8399 919-715-0795
Rep. Bill Faison (D, Orange) 919-606-6700 919-715-3019
Rep. Mitch Gillespie (R, McDowell) 828-652-5548 919-733-5862
Rep. Larry D. Hall (D, Durham) 919-489-0036 919-733-5872
Rep. Dewey L. Hill (D, Columbus) 910-646-4297 919-733-5830
Rep. Chuck McGrady (R, Henderson) 828-696-0672 919-733-5956
Rep. Marian N. McLawhorn (D, Pitt) 252-524-3113 919-733-5757
Rep. Grey Mills (R, Iredell) 919-733-5741 919-733-5741
Rep. Bill Owens (D, Pasquotank) 252-335-0167 919-733-0010
Rep. Diane Parfitt (D, Cumberland) 910-864-2427 919-733-9892
Rep. Shirley B. Randleman (R, Wilkes) 336-921-2043 919-733-5935
Rep. Ruth Samuelson (R, Mecklenburg) 704-366-8748 919-715-3009
Rep. Paul Stam (R, Wake) 919-362-4835 919-733-2962
Rep. Jennifer Weiss (D, Wake) 919-678-1367

919-715-3010

 

www.NicholsTrialLaw.com 1.800.906.5984

North Carolina Legislature wants to give immunity from law suits to manufactures of deadly products that kill and maim people and destroy property

The North Carolina House is set to discuss a "tort reform" Bill tomorrow H542 (they have not "officially" released it but NC Trial Law Blog has an advanced copy you can see here:  Download Big Bill Tort Reform) that would grant immunity from suit to any product "regulated" by a State or Federal Agency.

UPDATE:  4:24 pm March 30, 2011:  The Bill has finally been filed, all of 18 hours before it is to be debated.  House Bill 542

Here is the relevant language: 

No manufacturer or seller shall be held liable in any product liability action if:

1. The product alleged to have caused harm was designed, manufactured, packaged, labeled, sold, or represented in relevant and material respects in accordance with the terms of approval, license or similar determination of a government agency, where the approval, license or similar determination is relevant to the event or risk allegedly causing the harm; or

2. The product was in compliance with a statute of this State or the United States, ...where the stature or agency action is relevant to the event or risk allegedly causing harm....

This is HUGE.

This means that a product regulated by ANY state or Federal agency would be immune from suit by North Carolina citizens who are hurt or maimed by the product which is eventually found defective.

Think:  bad tires, bad cars, Vioxx, bad drugs, toys containing lead or poison, etc.

Here is a "short" list of products whose manufacturers would be immune from a law suit if that product killed you or hurt you or someone you love.

Manufacturers of 328 Types of Products regulated and approved by the US Agencies will receive IMMUNITY from law suits for defective products that maim, kill and destroy property and people.

The manufactures of defective products would receive immunity from suit because the agency is "vested with the authority of this State or of the United States to issue rules, regulations, orders, or standards, concerning the design, manufacture, packaging, labeling, or advertising of a product or a service." Tort Reform for Citizens and Businesses: Section 3.1(b) amendment to Chapter 99B-1 (1a)

 

US Consumer Product Safety Commission (USCPSC) Regulated Products

 

Acetaminophen (products containing)

Acetic acid (products containing)

Adhesives -containing methyl alcohol

Adhesives -extremely flammable contact

Adhesives -floor covering

Adhesives nitrocellulose base

Aerosols (see self-pressurized products)

Ammonia, ammonia water (products containing) household, ammonium hydroxide

Antennas – CB base station and TV

Antennas -Omnidirectional CB base station

Antifreeze, ethylene glycol

Antiquing kits

Appliances, coal and wood-burning

Architectural glazing materials

Art Materials

Artist's paints

Asbestos- containing patching compounds

Asbestos -containing garments for general use

Aspirin products

Baby bouncers & walkers

Baby playing with toy

Balloons, plastic mixtures

Batteries, storage, wet-cell

Benzene paint solvents containing

Bicycles

Bicycle helmets

Biological specimens, preserved

Blasting caps

Bunk Beds

Butane in cigarette lighters

Carbolic acid (phenol) (products containing)

Carbon tetrachloride (products containing)

Carpets and rugs (large)

Carpets and rugs (small)

Caustic poisons (products containing)

Caustic poisons – potash (products containing)

Caustic poisons – soda (products containing)

Cellulose insulation

Cellulose sponges

Charcoal briquettes

Chemistry sets

Child-resistant packaging (see special packaging)

Chlorofluorocarbons, self pressurized products containing Acetonitrile (see glue remover)

Aluminized polyester film kite

Asbestos -containing artificial emberizing materials

Benzene (products containing) benzol

Bergamot oil (products containing)

Betamethasone (products containing)

Children's Products (see "Toys/Children's Products")

Cigarette lighters

Cleaning products

Clothing (see wearing apparel, sleepwear)

Coal burning appliances (see appliances)

Combustible hazardous substances

Conjugated estrogen tablets (products containing)

Consumer product

Containers consumer-owned (portable)

Controlled drugs (products containing)

Corrosive substances (products containing)

Cosmetics

Cribs -full size

Cribs -non-full size

Cribrecall2010-370

Cushions, infant

Cyanide salts (products containing)

Dietary supplements, iron-containing (products containing)

Disclaimer deceptive use of

Dive Sticks

Drain cleaners, liquid

Drugs, Oral Prescription -All Exceptions

Drugs -controlled

Drugs -iron containing

Drugs -oral prescription

Vioxx

Drugs -over the counter

Dry-cleaning solvents

Epoxy resins

Ethylene glycol (products containing)

Ethylene glycol in felt pads

Exports (noncomplying products)

Extremely flammable contents of self-pressurized containers

Extremely flammable hazardous substances

Extremely flammable solids

Eye irritants (products containing)

Fabrics

Felt-tip marking devices

Cholestyramine, anhydrous (products containing)

Clacker balls

Colestipol (products containing)

Dibucaine (products containing)

Diethylene glycol (products containing)

Diethylenetriamine (products containing)

Diglycidyl ethers (products containing)

Diphenhydramine preparations

Emberizing materials artificial, containing asbestos

Erythromycin ethylsuccinate, Suspension & granules

for suspension (products containing)

Erythromycin ethylsuccinate, tablets (products containing)

Ethanol containing mouthwash

Ethylenediamine (products containing)

Ferrous oxalate (products containing)

Fire extinguishers

Fireworks

First Aid

Flammable contents of self-pressurized containers

Flammable solids (products containing)

Flammable substances (products containing)

Fluoride (products containing)

Food

Formaldehyde (products containing)

Fuel

Furniture painted with lead containing paint

Furniture polish -liquid

Furniture polish -paste

Garage Door Openers- automatic residential

Gasoline

Glazing compounds

Heaters (see appliances)

