What do McDonald's, Jack-in-the-Box and an uninsured motorist have in common? Well, you might recall that back in the day elderly Stella Liebeck was the victim of a hot coffee spill at a McDonald's drive-through. When McDonald's refused to pay for her skin grafts and other related medical bills, they were hit with a multi-million dollar verdict. McDonald's whined and cried and screamed bloody murder but, the truth is, that the verdict was in response to their refusal to lower the temperature of the coffee they served to something safe -- i.e., a temperature which doesn't cause third degree burns upon instant contact with the skin. Read McDonald's Coffee Case, The Truth -- I'm still outraged at the perception that Stella's lawsuit was frivolous when McDonald's callously put profits above safety.
But I digress.
Young Woman Burned at Jack-in-the-Box
Fast forward to the 21st Century when a young woman, Teckla Chude, pulls her car into a Jack-in-the-Box drive-through, orders coffee and is handed a cup with a loose lid. Lo and behold she suffers the same fate as Stella Liebeck and is burned pretty badly. Teckla's injuries were expressly alleged to be increased because she couldn't get out of the vehicle after the coffee spilled because the drive-thru was too narrow to let her open her door and the hot coffee just soaked through her pants causing burns and, ultimately, some scarring. She incurred medical bills, loss of earnings and had to delay her schooling a bit.
Jack, that clever fellow, had his lawyers argue that Teckla Chude was ineligible to recover for her pain and suffering under California's Uninsured Motorist Law which states that "in any action to recover damages arising out of the operation or use of a motor vehicle, a person shall not recover non-economic losses to compensate for pain, suffering, inconvenience, physical impairment, disfigurement, and other non-pecuniary damages, if any." Read Uh-Oh, Car Accident With No Liability Insurance: "But I'm Not At Fault" for a colorful explanation of the law.
Teckla Loses! Jack Wins (say what?)
Yep, you read it right! The California Court of Appeals decided that the Uninsured Motorist Law applies to this case. Here's their actual opinion: Chude v. Jack-in-the-Box. And here's the court's logic:
...Chude used her car to drive up to the drive-through window. Even more than the plaintiff in Harris or Cabral, both of whom had parked and were outside of their vehicles, Chude was seated inside her car, with her seatbelt on, with the motor running and the transmission engaged. Here, the accident "arose out of" her "operation" and "use of" her vehicle at the time of the incident. More important, Chude would not have been in the drive-through lane purchasing coffee but for her vehicle. It is JIB's policy not to serve anyone at a drive-through window who is not in a motorized vehicle. Thus, the accident "arose out of" or "flowed" from Chude's operation and use of her vehicle. Stated otherwise, she was in the drive-through lane precisely because she was using her car to purchase coffee from the drive-through window part of the restaurant. Accordingly, this "action to recover damages ar[ose] out of the operation or use of a motor vehicle" and so section 3333.4, subdivision (a) applies to bar her recovery of non-economic damages.
Don't Get Burned! Get Auto Liability Insurance
Was this the intention of the statute or is the court reaching too far in its interpretation? Maybe, maybe not. But this is how the court has interpreted the law so broadly that I must give you the bottom line: Get liability insurance when driving in California or you could get burned! (Read Auto Insurance Coverage From a Personal Injury Lawyer's Perspective)For a Free Consultation please contact Attorney Lowell Steiger immediately at (323) 852-1100
Skype (with or without video): Lowell_Steiger
"Treated With the Respect and Understanding That You Deserve"
Here is Ms. Powell's article in its entirety (reprinted with her permission, of course):
When the general public hears the millions of dollars that is sometimes awarded, they do not know what makes up the award. As a Life Care Planner I can tell you that future medical is oftentimes in the millions of dollars for what on the surface might seem like a minor medical problem. What you don’t see is the hours of assistance, medical devices used, and frequent follow up with medical providers to keep the patient moving and an active member of society.
The famous McDonald’s coffee case is one such example. This was not a frivolous case. It was just that the major findings were never made public by the media. Since that case was settled some facts have been made known. You can read about these in this article or in another by the Wall Street Journal.
My Twitter friend, Lowell Steiger, an attorney from Los Angeles, writes about another such case. A Manhattan Jury awards $3.5 million to a young man who lost his leg when an MTA train ran over him while he lay on the tracks. In a closer look, Steiger points out that the jury actually found fault with both parties and the award was decreased to $2.3 million. You can read more about this case on his law blog.
