Articles

1. Incredible Shrinky-dinks maker $29.99 made by Big Time Toys LLC uses significant electricity and is not adequately insulated, causes deadly shock, cannot be left plugged in.
2. Sword fighting Jack Sparrow $59.98 made by Jakks Pacific action figure with a sharp rigid sword activated by pressing a lever difficult to control can take out an eye inadvertently
3. Gigan Godzilla $22.00 by Bandai action figure with   “fins” and “claws” are rigid sharp protrusions that cause punctures, lacerations and potential eye and mouth injuries
4. Twist n’ Sort $13.35 by Guidecraft looks benigh but 3 of the 4 posts have small detachable rings that are attractive choking hazards for small children
5. Power Rangers Samurai Mega Blade $26.99 Bandai  available at Toys R Us, KMart.com, and Walmart.com – the toy operates a release that  flips-open a rigid plastic sword that extends 2 feet and can cause serious facial or other impact injuries.
6. Fold and Go Trampoline $99.99  The Original Toy Company:  The instructions tell users to only do “controlled bounces.” Yet this is still a trampoline with the unguarded hazard of head and neck injuries and without any of the protections provided with larger trampolines.
7. Pulling Animal Duck $29.99 Haba This pull-toy duck’s cord is 33 inches long,  a serious strangulation hazard for children 12 months and older. Toy Industry standards limit strings on crib and playpen toys to 12 inches.
8. School Bus $4  Schylling The rubber tires easily come off the plastic wheels and are small enough to choke children.
9. Z-Curve Bow $25.05  Zing Toys Inc. A bow and arrow set that shoots foam arrows with enough force to travel 125 feet injuring eyes of unsuspecting bystanders or playmates
10. Stepper ‘Low Rise” Stilts $10.99 JJI Toys These plastic imitations of the coffee can stilts we used to make are twice as tall and has no warnings or instructions or protective pads. It invites children, as young as five years old, to ‘[j]ust step on the platform, pull the ropes up tight, and begin to walk around’ while balancing on top of the cups.” Height and stability are sufficient to cause head, face and impact injuries without protection.

by Linda Miller Atkinson, Trial Magazine

How can jurors evaluate the claim of a severely brain-injured plaintiff who can’t testify in the conventional way? Make sure they observe the plaintiff in court and hear testimony from ‘interpreters’ who can tell his or her story.

If you’ve ever represented a catastrophically injured client—for example, a brain-injured person who can no longer speak or even think the way he or she did before suffering a serious head injury—you’ve heard defense counsel ask speculative questions that your client cannot answer. For example:

“Tell us about your cognitive function before the car crash. What did you know then that you don’t remember now?”

“Are you doing well in school, or are you developmentally delayed?”

“What would you have seen if you had looked behind you before the crash?”

Although the answers to these questions go to the heart of the case, the plaintiff is in no position to respond. Brain-injured plaintiffs cannot tell the jury through ordinary testimonial means what happened, how their lives have changed, what they can and can’t do, or what they need in order to live useful lives. Yet jurors need this evidence to judge the facts.

Under these circumstances, how can you present the evidence necessary to support the case and persuade jurors to compensate your client? The answer lies in a two-pronged strategy: Ensure that your client attends the trial, even if only for short intervals, and use “interpreters”—experts, teachers, therapists, family members, friends, and coworkers—to supply the testimony that your client cannot give.

Not all evidence is verbal. Jurors observe the plaintiff whenever he or she is present in the courtroom—conferring with you, interacting with family members or caregivers, listening to testimony, entering and leaving the court, and so on. They will use this visual evidence as they consider important questions: How does the plaintiff communicate? Do the plaintiff’s interactions with others in the courtroom support witnesses’ testimony about his or her actions and capabilities outside of court? Do the plaintiff’s injuries appear consistent with evidence about causation? To answer these questions, jurors need to observe your client firsthand.

You must analyze and present nonverbal evidence as carefully as you analyze and present documentary and verbal evidence. Just as you plan for a court reporter to take and show a video deposition, you must plan for a nurse attendant, parent, or spouse to assist your client in court. Just as you plan to show excerpts from a “day in the life” film, you must plan for your client to appear in the courtroom at appropriate times, even if only briefly.