Highly toxic substances (products containing)

Household substances

Hydrocarbons

Hydrochloric acid (products containing)

Ibuprofen (products containing)

Imported products & importers

Imports

Industrial supplies

Infant cushions

Ink cartridges dry concentrate containers

Ink-marking devices

Insulation, cellulose

Iron preparations

Irritant substances

Kerosene

Kindling & illuminating preparations

Labels

Laboratory chemicals (if educational)

Lacquers

Lawn darts

Lawnmowers power

Fertilizersdry

granular

Fuel kits with diflouro dichloromethane

Glue remover containing acetonitrile (household)

Hartshorn (products containing)

Hypochlorous acid (products containing)

Isobutane in cigarette lighters

Isosorbide dinitrate -prescription sublingual and chewable forms (products containing)

Ketoprofen (products containing)

Kites aluminized polyester film

Lead in paint (products containing)

Lighter fluid, etc. (products containing)

Lunar caustic (silver nitrate) (products containing)

Lye (products containing)

Matchbooks

Matches

Mattresses (cigarette ignition)

Mattresses (open flame ignition)

Methyl alcohol (methanol) (products containing)

Mineral oil in toys (products containing)

Mineral seal oil (products containing)

Mineral spirits (products containing)

Minoxidil (products containing)

Mirrors

Mixtures of hazardous substances

Mouthwash containing ethanol

Multiple hazard substances with

Multipurpose Lighters

Lighter

Naphtha (products containing)

Neutralizers, Permanent Wave (see Permanent Wave Neutralizers)

Nitric acid (products containing)

Nitroglycerine prescription (products containing)

Oral contraceptives

Orris root powdered (products containing)

Over-the-Counter (OTC) Drugs (see Drugs, Over the Counter)

Oxalic acid and salts (products containing)

Packages, child resistance (see child-resistant packaging)

Packages, sample

Paint (lead in) (products containing)

Paint solvents

Painting kits

Paper items

Patching compounds containing asbestos

Percussion explosives

Lidocaine (products containing)

Loperamide (products containing)

Mebendazole (products containing)

Medroxyprogesterone acetate tablets (products containing)

Methacrylic acid (products containing)

Methylprednisolone (products containing)

Methyl salicylate (products containing)

Naproxen (products containing)

Nitrites (Butyl and Volatile Alkyl)

Norethindrone acetate tablets (products containing)

Pacifiers (see Toys/Children's Products)

Pancrelipase (products containing)

Paraphenylenediamine (products containing)

Perchloroethylene in visual novelty devices

Petroleum distillates

Photographic color processing kits

Plant foods -dry granular

Poisons, caustic (products containing)

Polishing products

Potassium hydroxide

Prescription Drugs (Oral)

Pressure-generating substances

Propellant devices for model rockets

Radiator cleaners

Radioactive substances

Refrigerator doors

Refuse bins -unstable

Roof coatings

Rope, cord, string, etc.

Rugs see Carpets

Rubber vulcanizing products

Self-pressurized products

Self-pressurized products containing vinyl chloride

Sensitizers (products containing)

Signal words

Sodium hydroxide

Solder kit

Solder paste

Permanent wave neutralizers containing sodium bromate or potassium bromate

Phenol (carbolic acid)

Photodynamic sensitizer

Potash, caustic

Potassium supplements effervescent

(products containing)

Prednisone

Primary irritant

Sacrosidase (sucrase) in a solution of glycerol and water

Salt (sodium chloride)

Self-pressurized products containing chloroflorocarbons

Silver nitrate (lunar caustic)

Sleepwear, children's, sizes 0-6x & sizes 7-14

Sodium arsenite

Sodium fluoride

Sodium/potassium hydroxide

Special packaging

Spot removers single-use

Spot removing kits

Sponges, cellulose

Swimming pool slides

Tank coatings

Thread, string, twine, etc.

Turpentine (products containing)

Varnish

Video games

Vienna paste (products containing)

Vinyl chloride (products containing)

Solvents (for Paint and other surface coatings)

Stoddard solvent

Stoves, coal & wood burning

Strong sensitizers

Sulfuric acid

Toluene (toluol)

Toxic substances

Toys/Children's Products- All

Toys/Children's Products- choking hazard warnings for small parts, balloons, marbles, balls

Toys/Children's Products- balls, small

Toys/Children's Products- caps & toy guns producing, impulse-type sound

Toys/Children's Products- choking incidents

Toys/Children's Products- clacker balls

Toys/Children's Products- electrically-operated toys and children's article

Toys/Children's Products- games, self-pressurized -hollow plastic toys games

Toys/Children's Products- marbles

Toys/Children's Products- mineral oil

Toys/Children's Products- painted with lead or containing lead

Toys/Children's Products- pacifiers

Toys/Children's Products -rattles

Toys/Children's Products -sharp edges

Toys/Children's Products -sharp points

Toys/Children's Products -small parts

Choking-hazard-label

Toys/Children's Products -model rockets

Toys/Children's Products -model rockets, propellant

Toys/Children's Products -train smoke

Toys/Children's Products -use and abuse tests

Toys/Children's Products -tubes, collapsible metal (labeling)

Toys/Children's Products -unpackaged hazardous substances (labeling)

Vinyl plastic film

Walker-jumper

Wax containers

Waxes, paste for autos, furniture, floors and shoes

Wearing apparel

Writing instruments

Visual novelty devices -containing perchloroethylene

Volatile flammable materials

Water-repellent mixtures (masonry)

Wood burning appliances

Xylene (xylol)

 

Federal Drug Administration (FDA) PRODUCTS

 

Food safety

Rotten-meat-in-slices-thumb17104917

Tobacco products

Dietary supplements

Prescription and over-the-counter pharmaceutical Drugs

Vaccines

Biopharmaceuticals

Blood transfusions

Blood-transfusion-infections

Gene therapy

Cell and tissue based products

Medical devices

Electromagnetic radiation emitting devices (ERED)

cellular phones

airport baggage screening equipment

television receivers

microwave ovens

tanning booths

laser products

Veterinary products

Cosmetics

 

Sanitation requirements on interstate travel

Control of disease on products

Sperm donation for assisted reproduction

 

United States Department of Agriculture (USDA) Regulated Products

 

Meat

Poultry

Chicken-broiler-01

Egg products

   

National Highway Traffic Safety Administration (NHTSA) Regulated Products

 

Vehicle safety

Vehicle recalls

Child safety seats

Toyota_rav4_tilt_seat

Airbags

Airbags_story_landscape

Safe auto parts

Tire safety

Bad tire

Steering components

Fuel system components

Accelerator controls

Wheels that crack or break

Cracked wheel

Engine cooling fan blades that break

Windshield wiper assemblies that fail

Seats and/or seat backs that fail

Critical vehicle components that break

Wiring system problems that result in a fire

Img-vehicle-fire

Car ramps or jacks that may collapse

Air bags that deploy incorrectly

Child safety seats that contain defective safety belts

   

Child ejection
___________________________________________________________________

HIGH COSTS TO STATES

No other state in the Nation has a law like this.  The only state that is close is Michigan, which has a provision that deals only with immunity for Drug Manufacturers who receive FDA approval.  Other states have had lesser versions of this bill but none had given complete immunity.  This is an interesting history of "FDA defense" bills:  http://www.centerjd.org/archives/studies/MIDrugImmunityF.pdf

As a result of Michigan's "FDA Law", the State of Michigan lost $82 MIllion dollars in "refunds" from the manufacturer of Vioxx who was accused of falsifying safety records to the FDA.