As a Life Care Planner, $2.3 million for a below knee amputation, does not mean this young man has been hit by the gravy train. Prosthesis are tens of thousands of dollars and require regular maintenance and replacement. The skin problems due to wear and tear due to the prosthesis can be numerous and expensive to treat. The medication regimen for an amputee with phantom limb pain results in hundreds of dollars in prescription costs each month. Add to this the physician appointments and the associated mileage. When you are finished with those calculations multiple those dollars by the many years of life expectancy for this young man and you should have close to $2 million plus in medical expenses.
The media does not always follow through on a case. The reporters are often looking for a quick story and sensational headlines. They do not have the advantage of this nurse, to enter the home of the injured and see how their life and the lives of those around them are affected. Do not be too quick to judge based solely on the size of the award or the headlines you have read.
If you were injured and received a large award, how would you want the headlines to read?
If you, or someone you know, has been injured, please call me immediately at
(323) 852-1100 or send an e-mail to me at lowell@steigerlaw.com
"Treated With the Respect That You Deserve"
If you, or someone you know, has been injured, please call me immediately at
(323) 852-1100 or send an e-mail to me at lowell@steigerlaw.com
"Treated With the Respect That You Deserve"
I just found this fantastic Slowpoke cartoon by Jen Sorensen entitled "Slouching Towards Hypocrisy." Amusingly poignant. To paraphrase former First Lady Nancy Reagan, "Just Say No To Tort Reform."
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The Law Office of Lowell Steiger Represents Injured Victims
If you have suffered a Personal Injury, Call for a Free Consultation
Contact Attorney Lowell Steiger at (323) 852-1100
or via e-mail at lowell@steigerlaw.com
"Treated With the Respect That You Deserve"
Professor Timothy Lytton (Albany) has published Holding Bishops Accountable: How Lawsuits Helped the Catholic Church Confront Clergy Sexual Abuse (Harvard University Press 2008), available here. The abstract (from SSRN) reads:
The sexual abuse of children by Catholic clergy is arguably the most acute crisis Catholicism has faced since the Reformation. The prevalence of clergy sexual abuse and its shocking cover-up by church officials have obscured the largely untold story of the tort system's remarkable success in bringing the scandal to light, focusing attention on the need for institutional reform, and spurring church leaders and public officials into action.
Stories of the tort system as an engine of social justice are rare. Holding Bishops Accountable tells one such story by revealing how pleadings, discovery documents, and depositions fueled media coverage of the scandal. Timothy Lytton shows how the litigation strategy of plaintiffs' lawyers gave rise to a widespread belief that the real problem was not the actions of individual priests but rather the church's massive institutional failure. The book documents how church and government policymakers responded to the problem of clergy sexual abuse only under the pressure of private lawsuits.
As Lytton deftly demonstrates, the lessons of clergy sexual abuse litigation give us reason to reconsider the case for tort reform and to look more closely at how tort litigation can enhance the performance of public and private policymaking institutions.
I stand by my contention that frivolous lawsuits are a myth. Click here to read other posts in this regard.
***************************************************************************************************************************** The Law Office of Lowell Steiger Represents Injured Victims
If you have suffered a Personal Injury, Call for a Free Consultation
Contact Attorney Lowell Steiger at (323) 852-1100
or via e-mail at lowell@steigerlaw.com
"Treated With the Respect That You Deserve"
Thanks to Bob Kraft's Blog for bringing to light the facts regarding the reality behind the Texas "tort reform" legislation of 2003. In essence, the "tort reform" is nothing more than the insurance companies' ability to lobby to put a cap on pain and suffering while increasing their profits. They have essentially stripped victims of medical malpractice from the ability to access the courts.
Watch Fox 4 "Investigation-Tort Reform Questions" here.
Read the Fox 4 "Investigation: Tort Reform Benefits Questioned" here.
The rationale behind the legislation was that doctors were leaving in droves due to high medical malpractice insurance premiums and the threat of lawsuits. The reality is that there were more doctors in Texas before the legislation passed and that since the legislation has passed health insurance premiums for the average family has increased from $8,000 per year to $11,000 per year, there are less doctors in Texas, insurance company profits have skyrocketed and legitimate victims of medical malpractice cannot find attorneys to represent them because the cost of the suit is so exorbitant that the limits on pain and suffering preclude attorneys from being able to represent the client.
