Preserving Our Civil Justice System

There is a war waging in this country that has gone ignored for the most part over the last century. Like any war, this is a war for power and money at one end and justice and accountability at the other. This war has been characterized by the insurance industry and those aligned with their interests as a movement for “tort reform”, which seeks to erode the rights and liberties we are entitled to for just, fair and reasonable compensation.

Article 19 of the Maryland Declaration of Rights adopted in 1867 provides: “That every man, for any injury done to him in his person or property, ought to have remedy by the course of the Law of the Land, and ought to have justice and right, freely without sale, fully without any denial, and speedily without delay, according to the Law of the Land.” These rights were created as part of the social contract between government and people for a civil justice system where people could resolve their disputes without the resort to self-help and lawlessness.

With the advent of industrialism and the rise of capitalism at the turn of the 19th Century and in the early stages of the 20th Century, some law makers sought to balance and protect the interests of business with the rights of the public. As just one example, the worker’s compensation system was a result of this compromise between industry and labor unions. The assignment of “fault”, which is characterized with what a court of law usually decides, was eliminated in exchange for an administrative system that determines compensable work related injuries and appropriate compensation benefits. Employers were sold on the idea of a known risk and cost of doing business [largely in the form of insurance premiums] versus the unknown costs and results of jury awards. Even back in the early part of the 20th century the insurance industry launched marketing campaigns to convince the minds of business and industry that jury awards were out of control and harmful to business. Sound familiar?

In this latest chapter and in just about every state and at the federal level, interest groups serving the insurance industry have worked hard to convince lawmakers to place illogical, arbitrary and unjust damages caps on claims for such things as personal injury or death as a result of negligence by doctors, automobile accidents, and product liability claims to name a few. The argument always advanced by the insurance industry is that juries are out of control and exorbitant judgments are causing doctors medical malpractice premiums to rise over 300% and the like. The alleged justification for damages caps is that by reducing the amount a jury can award, costs of insurance premiums can be stabilized and affordable.

Unfortunately, more and more lawmakers have bought into tort reform over the last decade. What the research and data is showing however in most states is that despite the imposition of caps, the rates of insurance have still continued to rise at an alarming rate and the insurance industry is continuing to rake in unprecedented profits despite so called “catastrophic losses” like Hurricane Katrina and a slew of hurricanes that hit the US coast in 2004.

There have even been proposals to limit victims of medical malpractice from access to the civil courts and towards a system similar to worker’s compensation where claims are filed with a “health court” where many of the rights afforded civil litigants in a court of law simply don’t exist. The unfortunate casualties of special interests ends up being health care providers who are squeezed for exorbitant medical malpractice insurance premiums, a health care system where medical decisions are indirectly being made not by doctors but by insurance bureaucrats and the consuming public whose lives and wellbeing are again like 100 years ago, the last consideration.

The Maryland Trial Lawyers Association has worked hard to educate the public about the importance of preserving our civil justice system and ensuring that lawmakers pass good law or block bad law. With the changing political climate in Maryland and in the US Congress, there is great hope that the erosion to our civil justice system will not only be prevented but reversed towards protecting the public. I submit to you that the days of “tort reform” are coming to an end and we are moving forward towards “insurance reform”. You the public have the power to vote and ensure lawmakers preserving our civil justice system are placed in office. You have already spoken in 2006 and I urge you to do so again in the coming elections in 2008.

Gabriel A. Riveros (Coover & Barr, LLC, Columbia) received his J.D. from the University of Miami School of Law. He is a member of MTLA’s Auto Negligence, Medical Malpractice and Nursing Home Abuse sections and can be reached for comments or questions at [410-997-7600] or griveros@cooverbarr.com.

Walk This Way

Cross walks were invented for a reason: If you are a pedestrian, take advantage of the “right of way” legal status you hold when properly crossing in a cross walk otherwise you may recover no compensation for what often times are serious injuries even if the car that hit you was also negligent. Why would you place your trust that a complete stranger will: (1) see you in time; and (2) slow down or stop to avoid hitting you as you cross the street? If you are one of those people who truly believes that the world revolves around you and that your mere presence in public should cause all traffic to stop in awe of your majesty and glory, than you are probably in for a rude awakening.

You should cross at a properly designated cross-walk. If the cross walk has a pedestrian signal device you should start your cross when the pedestrian signal indicates it is appropriate to do so [i.e. white “walk” or walking person illuminated] and with enough time to do so safely. If the cross walk does not have a pedestrian signal device but the intersection is controlled by traffic lights, you should be mindful of whether the road you are crossing has a red, yellow or green light and only cross when oncoming traffic in both ways is stopped for a red light. You should regardless of right of way always look both ways [i.e. at a minimum looking left, right and left again]. Many of us remember this last instruction from when we were kids and painfully reminded by our parents, aunts, uncles, grandparents or older siblings when we didn’t follow this rule.

Most people, yours truly included in that group before he became a lawyer, don’t appreciate the risks and sometimes catastrophic consequences we place ourselves in when we cross a road at some middle point and don’t use a cross walk. Pedestrian versus car or truck accidents can and often times do result in serious long term injuries. When you take a human body and place it in front of a car or truck traveling at even slow speeds the odds of walking away with little or no injury is very low. We all do it; it is for convenience sake right? Why walk the extra 50 or 100 feet to the intersection cross walk when all you have to do is cross and no traffic is coming anyways.

Next time you do that, all I ask is that you pause and think [not in the road either]: Are the benefits worth the potential risk you are about to assume by crossing at an undesignated part of the road? What are the benefits? Convenience mainly; being in a hurry; too lazy to walk a little bit further; I looked both ways and I have time to cross before those cars down the road come close enough; I don’t see any cars so nothing is going to happen to me anyways right?

What are the risks? To name a few: Death, catastrophic and permanent injuries which can include severe brain damage, coma, fractured skull & bones, spine injuries, loss of use of your arms & legs, and permanent disfigurement. This doesn’t include the out of pocket costs to you from medical bills for treatment to lost income because you were not able to work which carry less visible but just as real injuries impacting your life. How are you going to pay rent or a mortgage if you can’t work? What burden have you placed not only on yourself but on loved ones that become your care takers? What plans or goals in life did you have before that now take on a complete new meaning? Who is going to pay for all this?

Most states follow what is called “comparative” negligence, which means that degrees of negligence are taken into consideration and even if a plaintiff is shown to have comparative fault for his or her own injuries, they are still allowed some recovery reduced by the percentage of fault attributed to their actions. For example, if as a pedestrian you are found to be 25% at fault for the accident, than any award for compensation entered for you would be reduced by that 25% where the other negligent party was 75% at fault.

Maryland and D.C. however are still two of only 5 states that are still stuck in the 19th century and follow what is called “contributory” negligence. This means that if you contributed at all, even just 1% to your own injuries, you may be forever barred from collecting any compensation even if the vehicle that struck you was 99% negligent. This is a harsh result, and especially in pedestrian accidents where someone died or suffered severe injuries. There have been and currently are calls from the Maryland Trial Lawyers Association, among others, to our legislators to change this absurd law. It is a very sad part of what lawyers like myself hear all too often about when the family of the injured call us looking for some hope and answers. You can’t always avoid the risk that you will be struck by a car or truck when you are walking across the street, but an ounce of prevention is worth a pound of cure.