One of the reasons Michigan passed the law in 1995 was to attempt to keep Merck and Pfizer as empoloyers in the state.  Michigan passed the law and Merck left anyhow.   also In 2007, Pfizer announced plans to completely close the Ann Arbor, Nagoya and Amboise Research facilities by the end of 2008, eliminating 2,160 jobs and idling the $300-million dollar Michigan facility.


Can North Carolina afford to give a pass on the safety of all of these items?

Vioxx cost Michigan $82 million in additional Medicaid costs.  Michigan can’t recover those damages from Merck because of the "FDA defense." If this bill is enacted, NC Medicaid and NC taxpayers will also be left holding the bag.  The Michigan Court of Appeals affirmed this "defense" on March 11, 2011.

These questions need to be asked: 

WHY DOES THE LEGISLATURE WANT TO MAKE NC THE DUMPING GROUND FOR DANGEROUS AND DEFECTIVE PRODUCTS, WITHOUT CREATING A SINGLE JOB? 

WHY WOULD THE LEGISLATURE LEGALIZE THE SALE OF DANGEROUS DRUGS?

HOW DID NC GET THIS PROPOSED LAW?

How did this "law" get to North Carolina?  It got here from ALEC, the "American Legislative Exchange Counsel" a libertarian and conservative think tank funded by big industry with their goal of protecting corporate interests from any safety regulation.

Who funds ALEC?  If you go to the link you will find a long list of manufacturers, drug makers, industrial polluters, and other "mega corporations".


WHAT CAN I DO??    IF YOU DON'T THINK THIS IS A GOOD IDEA FOR  NC, PLEASE CONTACT ANY MEMBER OF THE HOUSE SELECT COMMITEE ON TORT REFORM:

You can find them at NC House Select Committee on Tort Reform.   Or here:  http://www.ncga.state.nc.us/gascripts/Committees/Committees.asp?sAction=ViewCommittee&sActionDetails=House%20Select_127

Send them an email or a letter.  Or give them a call.  They meet tomorrow (Thursday, March 31) at 11 am.  Act now, before it is too late.

Chris Nichols

 

www.NicholsTrialLaw.com 1.800.906.5984

How some lawyer lobbyists are posing as "the people" in order to take away the right to a trial by jury for those maimed or killed by a small group of bad doctors: The birth of "astro-turf" organization "North Carolinians for Affordable Health Care"

OK folks, hold on to your hats (does anyone wear hats these days?) it is time for a trip down an Orwellian rabbit hole (to mix some metaphors) into political intrigue, lawyers, lobbyists, and a organization posing as "we, the people."  No, it's not a national political party, its a North Carolina effort to take away the Constitutional right of trial by jury if you, or someone you love, is maimed or killed by a simple, preventable, mistake.

As these things go, we lawyers know that the best way to get to the bottom of things is to "follow the money" and that's what this post is all about.

And of course, what I'm talking about is the very recent creation of a "grass roots" effort to change the the laws of medical malpractice in North Carolina.  That "grass roots" organization stealthily sprung to life on March 10, 2011, as a non-profit organization called "North Carolinians for Affordable Health Care, Inc."

What follows is the story of the "birth of an astro-turf" organization.  And if you are not familiar with that term, let me give you my definition.  We've all heard of "grass roots" organizations, right?  They start out with regular people who have a concern about something.  Those people organize and get the word out and suddenly they create a movement which gains momentum.  And when that movement gets big enough, these regular people get a "voice" on the public stage with the politicians and large corporations that can simply "buy" access to government with lobbyists.  Well, "astro-turf" is the opposite of that.  An "astro-turf" organization is something created by a corporation or a lobbyist to appear to be "of the people" when it is, in fact, just a shill by "the man"- some corporate interest that wants to pose as "the people."

As you read this rather lengthy post, you'll get to see how a small group of politically connected lawyers created an "astro-turf" organization to persuade politicians and the public to take away the rights or regular people to bring a claim against an insurance company and hospital when that hospital makes a mistake that injures, maims, or kills someone they love.

3/10/2011 Articles of incorporation for North Carolinians for Affordable Health Care (NCFAHC) is filed.

  Articles of Incorporation

It is, of course, a Section 501(c)(4) Corporation. 

The name and address of the incorporator is R. Donavon Munford, Jr.,

P. O. Box 2611, Raleigh, NC 27602-2611.

Munford Signature

 Reference: NC Secretary of State Filings

 

North Carolinians for Affordable Health Care is incorporated by a Republican former member of the NC General Assembly who is a partner in the Smith Anderson Law Firm

 

Munford Webpage
R. Donovan "Don" Munford was a Republican member of the North Carolina General Assembly representing the state's thirty-fourth House district, including constituents in Wake County from 2002. Munford is a lawyer and accountant from Raleigh, North Carolina.

Munford ran for re-election to the North Carolina House of Representatives in the 2004 General Assembly election. He defeated J.H. Ross in the Republican primary, but lost to Democrat Grier Martin in the November 2004 general election.

 He is a partner at Smith Anderson, the largest law firm in the Raleigh area. He practices in the areas of corporate and business law, estate planning and asset protection planning. Munford is also a licensed Certified Public Accountant. (Reference: Munford Wikipedia Entry)

 

Smith Anderson Law Firm is a leading Medical Malpractice Insurance Defense law firm and also a government lobbying law firm.

  Smith Anderson Med Mal page

Best Lawyers 1 for med mal

 

 

Smith Anderson Law Firm registered the website for NCFAHC.

  Whois Registration for NCFAHC


Reference: WhoIS Registration link

 

Smith Anderson Law Firm has a longstanding relationship with the North Carolina Medical Society and lobbies for them before the General Assembly.

  Davis Horne Website profile

  Horne job description website


Horne NC Medical Society Smith Anderson Website

 

The North Carolina Medical Society is lobbying for immunity from negligence for Emergency Rooms in NC.