The Fox 4 Investigation looks at the following 3 questions in detail:
Related Links
Tort Reform Brings More Doctors to Texas, But Only for Rich People (Mother Jones)
McDonald's Hot Coffee Lawsuit and Beyond: The Tort "Reform" Myth Machine (Jon Greenbaum, Peacecouncil.net)
Texas Newspaper Accused of Tort-Reform Bias (NPR)
Frameshop: Compensation Caps, aka Medical Malpractice Tort Reform (Blog for Arizona.com)
Texas Insurer Admits Caps Don't Work (Law Office of Beth S. Janicek)
Insurance Industry Now Thinks Texas Needs More Litigation (The Tortellini)
Benched DVD: The Corporate Takeover of the Judiciary (Trialnotes)
Don't let 'em fool you. Frivolous Lawsuits are a Myth created by the insurance company lobbies to deny you access to the courts. Period.
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The Law Office of Lowell Steiger Represents Injured Victims
If you have suffered a Personal Injury, Call for a Free Consultation
Contact Attorney Lowell Steiger at (323) 852-1100
or via e-mail at lowell@steigerlaw.com
"Treated With the Respect That You Deserve"
Philip G. Peters, Jr., of the University of Missouri-Columbia School of Law writes this enlightening article entitled "The Fairness of Malpractice Settlements." He writes "Over the past quarter of a century, more than a dozen studies have collected data on malpractice settlements. With only one exception, they have consistently shown that plaintiffs with strong cases are more likely to receive a settlement payment than plaintiffs with weak cases. Moreover, the data on malpractice settlement strongly suggests that liability insurers possess a palpable advantage in bargaining power."
This is yet another article in support of the very strong assertion that frivolous lawsuits are nothing more than a myth. The entire article can be read by Clicking Here to open the article in Adobe Acrobat PDF format (if you don't have the Adobe Acrobat Reader, you can Download Adobe Acrobat Reader for Free Here.
The Law Office of Lowell Steiger Represents Injured Victims
If you have suffered a Personal Injury, Call for a Free Consultation
Contact Attorney Lowell Steiger at (323) 852-1100
or via e-mail at lowell@steigerlaw.com
"Treated With the Respect That You Deserve"
The Texas law firm of Perlmutter & Schuelke has posted an excellent article to their BLOG entitled Tort Reform: Straight From the Horse's (or the Judge's) which summarizes a Baylor University study wherein they surveyed Texas Civil Judges regarding their opinions on Tort Reform (or, as I like to call it, Tort Deform). Essentially, the report found that "the results were findings that substantially more judges thought juries had awarded too low of damages than judges that thought juries had awarded too much. And well over 80% of the judges did not think there needed to be additional "reform" to address frivolous lawsuits." The following 5 paragraphs are copied directly from their blog:
For years, Texas residents have been hearing about runaway juries, frivolous lawsuits, and the need for tort reform. But most of the stories in the popular press and thrown around by tort reform groups are anecdotal; there has always been a question of how to best gather data to measure whether jury awards are excessive or suits are frivolous. Several law professors at Baylor think they’ve found the answer. As they say:
[We] believed that asking state court trial judges — "the daily observer of the jury system in action" — would yield the most reliable information on the state of the jury system. The trial judge is the only one in a position to have both seen the same evidence as the jury and yet to be completely non-partisan about the proceedings. Further the trial judge has the benefit of seeing the jury system at work in many cases and is unlikely to form views about the legitimacy of a tort crises based upon anecdotal information about one particular case. Thus, the trial judge would "appear to be the person most capable of forming an informed and objective opinion about the value of civil juries."
So, for the last two years, the professors have conducted a survey of Texas District Court Judges to get their views on the "litigation crises." After receiving responses from an astounding 78% of Texas district court judges, the results of the survey were released in the Baylor Law Review in an article titled Straight From the Horse’s Mouth: Judicial Observations of Jury Behavior and the Need For Tort Reform.
Because the article is not yet publicly available, we don't want to provide too many details. But we will say that among the results were findings that substantially more judges thought juries had awarded too low of damages than judges that thought juries had awarded too much. And well over 80% of the judges did not think there needed to be additional "reform" to address frivolous lawsuits.
This research provides some groundbreaking, quantifiable evidence about the need (or lack thereof) for additional tort reform. It’s a great read (that’s unfortunately not available on-line), but we encourage everyone interested in tort reform or limits on damages in personal injury cases to seek out a copy of the entire article. Our only criticism? With both of us University of Texas grads, we wish some of our faculty in Austin had conducted the study instead of it coming from Waco.