Right to attend
Some courts—often citing the need to protect against what they believe is jurors’ irrational vulnerability to sympathy—have excluded severely injured plaintiffs from the courtroom even during the presentation of their cases.

For example, in Caputo v. Joseph J. Sarcona Trucking Co., the trial judge barred the plaintiff (who had been declared incompetent before trial) during the liability phase, holding that his presence in the courtroom would impair the jury’s ability to be objective.¹

Some courts have found that a brain-injured plaintiff cannot assist counsel at trial, as though assistance were only verbal or cognitive. For example, inProvince v. Center for Women’s Health & Family Birth, the trial court granted the defendant’s request to exclude the plaintiff, a brain-injured infant, during the liability phase of the trial.

The California appeals court agreed that the infant could not assist counsel, holding that the Due Process Clause does not grant a civil litigant an absolute right to be present in court in person. Overlooking the value of the jury’s observations of the infant plaintiff, the court said counsel alone may sufficiently protect the client’s interests in the courtroom.²

Fortunately, some courts—particularly the Sixth Circuit—have provided helpful language supporting the plaintiff’s right to attend. In Lane v. Tennessee, the court noted criminal defendants’ right to be present throughout trial and concluded, “Parties in civil litigation have an analogous due process right to be present in the courtroom and to meaningfully participate in the process unless their exclusion furthers important governmental interests.”³ It held that this guarantee is “protective of equal justice and fair treatment before the courts.”⁴

In an earlier case, Helminski v. Ayerst Laboratories, the Sixth Circuit determined that the trial court had improperly excluded a child plaintiff who had suffered neurological injury. The appeals court held:

A party to a lawsuit has a right to attend the trial absent an overwhelming reason to the contrary. In a civil case, this court can at this time envision no reason to exclude a party because of his injuries, particularly where, as in this case, the party’s behavior at trial was not disruptive.⁵

Similarly, in Marks v. Mobil Oil Corp., the court held that the plaintiff’s severe injuries from an auto accident—rendering him incompetent, spastic, and paraplegic—were not grounds for excluding him from trial, especially because his behavior was not disruptive. The court found that his presence was not prejudicial to the defendant, noting that “the testimony of plaintiff’s damages witnesses . . . painted a grimmer picture of the injuries than the actual sight of [him].”⁶

The Helminski court explained that even if a judge determines that an injured plaintiff’s presence would prejudice the jury in his or her favor, the plaintiff may still have a right to attend the trial: “If the trial court concludes that the party can comprehend the proceedings and assist counsel in any meaningful way, the party cannot be involuntarily excluded regardless of prejudicial impact; in such a case, cautionary instructions will protect the interests of the defendant in a fair trial.”⁷

The real problem created by a severely injured plaintiff’s attendance in court is not related to sympathy—in fact, it is quite the opposite. Most jurors react with distaste to the brain-damaged or grossly disfigured plaintiff. They may involuntarily turn away in disgust or embarrassment, or they may believe that your client’s situation is so hopeless that no verdict can possibly help.

You must counter these natural, human reactions by showing jurors that your client can adapt and live productively. Jurors must observe the plaintiff to learn how he or she functions in daily life and interacts with family and care providers, and to determine that he or she is trustworthy.

In addition to citing supportive case law, you can improve your chances of avoiding exclusion by proposing that the plaintiff attend only certain parts of the trial. You might recommend that he or she be present during jury selection; opening statement; testimony of the life-care planner, teacher, or other rehabilitation witness; and closing argument.

Seek permission from the court—preferably in the jury’s presence—for your client to be absent during potentially embarrassing testimony, such as that regarding poor neurological or psychological prognosis, reduced cognitive function, permanent disability, or disfigurement. This way, the jury knows that the plaintiff is excused for this part of the trial and understands the reason for his or her absence.