Medical Society Web page tort reform

 

About NCMS web grab

 

3/16/2011 NCFAHC releases a commercial falsely alleging that North Carolina is experiencing "frivolous lawsuits" which increase taxes and insurance costs.

It's not fair video grab



 

FOLLOW THE MONEY

 

Are "North Carolinians" demanding immunity for negligent Emergency Rooms and physicians, or is a small group of lawyers, lobbyists, and physicians looking to walk away from their responsibility to the injured, maimed, and killed?

Can anyone explain how making Emergency Rooms immune from claims or lawsuits for "negligence" furthers the Medical Society's stated purpose to"raise the standards for their profession" and "protect the quality of patient care?"

North Carolina Senate Bill 33 (SB33) does exactly the opposite.  SB 33 changes the rules for any medical person in the Emergency Room and eliminates responsibility for "negligence".  This does not "raise the standard" for the profession, but in fact drastically lowers the standard

So how does this "protect the quality of patient care?"  Well, what happens when you say "you can no longer be held financially accountable for the consequences of sloppy work, negligent work, or breaking and ignoring the established rules in all other Emergency Rooms in the state of North Carolina?"

Does taking accountability away from Doctors, Nurses and Hospitals somehow make people more responsible?  Or does it make them act "less responsible?"


How about this?  What would happen if we eliminated all speed limits in North Carolina, and just told people not to drive "grossly fast"?  Would our roads be safer, or less safe?

Bottom line, the NC Medical Society, through their lawyers and lobbyists are "posing" as you, the people, in an effort to take away your right to hold a small group of bad doctors accountable.

And of course, where do the ACTUAL people stand on this issue?

 

Statwide poll shows opposition to immunity for ER docs

Please write your elected House member a note and tell them to oppose this Bill.


Here is how to look them up:  Who Represents Me?

(Scroll down to the bottom and look up by your Zip code)

 

 

 

 

 

 

 

 

 

www.NicholsTrialLaw.com 1.800.906.5984

Medical Malpractice "reform" proposed in NC: Do it yourself tort reform release

The new GOP majority Senate in the General Assembly of North Carolina has just introduced the "wish list" of Medical Malpractice Tort Reform bills today.   Senate Sponsors:  Tom Apodaca(R), Tom Brown(R) and Bob Rucho(R).

This proposed Senate Bill S33 is a laundry list of of ways to limit the rights of normal citizens in NC.  While physicians may THINK this proposed Bill will help them, in reality, the bill is a giant GIFT to the insurance industry because it simply reduces the amounts of money insurance companies might have to pay in legitimate claims.  Or put another way, it  limits the recovery of individuals whom a jury have determined are truly injured by medical negligence.

Here is a quick rundown on the Bill and my comments on the reality of the provisions.

EMERGENCY MEDICAL CARE- If your emergency room doctor commits negligence, you can't sue them. You can only sue if they are GROSSLY negligent, like, if they were drunk. So, when the ER doc gives your spouse an injection of penicillin, even though her medical chart says she is severely allergic to it, and she dies- too bad.  Gross negligence is a very high standard in North Carolina.

BIFURCATION OF TRIALS ON ISSUES OF LIABILITY AND DAMAGES in any case over $75,000.

This means that in any case with a value of over $75,000 (which is almost every medical malpractice case out there) you essentially have two trials.  The first part is on the question of negligence.  Did the doctor make a mistake.  The second part is on the damages.  Sounds tempting and simple but the real reason behind this is two fold.  First, it makes trials longer and more costly for the injured party.  Many witnesses who could testify once, now have to testify twice.  Experts are very expensive, sometimes $5,000 per day.  Insurance Companies have nearly unlimited resources to bring in experts.  Injured people do not.  Second, by keeping out the damages, the jury does not have any idea how badly the mistake has affected the injured person. This "depersonalizes" the case which is an advantage to the Defendant.

LIMITING THE AMOUNT OF NONECONOMIC DAMAGES THAT MAY BE AWARDED ($250,000 cap on damages) As used in this section, 'noneconomic damages' means damages to compensate for pain, suffering, emotional distress, loss of consortium, inconvenience, physical impairment, disfigurement, and any other nonpecuniary, compensatory damage. So if your child is burned on 90% of their body in a negligent surgical fire, they get about $3,000 a year for life.  And of course, this cap on damages ONLY affects people who have a legitimate case, i.e., some one whom a jury has just determined is injured as a result of negligence.  This cap also disproportionately effects retired people who do not have future lost earnings.  And of course, this means insurance companies can get off cheap, even if a jury thinks a higher amount is warranted.

BY AUTHORIZING THE PERIODIC PAYMENT OF FUTURE ECONOMIC DAMAGES IN LIEU OF A LUMP-SUM PAYMENT.  Basically, this is in there because if the person who is awarded damages by a jury dies later, their family will not inherit the money. It will go back to the insurance company.

MODIFYING APPEAL BONDS IN MEDICAL MALPRACTICE ACTIONS. This just makes it cheaper for insurance companies to appeal when they lose.

If approved, this act becomes effective October 1, 2011. (Better go to the doctor now.)

When "tort reform" was being debated on the Federal level, I produced a mock "Do It Yourself Tort Reform Release" which tried to demonstrate the reality of what the law makers were proposing.  It got picked up by some national press and "went viral," in as much as something about the law goes viral.

So, if you just can't wait for Medical Malpractice "tort reform", just download this handy form, sign it, and take it to your next doctor's appointment.

I was hoping I would never have to resurrect this link, but here it is:  Download Do It Yourself Medical Malpractice Tort Reform Release 2011

 

Do it Yourself Medical Malpractice Tort Reform Release

 

 

 

www.NicholsTrialLaw.com 1.800.906.5984

Judicial Endorsements and Down Ticket Races in North Carolina

Well, we are at less than 30  6 days  10 hours to election time and it is time for my annual Judicial Endorsements post (and a few other races you may not know much about).

NC elects all of our Judges, we do not have an appointment system or retention elections.  This is a great system in the sense that there is very little "inside politics" going on, but it is also a not-so-great system because most citizens have virtually no idea who the judicial candidates are, OR what "qualifies" someone to be a good Judge.

So I am setting out below who I endorse this election.  My criteria for endorsement is that the Judicial candidates must be experienced, show judicial demeanor, be impartial, and be fundamentally connected to the preservation of individual constitutional rights and consumer rights. 

CLICK HERE FOR A PRINTABLE GUIDE in PDF formatDownload 2008_voting_guide_1.pdf

NC STATEWIDE JUDICIAL ENDORSEMENTS
NC SUPREME COURT

Suzanne Reynolds – Supreme Court (Edmunds seat)  www.suzannereynolds.org

Professor Reynolds (as I have always known her) is a family law professor (and my ethics law professor) at Wake Forest University School of Law.  She is one of the foremost experts in Family Law in this state.  She's been a professor for 27 years.  Family Law expertise is vitally important to our High Court because behind most family law questions are real people needing real justice.   

