Eric Turkewitz

Tort “Reform” Law thrown out by court

Cross-posted from NY Personal Injury Attorney Blog

A noxious tort "reform" law -- one that made it more difficult to sue medical practitioners -- was thrown out by the high court of Oklahoma yesterday. The law placed a substantial barrier in the way of claimants, forcing them to produce a doctor's affidavit of merit to be filed in court before discovery even begins in a case. The decision is not on the court's website as of this writing, but should be available in a day or two. From the newspaper article:(keep reading)

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Posted at 9:51 AM, Dec 22, 2006 in
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The certificate of merit also provided an absolute shield for the plaintiff lawyer.

Now, Oklohoma doctor defendants are free to file ethics charges against the plaintiff lawyer who has filed a claim without merit. These should be sent in, one at a time, wait for the investigation to run, send in the next element that is unethical. Send in one charge a month, one to each of the states where the lawyer is licensed. The doctor will have absolute immunity if he keeps the charges confidential.

If the doctor wins the jury verdict (70% chance), the doctor should sue the plaintiff, the plaintiff lawyer, the plaintiff lawyer firm, the plaintiff lawyer supervising attorny, the judge failing to stop the meritless case, the employer of the judge. Ethics charges should be filed against each of the plaintiff experts with their professional societies, their certifying boards, and each of their states' licensing boards. Again, do so once a month each.

The good plaintiff attorney will always have had an expert tightly review the case, so that he does not waste $10's of 1000's on going forward.

Posted by: Supremacy Claus | December 22, 2006 11:15 AM

You are correct that a good med mal attorney will always have a case reviewed before putting it into suit. But that is not the same as forcing a plaintiff to spend unnecessary money on affidavits that will be available to the public. Many docs will want to give discreet advice and the public filing prevents that.

The opinion is now available and I have posted excerpts of it, and why it was unconstitutional, on my blog.

Your citation to a 70% loss of rate for med mal cases, is as you know, highly misleading, since most cases don't go to verdict. And simply because a case is lost at trial doensn't mean it was frivolous or unethically brought. It may be a very simple factual dispute where, for example, a woman claims to have told a doc about a lump in the breast and the doc denies it. Sometimes the jury gets that right, sometimes not, and only the good lord knows for sure.

New York Personal Injury Law Blog

Posted by: Eric | December 22, 2006 3:15 PM

Put aside its lawlessness in cancelling a valid law. I liked this decision. It laid out the arguments that apply equally to the self-dealt immunities of both the plaintiff bar and the judges, violating constitutional rights. These lawless self-dealt immunities block the courthouse door to the victims of the careless lawyers and pro-lawyer biased judges. All self-dealt land pirate immunities violate the state and US constitutions.

When you say, forced to spend money on affidavits, you are talking about a few hundred dollars for a record review and a brief letter. A negative opinion will serve to prevent further expense, and a written opinion will shield the plaintiff lawyer from a legal malpractice claim by their sleazeball clients. In the meantime, when the frivolous claim is filed, naming every name in the chart, generating a dozen meritless claims, the defense will spend 5 figures to reach demurrer, more to defend past that point. The defense bar will do nothing to scare the plaintiff bar, their good friends, to whom they owe their jobs. One day, the defense bar will pay for betraying clients. When the databases of enemies of all productive sectors of our economy get compiled for self-help, the defense bar goes in.

I know that prostitute experts have total immunity for their anti-scientific lies, at the Supreme Court level. However, their identity must be public, so that their peers can help them improve their understanding of medical science and clinical care. Many are academics. That means they are unqualified to judge clinicians, for their lack of patient experience. Academic institutions, contrary to popular impression, give the worst care, by their clinical inexperience. Medical academics are mere followers and lazy verifiers of long established practices. The medical article represents data on the care of 10 years ago. Meanwhile, no doctor is doing what he was even 5 years ago.

I would be interested if, these days, plaintiff attorneys are still able to find plaintiff experts in the same state. Lawyers like academic medical experts due to their shared love of paper shuffling and preoccupation with protocol and regulations. Most of this testimony is itself the worst form of medical malpractice. It imposes outdated, incorrect standards of due care on doctors across a state, most of it wrong by general consensus. The academic doctor wouldn't know that because they are scholars, and patients are an inconvenient nuisance, whom they have to be forced to see on rare occasions.

Let's assume that both experts are testifying in good faith. That honest opposing opinions exist, and a jury is allowed to hear both, that violates the due process rights of doctor defendants. The likelihood is that there is a medical controversy, and the competing fairy tale stories of the land pirates. That cannot be settled by the rhetoric of a court. Only additional scientific data can settle a medical controversy. The other possibility, equally unconstitutional, is that there are two standards of due care. To have unqualified jurors settle that at the point of a gun is lawless. I blame the judge for not seeing this elementary error. That is why judges must become liable for their lawlessness and pro-lawyer rent seeking bias. They are always biased for a trial and disqualified as biased.

The 70% figure verdicts for the defendants, year after year after dreary decade, implies a defect in the judges' management of these cases. Once the lawless and unconscionable, corrupt, self-dealt immunity of the judges and the self-dealt, nearly total immunity of the plaintiff bar are pierced, these tortfeasors will be made to pay the huge class of victims of frivolous lawsuits to the last button on the last shirt.

I encourage defendants to stop their forbearance of these violations of the Rules of Conduct, Evidence and of the Constitution. Legal recourse should be sought, in every case, against every land pirate and their corrupt running dogs.

Posted by: Supremacy Claus | December 23, 2006 3:11 PM