Experts and evidence
In addition to the nonverbal evidence that your client’s presence in court provides, you’ll need to offer testimony from caregivers, teachers, rehabilitation specialists, speech pathologists, or life-care planners who can explain your client’s abilities and describe the tools that can give him or her a measure of independence. These witnesses provide an excellent vehicle for introducing the plaintiff to the jury. Demonstrations of your client’s ability to communicate, learn, and perform basic skills can be an effective part of this testimony.⁸

For example, in a medical negligence case involving a plaintiff who was a bank teller before she suffered unattended cardiac arrest resulting in brain injury, a life-care planner testified about the plaintiff’s limited memory and cognitive losses. The expert also described how, despite physical and mental limitations, the plaintiff could be more independent and increase her participation in family and church life if certain tools were available to her.

This witness, a specialist in mainstreaming brain-injured patients, explained that she developed the plaintiff’s life-care plan based on home visits, interviews, and examinations. She demonstrated the basis for her assessments by inviting the plaintiff to come forward; introducing her to the jury; and then questioning her about handling money, asking her to make change, and posing a few sample cognitive queries.

The witness then explained the significance of the plaintiff’s responses. The entire demonstration took only 12 minutes, and it offered compelling evidence that could not have been conveyed as effectively any other way.

Defendants sometimes object to this kind of testimony, claiming that it uses the plaintiff as “demonstrative evidence.” Most sophisticated courts have rejected this view. For example, in Talcott v. Holl, a Florida appeals court held that the brain-injured plaintiff was entitled to be present in the courtroom, even if she was there only to illustrate the expert’s testimony about her condition.⁹ It noted that a doctor may ask a plaintiff questions to show his or her inability to speak normally and may instruct the plaintiff to attempt certain motions to demonstrate his or her limitations. The court held that the scope and admissibility of such demonstrations is within the trial judge’s discretion.

Recently, the First Circuit, in Rubert-Torres v. Hospital San Pablo, Inc., found that the plaintiff’s physical appearance had evidentiary value in itself and provided a foundation for the testimony of three opposing experts.¹⁰ The trial judge had barred 21-year-old Kimayra Rubert-Torres, who was severely brain-injured at birth, from the courtroom. During trial, experts for both sides testified that they based their causation opinions largely on some of her physical characteristics. Her lawyer asked that she be allowed in the courtroom so her expert could demonstrate the physical factors significant to his opinion. The trial judge denied the request.

After a lengthy analysis of the evidence, the First Circuit reversed:

Clearly, the evidence was highly relevant. As has been explained, experts for both Rubert-Torres and [the defendant] relied upon Kimayra’s physical appearance to make expert conclusions. They disagreed as to what they saw, and the resultant conclusions differed. While those experts were allowed to describe Kimayra’s appearance for the jury, the “clearest evidence” [of] her physical appearance would have been for the jury to see her, which is usually favored over mere description.¹¹

The court noted that even if the defense could show that the evidence was more prejudicial than probative—a showing it called “a difficult matter indeed”—the trial court could have found a less restrictive way to limit the potential for prejudice.

The First Circuit concluded, “Because the Federal Rules of Evidence favor the admissibility of evidence, less intrusive measures to minimizing the prejudicial effect of evidence are preferred to excluding evidence.”¹²

A different kind of interpreter
Trial lawyers have long appreciated that in death cases the decedent must “speak” to the jury without testifying—through photographs, films, and survivors’ testimony. Courts recognize that non-English-speakers must communicate through foreign-language interpreters. A case involving a catastrophically brain-injured plaintiff is analogous, and arguably the same concepts apply.

A compelling example comes from a Michigan divorce case, Bednarski v. Bednarski, in which both parties were deaf.¹³ The trial court appointed only one sign-language interpreter to cover all aspects of the proceedings. After the court awarded custody of the couple’s two children to their paternal grandparents, the wife appealed, arguing that she was denied the opportunity to participate fully in the custody hearing.