Kristin Ruth – Court of Appeals (Tyson seat) www.judgeruth.com

Sam J. Ervin, IV – Court of Appeals (Tyson seat) www.ervinforcourtofappeals.com

So this endorsement is a tie.  Both candidates listed above are highly qualified and either would make an excellent addition to the Supreme Court.

North Carolina Court of Appeals

Jim Wynn – Court of Appeals  www.judgewynn.com

Judge Wynn is the incumbent and consistently writes well reasoned and well balanced opinions.  He's a Navy veteran, he's been talked about as a Federal Judge, and he's endorsed by EVERY major newspaper in NC.  This race is a no brainer.

Cheri Beasley – Court of Appeals (McCullough seat)  www.judgecheribeasley.com

Linda Stephens – Court of Appeals  www.judgelinda.org

Judge Stephens is the incumbent.  She's been on the COA for years and has shown herself to be insightful and well balanced in her opinions.  She's well liked by almost all lawyers who appear before her.  Keep Linda Stephens.

John Arrowood – Court of Appeals  www.judgearrowood.com

John Martin – Court of Appeals (unopposed)

"DOWN TICKET" Candidates 

I usually confine my endorsements to the Judicial Elections, but this year I'm going to make a few recommendations for the "down ticket" races.  While these races are partisan, most of us don't have a lot of contact in our daily lives with the issues controlled by the down ticket races.  As a lawyer, my life and my client's lives can be deeply changed by the rules and regulations promulgated by these positions.  If you vote straight ticket, you need to read these.

Roy Cooper – Attorney General  www.roycooper.com

Roy Cooper is the incumbent.  He's consistently been willing to intervene in "hot topics" and do "the right thing".  Example:  Cooper's office stepped into the highly politicized Duke Lacrosse case and cleared the players of wrongdoing.  He's provided good leadership to our Attorney General office and has been a strong advocate for consumer protection laws, cracking down on bad mortgage lenders, unfair "pay day" lenders, and fraudulent car sales.  He has a particularly strong record of pursuing "identity theft" operations.

Janet Cowell – State Treasurer  www.janetcowell.com

Janet is usually well qualified for this job.  A Wharton School of business graduate, she can certainly keep our state retirement funds safely invested during troubling economic times.

Elaine Marshall – Secretary of State   www.elainemarshall.org

Elaine Marshall is simply wonderful.  She has automated and computerized all of the corporate records in North Carlina, saving businesses and lawyers millions of dollars in lost time because we don't have to manually record and search for records of incorporation.  Her office is responsive and helpful.  She well liked by both parties and should remain in her office.

Wayne Goodwin – Insurance Commissioner   www.waynegoodwin.org

In my mind, this is the MOST IMPORTANT downticket race this year.  Not many people know this, but North Carolina enjoys very low insurance rates because we are one of very few states where the Commissioner of Insurance has final authority to set rates.  In other words, insurance companies MUST request rate increases from the Commissioner of Insurance and must prove why they deserve a rate hike.  Our long time incumbent Commissioner Jim Long has a long record of refusing unnecessary rate hikes, and as a result consumers and businesses have saved an incredible amount of money on insurance premiums.  Wayne Goodman is a lawyer, a consumer advocate, and has been Jim Long's "right hand man" for many years.  We can count on him to keep the Insurance Commissioner's office as an advocate for the people of North Carolina.   

Goodwin also pledges, like his boss,Long did, to fight any effort by Blue Cross Blue Shield of N.C. to convert from nonprofit to for-profit status, as well as to use the very limited powers available to his office to hold BCBS to its historic public-interest role in health care.  Goodwin's opponent, by accounts a nice guy, was a long time Democrat turned Republican who has no experience in insurance regulation.

Mary Fant Donnan – Labor Commissioner  http://www.maryfantdonnan.com

The NC Labor Commissioner is responsible for a few more things than just inspecting elevators.  One of the more powerful duties is overseeing all OSHA investigations in North Carolina.  OSHA, in essence, keeps the workplace safe, and the enforcement of OSHA laws sometimes means life or death to workers.  Under our current commissioner, the labor department has been decidedly "pro-business" which translates roughly as "anti-worker."  Donnan served as director of research and policy for the Labor Department under former Commissioner Harry Payne, one of the most capable labor commissioners the state has had. She is well-prepared to enact reforms in the Labor Department.  The Charlotte Observer has good piece on why our current Labor Commissioner should be replaced:  LINK TO OBSERVER ARTICLE

Beth Wood – State Auditor  www.bethwoodcampaign.com

The State Auditor keeps our government honest with our tax dollars.  The current Auditor has used his position to wage many political wars and is currently locked in a battle with the Governor's Ethics Commission.  The Auditor should truly run along non-partisan lines, and Beth Wood seems the perfect fit for the job.  She has been a Certified Public Accountant for 20 years and served in the State Auditor's Office for more than a decade under two different administrations. 

Ronnie Ansley – Agriculture Commissioner www.ansley4ag.com

Ansley received a bachelor’s degree in Agriculture Education from North Carolina State, a Master’s degree in Agriculture Education from Clemson, and a law degree from Mississippi College School of Law. He is presently serving as the National President of the Future Farmers of America Alumni Association.

He advocates that we must invest in renewable-sustainable green energy sources for fuel production.

For the animal lovers out there, you might be interested to know that the Ag Commissioner is responsible for setting the euthanasia standards for animals in North Carolina. 

The winner of the race for NC Commissioner of Agriculture will greatly determine how homeless cats and dogs die in our state. The incumbent, Steve Troxler, favors keeping the gas chamber as a method of euthanasia. Gassing is a horrible way to die; it is often reported that animals cry, defecate, urinate, claw to get out, fight each other, vomit, etc.

National humane organizations recommend injection of sodium phenobarbital as the preferred method of euthanasia.

Ronnie Ansley, has said, “I believe we should always look to the most humane way to handle euthanasia, and I do not believe gas chambers are the way to handle this issue.”

Wake County Judicial Elections

Most of the local Judicial races are "unopposed" and so we don't need to discuss those.  Don't be frustrated by not having a choice.  No choice means that the local attorneys feel that the Judge is doing a good job and therefore no lawyers feel the need to "run against" the incumbent.  That's good news, really.  Of course, opposed races don't mean anything bad about the incumbent, just that someone decided to run.  Don't read into it either way is what I'm saying.

Here are my recommendations in the contested races:

Jacqueline L. Brewer (incumbent) District Court Judge

Judge Brewer is the incumbent who was appointed to a new seat by our current governor.  She came from the prosecutors office after 26 years there and by all accounts has been a great Judge.