A further good read in regard to how the media has distorted the facts to brainwash the public into believing that our legal system is being destroyed by "frivolous lawsuits" is Distorting the Law by William Halton. Here's the blurb: "Distorting the law persuasively shows how widespread media reporting of frivolous lawsuits and high settlements have led many Americans to believe we live in the land of the litigious, while the careful research and statistics that would dispel this myth have not received media attention."
The Law Office of Lowell Steiger represents injury victims. Free consultation. Please contact Attorney Lowell Steiger by e-mail at lowell@steigerlaw.com or by phone at (323) 852-1100. Treated With the Respect That You Deserve
Below is an article that was posted in the South Carolina Personal Injury Law Blog on April 26, 2007:
From the American Association for Justice:
A bogus study released today by the national Chamber of Commerce claiming to rank so-called “anti-business” state legal systems is yet another baseless attack on the nation’s civil justice system in its campaign to eliminate corporate accountability for wrongdoing and negligence.
“This latest propaganda is a made-up survey primarily of corporate lawyers earning millions of dollars defending their CEOs from being held accountable,” said Jon Haber, chief executive officer of the American Association for Justice. “The Chamber will stop at nothing to destroy the civil justice system in America, which protects the rights of consumers, employees, and shareholders against corporate wrongdoing and negligence.”
As the largest lobby in the country and a front group for corporations seeking to evade accountability for wrongdoing and negligence, the national Chamber of Commerce has led the effort to eliminate access to justice for Americans.
The American Association for Justice today released “The Ten Worst States to Get Sick or Injured In” providing sobering examples of how the national Chamber’s efforts and those of big corporations seeking to evade accountability for wrongdoing and negligence puts corporate greed over public good.
“The Ten Worst States to Get Sick or Injured In’’ shows what America is in store for if the national Chamber and powerful corporations get their way. “Efforts by front groups like the national Chamber to pass laws that allow corporate CEOs to evade accountability for wrongdoing and negligence have eliminated many Americans’ access to justice,” Haber said.
The 10 Worst States To Get Sick Or Injured In:
1. Don't Get Hurt in Alabama.
It doesn’t matter how seriously an individual is injured, Alabama law limits restitution for every injury or death caused by the government to what’s available under workers comp. If a local governmental entity is held responsible, no matter how great the loss, restitution is limited to $100,000 per person for injury or death, or $300,000 if more than one person is injured or killed in the same incident – no matter how many people were affected. So the more people hurt, the less restitution they receive. Alabama Code §§ 41-9-70, 11-93-2, 11-47-190.
2. Alaska’s Big Freeze.
In Alaska, restitution for “noneconomic” losses is limited to the greater of $1 million or the injured person’s life expectancy in years multiplied by $25,000. That may not sound bad until one remembers that people can live 50 years or more after they are injured, and these injuries can include something as serious as the permanent loss of urinary and bowel function. Fifty years of tending to the necessary medical needs – let alone the initial treatment – would not come close to being covered by this limited amount. Alaska Statutes § 09.17.010; State v. Johnson, 2 P.3d 56 (Alaska 2000).
3. Colorado’s Rocky Mountain Low.
Restitution for victims injured by a Colorado state employee is limited to $150,000. If two or more people are injured at one time, restitution is limited to $600,000, no matter how many people must divide the amount. In such cases, regardless of need, no one person can recover more than $150,000. For many victims of serious injury, this would never even cover the basic hospital costs. Colorado Revised Statutes § 24-10-114.
Colorado's legislators have also imposed arbitrary limits on the amount of restitution that can be awarded to medical patients, injured through no fault of their own. No matter the facts of the case, how badly the patient is injured, or how much the medical care and rehabilitation has cost in the past or will cost in the future, compensation is strictly limited to $1 million. Colorado Revised Statutes § 13-64-302(1)(b).
4. Florida’s Gator Bite.
Florida has consented to allow its citizens to hold the state and its employees accountable – up to a point. Restitution in such cases is limited to $100,000 for one person and a total of $200,000 per incident, no matter how many people are injured or the severity of the harm. Personal losses exceeding $100,000 "may be reported to the Legislature," which may or may not do anything at all. Injured individuals can always hope the state agency involved bought liability insurance. If not, there is no recourse. Florida Statutes § 768.28(5).