The court cited the state’s Deaf Persons’ Interpreters Act, which defines three functions for interpreters in legal proceedings: “to interpret the proceedings to the deaf person, to interpret the deaf person’s testimony or statements, and to assist in preparation of the action with the deaf person’s counsel.”¹⁴ The court found that the single interpreter had not adequately performed all three functions:

Since the sole interpreter was occupied with interpreting testimony of the various witnesses, defendant, when not on the stand herself, was unable to ask questions or otherwise communicate with others, including her counsel, during the course of trial. Moreover, the record is completely devoid of any evidence that an interpreter was involved with defendant and her counsel in the preparation of the action.¹⁵

To remedy the “unfairness” of the proceeding, the court ordered a new trial to determine custody.¹⁶

The Bednarski decision supports the argument that, like deaf litigants, neurologically impaired clients are entitled to meaningful participation in their cases. Use it to persuade the court to admit evidence from experts and other witnesses who can “interpret” for your client, providing the proof jurors need to form a more complete picture of the plaintiff’s life and ultimately find in his or her favor.

Remember that you are the plaintiff’s first interpreter: You recognize the limitations, losses, and changes in your client’s life and “translate” them into evidence of negligence, causation, liability, and damages. Then, you work with others to effectively communicate these proofs to the jury.

For example, a plaintiff’s coworkers can describe his or her job responsibilities and competence levels before the injury, compared with skill levels or limitations since. The plaintiff’s therapist knows how far from normal your client’s anatomical function is and can explain the extent of his or her efforts toward rehabilitation. These witnesses testify not to elicit sympathy, but to provide solid evidence.

Without a right to present proof effectively, the right to a jury trial is an empty promise. Jurors need both verbal and nonverbal evidence—witness testimony and their own observations—to render a just verdict. A brain-injured plaintiff must not be relegated to the courthouse corridors. His or her presence in the courtroom reminds us that justice extends not only to the fit and strong, but to all.

Notes
1. 611 N.Y.S.2d 655, 656 (App. Div. 1994).

2. 25 Cal. Rptr. 2d 667, 675 (Ct. App. 1993); see also Bremner ex rel. Bremner v. Charles, 821 P.2d 1080, 1086 (Or. 1991) (en banc), modified, 832 P.2d 454 (Or. 1992) (en banc).

3. 315 F.3d 680, 682 (6th Cir. 2003).

4. Id.

5. 766 F.2d 208, 216 (6th Cir. 1985).

6. 562 F. Supp. 759, 768 (E.D. Pa. 1983), aff’d, 727 F.2d 1100 (3d Cir. 1984).

7. 766 F.2d 208, 218 (emphasis added).

8. See Randy R. Koenders, Annotation, Permissibility of In-Court Demonstration to Show Effect of Injury in Action for Bodily Injury, 82 A.L.R. 4th 980 (1990); L.S. Tellier, Annotation, Propriety of Permitting Plaintiff in Personal Injury Action to Exhibit His Person to Jury, 66 A.L.R. 2d 1334 (1959).

9. 224 So. 2d 420, 421-22 (Fla. Dist. Ct. App.), cert. denied, 232 So. 2d 181 (Fla. 1969).

10. 205 F.3d 472 (1st Cir. 2000).

11. Id. at 479.

12. Id.

13. 366 N.W.2d 69 (Mich. Ct. App. 1985) (per curiam).

14. MICH. COMP. LAWS §393.503.3(1) (2004).

15. Bednarski, 366 N.W.2d 69, 71 (emphasis added).

16. Id. at 74.

As published in Trial Magazine, January 2005 Volume 41, Issue 1.

US Consumer Product Safety Commission monitors dangerous consumer products and formulates standards and assists in recalls of dangerous products. In the last fiscal year Sept 2009 to Sept 2010 CPSC has recalled 44 toys as causing injuries or deaths. Through its 1750 subscribing Emergency Departments throughout the country electronically connected to the NEISSystem of CPSC 12 deaths related to dangerous toys.

This year’s WATCH 10 list of dangerous toys includes:

1. Classic Sport Super Bounce Pogo Stick: aluminum rivets on the pogo stick’s frame tubes can break and cause the support clamp to detach and release the spring, posing fall and laceration hazards to consumers. Made by Classic Sport Super Bounce Pogo Sticks: Sportcraft Ltd., of Budd Lake, N.J.

