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Saw this article today about the very sad story of a little boy who suffered (and continues to suffer) due to the admitted negligence of his treating doctors and facility at which he was treated. As a trial attorneys who represents those injured because of others’ negligence, we see and hear about these cases all the time – maybe not on such a traumatic level but people are damaged by others’ negligence on regular basis and, I believe, we as a society have decided that those who are injured deserve to be compensated for their damages.
Listen, I understand the plight of the insurers and treating doctors but there has to be some other way to solve this problem. It is clear that statistics dispel the notion that “frivolous lawsuits are ruining the system” as the propaganda that it is – asserted by business and insurance company interests who seek to maximize profits over justice for individuals legitimately harmed by someone else’s mistakes.
And, even if I’m completely wrong about the above, i.e., frivolous lawsuits are ruining something/anything – does limiting the caps on damages for those that really, honestly deserve and need it justify the stated goal? I think of it more like this: the American criminal justice system stands (or at least is supposed to stand) for the proposition that it is better to have 100 criminals go free than to convict one innocent person. (Boy, as a criminal defense attorney, I sure wish it really worked that way; but, I digress….hey, if you need a criminal defense or personal injury attorney, come see us here!)
Extrapolating that to this scenario, this is how I see it – better that we have to deal with 100 frivolous lawsuits and their associated headaches than to have THIS happen to even one family. Before I’m willing to hear ANYONE’s allegedly legitimate economical arguments in favor of caps on damages for medical malpractice (or anything for that matter), I want ONE FRIGGIN’ PERSON to honestly tell me that if they found themselves in the position that this family found themselves in which, for those who don’t want to click on the link to the story, let me explain:
a jury, presumably fairly chosen by attorneys representing both sides; attorneys hired by the parties presumably because those parties felt these attorneys were qualified for the task at hand; these attorneys presented this case to this jury. The jury, for whatever reason (again, I think only fair to assume that it was for the right reason), determined that $12 million dollars was fair compensation for what happened.
Regardless, because some pinhead, paper-pushing legislator who had nothing to do with any of this (or more likely the lobbyist(s) who had those legislators in their hip pocket(s)) arbitrarily decided $3 million dollars was the most a person can get NO MATTER WHAT HAPPENS, then this family gets $3 million and not a penny more. Of course, that is the case, as I said, no matter what happens including in this case where this family has already paid $2.5 million in medical bills and still owes much more, not to mention the ongoing and future care this kid will need…..how can we, as human beings, support this result?!? DOES THIS MAKE ANY EFFING SENSE!?
Hit me with your thoughts, support, critiques, criticisms, what have you…but, trust me, no matter what anyone says, if this was them, their child, their relative, their friend, they’d be screaming bloody murder when they learned that they can only have 1/4 of what a jury awarded them because of some arbitrary number picked by a legislator years before having nothing to do with their case…OY!
That is usually the case. But not today as today the United States Senate confirmed The Honorable Michael McShane to the Federal Bench. Judge McShane stated his carreer as a Portland Public Defender.
He is a good man with a good heart and will be a great addition to the District of Oregon.
PS: Did you notice my hillarious play on the word “judge” by using a picture of the Voice judges? I couldn’t resist – I’m addicted to The Voice!
I’ve been watching the hockey playoffs lately, and I was interested to hear that the family of Derek Boogard is suing the NHL for wrongful death.
In the lawsuit, the family alleges the league is responsible for the brain damage that Boogaard suffered during six seasons as an enforcer, as well as his addiction to prescription painkillers.
As a civil trial lawyer, I wonder what the jury will do with this…. What would you do if you were on the jury? Can we blame the NHL for Boogard’s drug addiction? I will be interested in hearing the attorney’s theories on this one.
I was turned onto an excellent article (see, here) recently by my fabulous law partner that discussed an old, favorite topic of mine – sentencing reform. It seems that someone introduced a bill recently (HB 3194 – see it here) that addressed the skyrocketing costs of incarceration and the enormous prison budget in Oregon.
As I have mentioned previously, statistics clearly show that the crime rate has not changed drastically in a very long time. In the US, it steadily rose after World War II and peaked between the 1970’s and 1990’s. It has been in a pretty steady decline ever since. In other words, any recent hype and talk about crime waves, epidemics and the like are just that – talk. The overall statistics do not support the need for bigger enforcement budgets, tougher sentencing laws, and all of our politicians, legislatures, and cops do not need to “get tough on crime” because no matter what we have done over the last 15 years or so hasn’t made a shred of difference!
What has changed though, is our prison population which, both here in Oregon and nationwide, continues to spiral out of control. What does that mean? It means we are constantly having to build and fund bigger prisons for the people we stuff inside them though doing so doesn’t seem to have any affect on the crime rates. Does this make sense to anyone?
For decades now, Oregon has been no stranger to this trend especially since the passage of the draconian Measure 11 long ago. AND, Oregon is no stranger to the overall trend that we have and continue to stuff so many people into our prisons, we can no longer sustain the cost of that. So, someone commissioned a study and found that this is as insane as it sounds. And by insane, I mean the old Albert Einstein definition of insane.
As a criminal defense attorney, I saw first-hand how the prosecutors can use and abuse this statute to force people who committed essentially lower-level crimes into pleas by just threatening or charging them as Measure 11 crimes adding a hefty mandatory minimum sentence to any conviction. And, for some ridiculous reason, people sentenced under this statute get no good time credit and no access to any prison programs. Working as an attorney in both the criminal and civil worlds obviously gives me a unique perspective on this issue and, maybe, I’m too close to the issue to see big picture though I’m brash enough to say, “I doubt it!”
Regardless, we hope, someone and something is going to be done about this if this billed gets passed. Alas, the law and order types (and politicians who prosper on fear mongering to these people) will fight this bill hard telling everyone that we are all in grave danger if we reform some of our sentencing laws and empty some people from our prison population – or, allow them access to some program that might actually better themselves and make their time in custody of some benefit to them, and indirectly, society in general. That position is perfectly espoused in this editorial which is the counter-point to the article that inspired this post. What do you think?
Well sort of. My good friend and attorney mentor, Ryan Scott, gives us the break down on a fascinating case being decided by the Oregon Supreme Court tomorrow.
In a nutshell, this case exemplifies why our justice system is at times, INSANE! Or as my people like to say: Mishuganah!