Anna Elena Worley,(open seat) District Court Judge

http://annaworleyforjudge.com/

Anna Worley is a:

  • Board-certified Family Law Specialist
  • DRC-certified Family Financial Mediator
  • 1996 Wake Forest Law graduate
  • Spanish-speaker

    I've known Anna since undergraduate days at Wake Forest.  She's amazingly fair minded and knowledgeable.  Her knowledge of family law is a very important attribute for the District Court as the District Courts handle about 99% of family law disputes. Anna won the primary election by almost 10,000 votes over her opponent in this election.  She'll be fair and hold everyone to the burden of proof they have.  While her opponent is a very nice guy and a good lawyer, he's recently been arrested for a second DWIwhich I believe would compromise his ability to be a District Court judge because if he is convicted (his first court date is October 17th) he could be subject to sanctions from the Judicial Standards Commission.   I realize that no one is perfect and we all make mistakes and everyone is innocent until proven guilty but this is a very recent mistake, during an election and would mean we are electing a Judge entering the office under the cloud of a controversy.   District Court judges are the court officials that decide guilt and innocence for DWI convictions.  To me, this seems like a real problem to be both the defendant and the Judge.

    Christine Walczyk (incumbent) District Court Judge

    http://www.judgechristine.com/

    Judge Walczyk attended the University of North Carolina School of Law at Chapel Hill and went on to open her own law practice in Raleigh.  She's the incumbent and is well liked and respected for her judicial demeanor.

    Her opponent in this race has been criticized for unprofessional behavior.  In 2003, before the Wake Public Defender's Office was created, Senior Resident Superior Court Judge Donald Stephens barred Rand (her opponent) from representing indigent clients where the State pays for the legal defense.  Here is the full article from the N&0.

    YOUR VOTE COUNTS- Verify your voting status and vote early

    If you want information about your local race, you can view a personalized sample ballot (and check on your registration status) at the NC State Board of Elections website.  Just enter your name and you can verify your voting status, voting location, and view a full sample ballot for your voting precinct.

    Election Day is Tuesday, November 4, and "early voting"  (one stop voting) begins Thursday October 16 through Saturday November 1st.  Wake County Early Voting information can be found here on the Wake County Board of Elections Website.  State wide early voting information can be found here at the State Board of Elections One-Stop Voting Guide.

    Exercise your right to vote! 

    CLICK HERE FOR A PRINTABLE GUIDE in PDF format:  Download 2008_voting_guide_1.pdf

    __________________

    Chris Nichols

    www.NicholsTrial Law.com

  • www.NicholsTrialLaw.com 1.800.906.5984

    McCain v. Obama on Tort Reform

    I try to keep this Blog fairly apolitical, but during an election season that can be difficult.  My feelings about so-called "tort reform" are pretty clear:  it is generally a terrible idea that only hurts the truly innocent- people who have been hurt by someone else's negligence.

    That said, where do Obama and McCain stand on Tort Reform?  I've tried to present the information below from the most unbiased sources I can find.

      John McCain on Tort Reform

    I've included some links from traditionally conservative voices.  The Club for Growth and an AMA related website.  Most of the information is somewhat critical of McCain for not supporting tort reform "enough."  Because of the nature of the primaries, there is plenty of information about McCain and tort reform from conservative sources (most of which didn't think he was tough enough on tort reform).
     
    Tort Reform

    The American economy suffers from excessive litigation which increases the cost of doing business and slows economic growth. The Club for Growth supports major reforms to our tort system to restore a more just and less costly balance in tort litigation.

    Senator McCain's record on tort reform is generally positive. These votes include:

    • Sponsored the Class Action Fairness Act of 2005 which sought to curb lawsuits by shifting suits from state to federal courts, by requiring judges to review all coupon settlements, and by limiting attorneys' fees in non-cash settlements[65]
    • Voted for a bill that would bar lawsuits against manufacturers, distributors, dealers and importers of firearms[66]
    • Voted for a bill that would place caps on damage awards in medical malpractice suits against obstetricians and gynecologists[67]
    • Voted for a motion to proceed to a bill that would cap non-economic and punitive damages in medical malpractice suits[68]

    This generally positive record, however, is tarnished by Senator McCain's sponsoring of and outspoken support for the Patients' Bill of Rights,[69] which encouraged an increase in the number of frivolous lawsuits filed against healthcare providers. He also voted against the Litigation Uniform Standards Act, which limited the conduct of securities class actions under state law.[70]

    And for what it is worth, here is a transcript from a Rush Limbaugh Radio Show where Rush refers to the above website in order to assess McCain's willingness to implement tort reform.  Rush seems to agree with the above- McCain has a good start but could do even better on tort reform.

    If we assume that what a politician promises in one election they would support in another election, we can go back to 2000 when McCain was running against Bush in the Republican primary.  McCain's website then stated:
    "John McCain has been a leading proponent of lawsuit reform at the federal level. He recently authored the Y2K law that will help limit potential frivolous lawsuits resulting from the Y2K computer problem while also protecting the rights of those truly injured to bring a legal action. The bill addresses the needs of businesses that may find themselves as both plaintiff and defendant, by providing incentives to fix Y2K problems, not rush to the courthouse.

    "John McCain has and will continue to fight to reform our nation’s product liability laws. He supports reforms that would establish a time limit on liability for most products and cap damages on small businesses. He has also worked to provide liability relief to small businesses by sponsoring legislation that limits punitive damages and eliminates joint liability for non-economic damages for small businesses that employ less than 25 people.

    "John McCain also supports small business relief from 'Superfund' liability. He believes the law imposes too severe a penalty on small businesses. He supports changing the regulations to limit the liability of small businesses to the amount of pollution they directly caused to a site, and no more."  From Freedom Works

    Back to 2007.  From a physician website, MedPage Today:

    Arizona Sen. John McCain said tort reform is a top priority. He's supported caps on awards and expressed some support for a loser-pays rule. "We cannot let the search for high-quality care be derailed by frivolous lawsuits and excessive damage awards. … Liability reforms should eliminate lawsuits for doctors [who] follow clinical guidelines and adhere to patient safety protocols."

    McCain laments increased costs stemming from defensive medicine. "In every other industry when technological advances are implemented, costs to the consumer decreases," he told supporters in South Carolina. "This is not the case in health care. … I can't tell you the number of tests that all of us in this room have taken just so that doctors won't be sued for malpractice."

    And while this is not necessarily a "tort reform" issue, McCain supports changes to our health care system which would take most self-funded health insurance plans OUT of ERISA pre-emption.

    The senator does suggest he would change current pre-emption provisions in the Employee Retirement Income Security Act, when he says he would "give states the flexibility to, and encourage them to experiment with: alternative forms of access; risk-adjusted payments per episode covered under Medicaid; use of private insurance in Medicaid; alternative insurance policies and insurance providers; and, different licensing schemes for medical providers."