The pogo sticks are silver and blue with “Classic Sport” printed on the front. This recall involves pogo sticks manufactured in February 2010 that have Sportcraft identification number 4112777F19414-02/10 printed on a tracking label on the base of the foot pedals.

2. Play with Your Veggies by Edusafe: Fabric vegetable toys BUT the asparagus as sold contains wire that pokes through the fabric and wound child’s face, gums and eyes. The manufacturer instructs that consumers should return the asparagus and they will receive a redesigned asparagus without the wire.

3. Baby Play Zone Crawl ‘n Cruise;
Baby Play Zone Crawl ‘n Slide Arcade;
Baby Play Zone Gymnastics Play Wall;
Ocean Wonders Kick and Crawl Aquarium

These toys all feature inflatable balls that can detach. The balls suffocate infants and small children, and the valves from the balls fall out or can be chewed out and choke toddlers.

4. Buzz Magnets
Potential for choking and internal injuries – Price: $6.09

WATCH notes that this toy, which contains “polished, high-powered, oval shaped magnets,” can cause severe internal injuries if the magnets are swallowed by a child. The magnets were sold on Amazon.com.

5. Kung Fu Panda Sword of Heroes
Rigid impact injuries – Price: $7.98

This toy sword, based on the popular Kung Fu Panda movie, is made of rigid plastic and can cause serious injuries if it makes impact with a person’s face, or other areas, according to WATCH. The toy was made by Mattel and sold at Toys R Us.

6. Ballzillion Tug Boat Play Center
“injury or death” although it looks like a flotation device it is not an adequate flotation device and will drown kids; Price: $29.98

Despite the fact that this inflatable tugboat is advertised for indoor and outdoor use, and features a photo of a child standing on the toy, the packaging states that it is “not intended to be used as a flotation device” and advises that children not stand on the tugboat, adding that failure to follow the instructions could result in “injury or death.” It was sold at Toys R Us.

7. My First Mini Cycle
Danger of falls, head injuries, uncontrolled rides into traffic; Price: $14.97
WATCH notes that this plastic mini cycle, which is marketed for toddlers as young as 18 months old, sits so low to the ground that it can create a fall hazard if used outdoors. Has no brakes. Also, despite the fact that the toy instructions say that the toy requires the use of a helmet, the child pictured on the box is not wearing any safety gear. It was sold at Toys R Us.

8. Giant Starbuilder & Giant Stars
Plastic star shaped interlocking “building” toys Price: $25-35
These bright colorful star-shaped building blocks have knobs on the ends that break off and cause choking, suffocation.

9. Little People Wheelies Stand ‘n Play Rampway
Stand up pathways for small cars to travel down Price: $45

The little cars that are placed on the “rampway” to race down are the dangerous parts with this toy: the wheels fall off and are easy to chew, swallow and cause choking and suffocation.

10. Click Armband Bracelets, Klick-klick Balls & Bobo BallsBright tubes with balls on the ends click together, wrap around arms; Price: $2-5

The small brightly colored balls on the ends of the tubes easily break off and can be chewed off becoming choking and suffocation hazards because the material is thin.

Examples of some dangerous toys recalled in the past but that might show up on E-Bay are:

• TOYS given in Kid’s meals: such as “Pokemon Balls” (25 million) distributed in Burger King kids meals in November and December, 1999 were a suffocation hazard to children under 3 years of age if either half of the ball gets stuck on the child’s face, covering the nose and mouth. A 13-month-old girl and a 4- month-old boy reportedly suffocated when one-half of a Pokemon ball covered the nose and mouth. In addition, CPSC is aware of several non- suffocation incidents.
• And “KFC Tangled Treeples Toy” (425,000) distributed in KFC kids meals in June and July, 2000. suffocation hazard to children under 3 years of age. A 19-month-old girl reportedly had the Tangled Treeples container stuck over her face, causing her distress.
• “Fazoli’s Pasta Pals” (310,000) distributed in Fazoli’s kids meals from January to August, 2000. The container can fit over a child’s nose and mouthas a suffocation hazard to children under 3 years of age.
• Scooters: “Kent Kickin’ Mini-Scooters” (90,000) sold from May 2000 through September 2000 and “Kash ‘n Gold Racer X20 Scooters” (7,500) sold from August 2000 through September 2000. The Kent scooter handles can unexpectedly come out of the steering column, causing the rider to lose control, fall, and suffer injuries. Four children have suffered injuries, including broken arms, bruises, abrasions, and a cracked tooth. Call Kent at (800) 451-5368 for a replacement handlebar. The Kash ‘N Gold scooter has a plastic “T” joint between the handlebars that can break, causing the rider to lose control, fall, and suffer injuries. Two children suffered injuries. Return the Kash scooter to the store for a refund or a new scooter with a metal “T” joint.
• “Toy Basketball Nets” (11 million) sold between 1976 and 1998 can strangle children on loops or openings in nets that come unhooked from the rim or have knots that slide. CPSC is aware of more than 20 reports of children under 5 years old whose head or neck caught in the net of a toy basketball set, and an 18-month-old child died after becoming entangled in a partly unhooked net. People should remove and throw away nets that can unhook or have knots that slide. Call the manufacturer to get new nets that securely attach to the rim and do not have sliding knots.
• “Wiggle Waggle Caterpillar” (1 million) sold from 1998 through 2000 from Child Guidance presents a choking hazard because of small balls attached to these toys. CPSC has received one report of a 5-month-old girl choking to death after one of the small balls attached to the toy lodged in her throat. CPSC also received reports of two children who started to choke on the ball from this toy. Call Child Guidance at (877) 586-1006 for information about sending back the toy to receive another toy of similar value.
• Battery-powered toy riding vehicles (500,000) sold by Tek Nek Toys, Empire Industries and Fisher-Price from 1995 through 2000 depending on model. Battery charger can overheat presenting a fire hazard (Tek Nek, Empire), or foot pedals can stick in the “on” position and children can be injured when vehicle fails to stop or strikes other objects (Fisher- Price motorcycles).
• “Leapfrog Alphabet Pal” (500,000) electronic pull toys sold from June 1999 through November 2000 by Knowledge Kids Enterprises Inc. have a red plastic connector on the pull string that can be pulled apart, and the end pieces pose a choking hazard to young children. The company received nine reports of the red plastic connector detaching, but no injuries were reported. Cut the red plastic connector off of the strings on this toy. Call the company at (877) 477-6641.
• ZEBRA beebee gun with hard rubber pellets blinding
• EASY BAKE child’s oven used a high intensity light bulb and oven surface heated hot enough to burn flesh.
• Power Wheel Motorcycle up to 40 mph falls, impacts and burn injuries

As can be seen from both of these lists, the chief cause for dangers in toys is not the design, but the low-quality materials. When buying toys, examine the toy for the following three conditions that constitute the most frequent causes of injuries and death to children:

1. Toxic paint or dye, especially lead;
2. Small parts that easily break off;
3. Weak areas in the design where the toy can break into sharp cutting edges.

Toys can be fun, entertaining and educational, but we want to inspect them carefully to make sure they’re not lethal.
For more information about dangerous toys and hazards to watch for go to www.cpsc.gov and to www.toysafety.org.

by Linda Miller Atkinson as published in the May 2007 issue of Trial Magazine.

Physician assistants and nurse practitioners are common in health care facilities. But how much responsibility do they have? If a patient is injured, you need to find out who the midlevel provider, the supervising doctor, the facility, or all of them-is responsible.

Once upon a time, a person seeking medical care walked into a doctor’s office, hospital, or clinic expecting to see a  doctor who would perform the examination. Not anymore. Most patients seeking primary care today will leave the  office, clinic, or hospital without ever being seen by a doctor. They will be examined, possibly get some tests and even a prescription or two, and bed is charged with instructions from a midlevel provider. The role of physician  assistants and nurse practitioners-collectively called  midlevel providers-in health care is growing. Once they gained  statutory recognition and licensing, their ranks expanded to meet patient needs for health care-particularly in  primary care, where physicians have become scarce. Health care facilities save money by employing midlevel  providers to see patients in place of doctors, because the physician can bill for supervisory functions and still see and treat other patients.’