In 1988 state legislators took away judges’ and juries’ right to determine cases of babies with brain injuries injured during birth. If expecting parents want to ensure a potential birthing center can be held responsible for its mistakes, they are forced to search out a “non-participating provider” in Florida’s bureaucratic “FBRNIC” Plan. But more often than not, expecting parents have no idea they could be signing away their child’s future in the often-confusing documents piled upon them during a prenatal visit. Florida Statutes §§ 766.301 - .316
5. Illinois Hospitals Run on the Cheap.
If you get injured as a result of negligence by a state employee or agent – like a physician working at a state-operated hospital – restitution will be limited to $100,000 no matter how serious the injury or how expensive the recovery. Illinois Statutes Chapter 705 § 505/8(d).
6. Don’t Get Sick in Indiana.
Legislators imposed an arbitrary limit of $1.25 million for injured patients’ restitution, no matter how bad the injury or how much it will cost to provide future care. Although future care for a badly injured person – like a baby with brain damage – can last for decades and cost millions of dollars, Indiana healthcare providers (in reality, their insurance companies) are liable for only the first $250,000. That’s a sweet deal for the insurance companies, which pass the rest of the bill on to the state taxpayers. Ind. Code Ann. § 34-18-14-3.
A tragic example of this limit’s impact can be found in the experience of Frank Cornelius, a lobbyist who helped convince Indiana lawmakers to adopt it. After helping pass the limits, Cornelius was the victim of four separate acts of negligence in the course of routine surgery and post-operative care. He wrote a poignant article in 1994 stating that, at age 49, he was confined to a wheelchair, was in constant pain, his marriage ended, and he had amassed medical bills of more than $5 million. Due to the limits, his restitution was limited to $500,000.
7. Oklahoma’s Not OK for Injured Patients.
Oklahoma legislators have imposed a complicated system on injured patients, which resembles a game of poker more than it does access to justice. For example, a guilty party can make an “offer of judgment” before trial – if they offer to settle the case, forego trial, and, if the injured patient will accept their offer, allow a judgment for that amount to be entered against them. If the patient declines the offer of judgment and proceeds to trial, and does not secure a judgment for at least 1½ times the amount offered before trial, any noneconomic compensation is limited to $300,000. Oklahoma Statutes, Title 23, § 1- 1708.1F-1.
8. Texas: Dead on Arrival.
Legislators decided to let the families of dead patients fend for themselves. Even if a family has lost its breadwinner, if they sue for restitution, they are limited to an amount of $500,000 (to be adjusted to track the consumer price index). The limit applies to each patient killed, no matter how many medical centers, doctors, or other healthcare personnel were responsible for his/her death. Texas Civil Practice and Remedies Code § 74.303.
9. Virginia May Be for Lovers, but It's Not for Injured Children.
Virginia has a separate system for cases where babies are brain damaged during birth. Such injuries can result from oxygen deprivation or mechanical injury. Babies who suffer them can be permanently disabled, and may need assistance with daily living activities, up to and including round-the-clock care for life. In some cases they need care long after their parents have died. The bureaucratic “VBRNIC” Program is charged with providing lifetime care for injured babies, related expenses and compensation for a child’s lost earnings. Once a baby is injured, the state’s Workers’ Compensation Commission decides whether the baby will be covered, and the claim is never seen by a court unless the Commission’s decision is appealed. Once the Commission decides to cover a baby, the child and his/her family are prevented from ever holding the healthcare provider responsible for the baby’s condition, or for any harm coming to the mother.
Not only does this treatment go against the basic respect for human life, but it also forces an undue burden onto state taxpayers. The program’s expense is borne not by those who caused the injury, or even by their insurance companies. It is borne by every Virginian who purchases any kind of liability insurance – even homeowner and automobile insurance. What’s worse is that the program costs more to operate than the tort system it replaced, juries and all. Virginia Code §§ 38.2-5000 to -5021.
10. West Virginia, Almost Heaven?
In West Virginia, as long as a healthcare provider has malpractice insurance with at least a $1 million limit, no victim of his/her negligence can recover restitution of more than $500,000 for a "noneconomic" loss. However, "noneconomic" is defined to include a number of conditions that can have major economic consequences. Such losses include permanent, substantial physical deformity, loss of use of a limb, loss of a bodily organ system, or a permanent physical or mental injury that leaves the victim unable to care for himself/herself independently and perform "life sustaining" activities. West Virginia Code § 55-7B-8.
As the world's largest trial bar, AAJ (formerly known as the Association of Trial Lawyers of America) promotes justice and fairness for injured persons, defends the constitutional right to trial by jury, and strengthens the civil justice system through education and disclosure of information critical to public health and safety. With 52,000 members worldwide, AAJ provides lawyers with the information and professional assistance they need to serve clients successfully and protect the democratic values of the civil justice system. Visit http://www.justice.org
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