    ERISA adjustment is also implied by his call to "build genuine national markets by permitting providers to practice nationwide" and his proposal to "allow individuals to purchase health insurance nationwide, across state lines, to maximize their choices."

    Obviously, in North Carolina, taking self funded health plans out of ERISA would have a "pro-plaintiff" benefit because self-insured entities would be subject to NC's anti-subrogation rule.  Clearly, this is an unintended consequence for our state.
    Finally, according to AllBusiness.com, McCain has publicly lamented increased costs stemming from so called defensive medicine, where doctors allegedly over-cautiously order multiple tests in the hopes of avoiding any mistakes or liability. "In every other industry when technological advances are implemented, costs to the consumer decreases," he told supporters in South Carolina. "This is not the case in health care.... I can't tell you the number of tests that all of us in this room have taken just so that doctors won't be sued for malpractice."

    Barack Obama on Tort Reform:
      As a lawyer and constitutional law expert, Obama has spoken favorably of civil litigators at times, but has also been noted in the press to be somewhat more critical of "trial lawyers." While campaigning for the Senate in Illinois years ago, he said, "Anyone who denies there's a crisis with medical malpractice is probably a trial lawyer." [Unsubstantiated info ahead] Furthermore, it has been noted that Obama voted in favor of caps on non-economic damages in medical malpractice cases when he served in the Illinois General Assembly. [NOTE: I pulled this quote from a business website doing a neutral review of the tort reform stances of the candidates.  It was old (pre-nomination) and fairly balanced.  Of course, there was no reference in the article.  I've been questioned on this now, so I'm trying to verify the so-called votes.  Frankly, I was suprised that Obama would vote for any type of cap given his Constitutional experience, so this could be my bad reporting compounding someone else's bad reporting.  Good thing I'm not a reporter!]
     
    In 2005, Barack Obama voted for CAFA, the Class Action Fairness Act of 2005. Who voted against it? Hillary Clinton, Dick Durbin, Ted Kennedy, Pat Leahy, Joe Biden, Barbara Boxer and other progressive Democrats.  The Class Action Fairness Act was strongly supported by business groups like the US Chamber of Commerce.
    The ABA describes CAFA in this way:
    In a nutshell, the Class Action Fairness Act has two principal parts. One set of provisions establishes new procedural and substantive standards applicable to class action settlements. Some of these merely duplicate (or add little to) existing practice under the Federal Rules of Civil Procedure, but others — such as new limitations on attorneys’ fees in coupon settlements and requirements that government officials be notified whenever a class action settles — are brand new.

    In addition to the CAFA bill, Obama has taken a position on medical malpractice tort reform which focuses on improvements in patient care and lower error rates.  In fact, Obama and Hillary Clinton co-authored an article in the May 25, 2006 issue of the New England Journal of Medicine, entitled "Making Patient Safety the Centerpiece of Medical Liability Reform."

    In conjunction with the publication of their article, Obama and Clinton introduced and co-sponsored the National Medical Error Disclosure and Compensation (MEDiC) Act of 2005, a bill that, in part, would have required hospitals to disclose errors to patients and would have also created a national patient safety database. The bill further proposed to create a Department of Health and Human Services program that would seek early compensation for patients and offer liability protections to doctors in exchange for their disclosure of errors and apologies. This legislation was never realized and died in 2006.

    The Last Frontier:  The Supreme Court of the United States

    Other than the candidate platforms and positions, many would argue that the real "tort reform" is accomplished by appointing Judges who will take "tort reform" positions on legal cases.  Justice John Paul Stevens (88 years old) and Justice Ruth Bader Ginsburg (74 years old), are both considered to be left leaning and potentially ready to retire in the next four years.

    About the Supreme Court, Obama has said in a July 7, 2007 speech  "We need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom. The empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old. And that's the criteria by which I'm going to be selecting my judges."

    McCain has said, "I tell you I will nominate only people who have a clear, complete adherence to the Constitution of the United States and do not legislate from the bench. That's who I'll nominate to the U.S. Supreme Court."

    This article will not attempt to futher address the issue of Supreme Court appointments, though obviously the candidates would presumably appoint Judges who agree with their general philosophy on the law.  Whether that position is "pro-consumer" or "tort reform" will be for the reader to decide.

    I'll update this article as I find more information.  Obviously, John McCain has a long voting record, so there can be much more analysis of his voting positions than of Obama.  I may also try to take a look at the positions taken by Biden and Palin, although, again, Biden will have a much deeper record than Palin.

    ----Chris Nichols

    Nichols Law Firm

    www.NicholsTrialLaw.com 1.800.906.5984

    Law Suit Crisis in NC? Not even close, malpractice refund check "in the mail"

    As a personal injury lawyer in the state capitol, Raleigh, I hear a lot of "complaining" by physicians about "crazy lawsuits."  I always tell them (many of whom are friends) that malpractice lawsuits in North Carolina are either declining or at worst, holding steady. 

    The main insurer for physicians, NC Medical Mutual, has just announced that they MADE so much money last year, they are issuing a refund to doctors.  And guess what?  This is NOT a result of tort reform.  We have had no major laws pass in our state which resulted in "savings."

    In fact, based upon actuarial studies, the reality appears to be that when lobbyists for the insurance companies were screaming for tort reform, what they were doing behind the scenes was RAISING premiums for physicains to create what I would call a "manufactured problem."  The doctors' own insurance company was gouging them, and then asking them to donate money to "tort reform" causes, which of course, are insurance company lobby groups.

    Looks like the physicians have finally reigned in their own insurance company by realizing that the "crisis", if there is one, is mostly in the minds (and wallets) of the insurance industry.

    from the News and Observer

    N.C. insurer to pay dividend
    Medical Mutual will also pay off debt as drop in malpractice suits boosts profit

    David Ranii, Staff Writer
    The state's largest medical malpractice insurer says that fewer lawsuits filed against doctors will allow it to pay its policyholders a $3 million dividend -- its first dividend ever.
    Raleigh-based Medical Mutual Insurance Co. of North Carolina said it posted a 7.4 percent increase in profit last year as the number of lawsuits filed against its policyholders fell to 298 last year. That's down from 326 in 2006.

    In addition to paying the first dividend since the company was founded in 1975, Medical Mutual also plans to erase its $10 million in debt this year. And, over the next four years, it plans to refund $12 million in capital supplied by its policyholders in 2003 as part of a plan to shore up the company's finances and stabilize its premium rates.

    In recent years the N.C. Academy of Trial Lawyers, whose members include the personal-injury attorneys who sue doctors for malpractice, has bashed Medical Mutual for charging rates that the lawyers' group labeled excessive.