Read the full article by clicking here.

Detroit Legal News, July 15, 2005

By:       Linda Miller Atkinson and Todd Smith

There has been lots of talk recently about the issue of medical malpractice verdicts and settlements, in which a jury or judge provides compensation to victims injured by a negligent doctor, abusive nursing home, insurance company that refuses to pay for treatment, or a drug the pharmaceutical industry knew was dangerous.

Insurance and health care companies claim that these costs are rising, thereby increasing premiums rates and discouraging doctors from practicing medicine.

These corporate interests have been lobbying hard at the state and federal levels to restrict the rights of judges and juries to hold those who harm you or your family accountable “Capping” compensation for the most serious injuries, insurance companies argue, is a magical cure-all that will help lower premium rates.

Except there’s one glaring problem: a steadily increasing number of independent studies have found that malpractice claims are far from skyrocketing, and limiting compensation for the most severely injured patients doesn’t actually lower insurance premiums.  Instead, doctors are being price-gouged by insurance companies.

Last month, four new studies received widespread media attention because of their findings.  It’s important that consumers know the facts in this debate, because these efforts to limit the rights of patients may have far-reaching – and likely disastrous – effects on millions of American families and on the safety of the health care system.

For example, studies published by the Kaiser Family Foundation, the online journal Health Affairs, and the Journal of the American Medical Association concluded that:

• Contrary to ads and statements made by insurance industry, medical malpractice claim payments increased a mere 1.7% per year between 1991 and 2003 (after adjusting for inflation), and have actually fallen an average of 2.4% per year since 2001.
• Malpractice claim payouts increases actually slowed to 1.6% a year from 2000 to 2003 – below the rate of inflation.
• Those “jackpot” awards touted by opponents of the legal system are virtually non-existent:  96% of malpractice cases in 2003 were settled out of court for an average $257,000.
• Escalating insurance premiums, as many economists have pointed out, are likely due to malpractice insurance companies raising rates to compensate for falling investment returns since 1998.
• Doctors aren’t disappearing.  The number of doctors in every state has increased almost 30% throughout the nation, from 497,140 in 1985 to 709,168 in 2001 – even in states with no malpractice award caps.
• Researches found scant evidence that physicians are leaving one state for another with malpractice award caps.  Compared to so-called “no-cap” states, counties in the 27 states with a cap on jury awards for medical negligence and pain and suffering had only 2.2% more physicians per capita.

If malpractice claims aren’t increasing, and the number of doctors is in fact growing, then the larger question is, why are insurance companies pushing so hard to take away our legal rights?

That’s a question that President Bush and Congressional leaders should ask the insurance industry lobbyists.  Currently, four new bills being considered in Congress – H.R.534, S 354, S 366, and S 367 – would severely limit the ability of patients to hold bad doctors, nursing homes, HMOs, and drug companies accountable for crippling and deadly mistakes.

Medical errors kill more than 98,000 Americans every year.  History and thorough research show that restricting the rights of people injured by medical negligence devastates patients and their families, but does nothing to lower malpractice insurance rates.  Even insurers refuse to promise rate reductions if Congress passes these bills.  And when states have enacted similar laws, insurers have continued to raise rates.

What’s at stake in this debate is justice for those hundreds of thousands of Americans injured or killed by medical negligence.  What these recent studies and many others prove is that we need legislation focused on improving patient safety, reducing dangerous mistakes, and lowering insurance premiums for doctors – not more false rhetoric and favors for the insurance industry that only harm patients.

Linda Miller Atkinson, president of the Michigan Trial Lawyers Association and partner at the  law firm of Nelson, Petruska, Atkinson & Hart, P.C. and Todd A. Smith, president of the Association of Trial Lawyers of America is a partner in the Chicago, IL, law firm of Power Rogers & Smith.