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Lawyers want fairness for malpractice victims

By Ryan Springer

Published February 11, 2010 5:55 pm
This is an archived article that was published on sltrib.com in 2010, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.
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Health care is on everyone's mind, and in the debate over lowering costs, it has become a custom to blame the trial lawyers. If rising medical costs are really the lawyers' fault, then I will gladly share the secret of putting my colleagues and me out of business: The medical industry must simply acknowledge when mistakes are made and take responsibility by offering victims of malpractice fair compensation for their injuries.

Of course, this is really no secret. Medical corporations and their insurance companies have known it for years. But as injured malpractice victims soon discover, negligent hospitals and doctors will vigorously deny wrongdoing, delay claims for years and offer settlements for pennies on the dollar -- if they offer any settlement at all. Instead, it is far easier -- and far less expensive -- to simply hire lobbyists to convince politicians that it is all the trial lawyers' fault, and pass pro-insurance legislation.

The objective is not to put trial lawyers out of business -- as I explained, that would be easy. Instead, the goal is to radically alter the judicial system to ensure that negligent medical providers will never have to pay for their mistakes. To that end, the medical industry has drafted Senate Bill 145.

Each and every citizen, and especially our legislative representatives, ought to give careful consideration to this proposal, as it "reforms" health care only by severely -- and unconstitutionally -- restricting individual rights.

The Utah Constitution declares that citizens have an inalienable right to petition the courts for redress of their grievances. The proposed bill strips the power of redress from courts and juries and transfers it to the Legislature.

Whereas jurors traditionally determine the value of individual claims on a case-by-case basis, the bill arbitrarily determines that in all cases, pain, suffering and loss of quality of life are worth $250,000 -- adjusted for inflation, that's about half of what they were worth 30 years ago.

This violates the separation of powers clause of the Utah Constitution and would greatly diminish, if not nullify, the constitutional right of redress. Indeed, the current proposal is a blatant attempt by the Legislature to reach beyond its constitutional authority and assert judicial powers our state Constitution has conferred upon the judicial branch.

A similar measure was recently struck down by the Illinois Supreme Court on separation of powers grounds. Should our Legislature pass SB 145, which suffers from the same defects as the Illinois law, Utah taxpayers will be forced to fund a lengthy and expensive court process.

Additionally, the bill poses a number of practical and economic obstacles for malpractice victims. Malpractice attorneys do not require retainers or bill their clients by the hour. Instead, we pay costs and expenses out of our own pockets and recoup them only after a settlement or verdict is paid.

The bill drastically limits the amount that plaintiffs' lawyers can collect, which may convince some malpractice lawyers to simply move on to other areas of practice. But once we're gone, people injured by medical negligence will be left to navigate the complex legal system alone.

Malpractice victims, already hindered by enormous medical bills, devastating injuries and the inability to work, will simply be no match for the insurance companies. Their attorneys will have handled hundreds of malpractice cases and are not strangers to the courtroom. Injured individuals who prosecute their own claims will be like fish in a barrel for crack-shot insurance defense lawyers.

We can all agree that our health care system needs improvement. But helping insurance companies at the expense of Utahns' constitutional rights is not the answer.

Ryan M. Springer is a Utah attorney whose practice is focused on medical negligence and health care cases.



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