    Medical Mutual's CEO Dale Jenkins said the dividend and capital refund to shareholders demonstrates "we are a very good steward of the resources the [doctors] have provided to us. We recognize every day that it is their money."

    Medical Mutual hasn't sought a rate increase from state regulators since 2005. The latest positive financial results will allow the insurer to hold rates steady again this year.

    Medical Mutual's dividend will be in the form of a credit that physicians receive when they renew their policies, said Jenkins. The average credit will be about 5 percent of the annual premium for most of the 6,300 North Carolina physicians who are policyholders. Medical Mutual is a mutual insurance company that is owned by its policyholders.

    "We're always glad to see a company ... able to give money back to its shareholders," said N.C. Insurance Department spokeswoman Chrissy Pearson.

    Jenkins said the number of medical malpractice lawsuits has fallen nationwide. In addition, Medical Mutual has taken steps aimed at limiting lawsuits. The company has established stringent underwriting guidelines in order to avoid insuring doctors it considers high-risk, Jenkins said. "We do not take all comers," he said.

    The company also sends out teams of nurses to assess doctors' practices and recommend ways to minimize risks, he said.

    Profit last year totaled $26.1 million, up from $24.3 million in 2006, Medical Mutual reported. Assets increased by $44.9 million, to $416.2 million.

    _______________________________________

    Chris Nichols

    www.NicholsTrialLaw.com

    www.NicholsTrialLaw.com 1.800.906.5984

    Contributory Negligence in NC: why comparative won't raise insurance rates

    NC Lawyers' Weekly has provided a great link to an article that was run in the Winston-Salem Journal about contributory negligence laws in North Carolina. 

    Contrubutory Negligence is an issue that people don't know or care about, until they face the problem themselves.  Basically, in NC, even if you are hurt by someone else's negligence, if the other person can prove you are just a little bit to blame for your injury, you are barred from any recovery.  That's right.  Someone else is 99.9% to blame, and you are barred from recovery.

    Columnist Scott Sexton has written a series of excellent articles on the subject and really puts a human face on this convoluted and political issue.  I highly recommend reading these articles.

    I'll also add this to the mix.  One of the problems with contributory negligence is that it is so often a bar to people seeking legal representation.  Lawyers who represent injured people know that they could spend years working on case and lose everything at trial simply because a jury felt the Plaintiff may have played some very small part in causing the accident.

    Here are some the the previous articles by Sexton:

    Contibutory Negligence: it's "an insurance company's dream "

    "Never mind that Joshua was 7 years old and was within 3 feet of the curb, or that Logan was drunk and driving on the wrong side of the road. "By way of affirmative defense, Defendant Logan pleads the contributory negligence of the decedent Plaintiff Joshua Franklin Palomares-Beckles," wrote Rodney Guthrie, Logan's attorney. If a jury in North Carolina decides that you are even a tiny bit at fault in this sort of case, you are entitled to nothing under state law, under a concept called contributory negligence. "In general, I'd say contributory negligence is an insurance company's dream," said Walter Holton Jr., the attorney who filed the lawsuit on behalf of Beckles-Palomares. "

    Wreck victim faces being victimized by outdated law

    "After an automobile accident in New Hanover County involving his daughter, Ashley, a student at the University of North Carolina at Wilmington, Norris has become something of an expert on a legal concept known as "contributory negligence," an outdated and completely unfair area of insurance law used only here and in three other states. That leaves option C. "Our insurance company is also using the contributory-negligence law claim that Ashley is limited in what we can recover," Norris said.

    'There is no lobby for the little people' in this state

    "Just four states - North Carolina, Virginia, Alabama and Maryland - still hang on to the concept of contributory negligence, a relic from English Common Law. "

    Don't believe hype that law would increase insurance rates
    By Scott Sexton
    JOURNAL COLUMNIST

    Scott Sexton
    Email Bio

    On its face, insurance law - specifically a legal concept called “contributory negligence” - is something that only a serious policy nerd could love.

    That is, unless (or until) you or someone you know gets hosed by that law. Then it’s not so boring.

    Contributory negligence works like this: If you’re in an accident and deemed to be just 1 percent at fault, you’re not legally entitled to one red cent to cover your damages from the idiot (or his or her insurance company) who was 99 percent to blame.

    Three recent columns explored some of the more outrageous abuses of this law. Possibly the worst was the insurance-company attorney who argued that a 27-year-old man killed by a hit-and-run driver in October 2003 while changing a flat tire in Orange County was partly responsible for his own death.

    It’s a shameless, outdated blame-the-victim strategy. It also seems like an easy law to change.

    Yet objections remain. The state, for example, could switch to a “comparative-negligence” system. If you’re 90 percent at fault, you (or your insurance company) pay 90 percent of the damages.

    “Comparative negligence is a nightmare to apply. Few people agree on the percent fault they are assessed, it increases lawsuits, is a cash cow for lawyers, and raises everyone’s insurance rates,” wrote one reader who works in the insurance industry. “If you haven’t noticed, N.C. enjoys some of the lowest auto-insurance rates in the country.”

    Good point. And it’s one worth exploring.

    Low-rate state

    North Carolina does indeed enjoy consumer-friendly auto-insurance rates - the sixth lowest in the country, according to the N.C. Department of Insurance.

    That’s not, however, because of any sense of fair play by insurance companies nor because contributory negligence keeps costs down.

    The credit goes to a man who next to nobody has heard of, state Insurance Commissioner Jim Long. He is basically the final word on insurance rates in North Carolina.

    Every Feb. 1, the N.C. Rate Bureau - an umbrella organization representing insurance companies - files a rate request. The bureau then makes a rate recommendation. Actuaries and attorneys with the Department of Insurance negotiate any changes with the rate bureau. If there’s no agreement, then Long decides.

    “It’s a pretty long and pretty dull process unless you are an actuary,” said Chrissy Pearson, a spokeswoman for the Department of Insurance.

    Given that background, I figured that Long’s thoughts on the merits of contributory negligence versus comparative merits would be worth hearing.

    You can read the rest of the article by going to the Winston-Salem Journal.

    -Chris Nichols

    www.NicholsTrialLaw.com

    www.NicholsTrialLaw.com 1.800.906.5984

    Great video on the myths of "Tort Reform": Mr. Fancy Pants

    This is a great YouTube video on the issue of "Tort Reform."

    The video does a great job showing how giant corporations have twisted and distorted the truth about law suits in America simply to poison jury pools.  They do this so they can continue to deny responsiblity for wrong doing, and basically "save a buck" at the expense of injured people who have done nothing to cause their own injuries.

    It's about 8 minutes long and worth the watch.

    http://www.youtube.com/watch?v=h85j1vNxd8A

    or

    _____________________________

    Chris Nichols

    www.NicholsTrialLaw.com

    www.NicholsTrialLaw.com 1.800.906.5984