Archive for the ‘civil justice system’ Category

Court fee increases threaten middle and low-income Oregonians access to civil justice system

The Oregon budget crisis created a number of problems and many are still coming home to roost. Now the bill has come for the civil justice system.

Effective yesterday, the Oregon Judicial Department implemented new fees for filing lawsuits and routine court matters. Here’s a report in today’s Oregonian.

The new fee system is confusing, in that it’s hard to calculate how much it costs to file a lawsuit. Filing fees morph and shift based upon the amount of money at issue in the case, the number of plaintiffs (people suing) and the number of defendants (people being sued).

The reality is that the new fee increases will have profound impacts, including:

  • For middle- and low-income Oregonians, a day in court will become an unaffordable luxury
  • For attorneys representing people, risks of missing deadlines because fees weren’t paid on time and filings were rejected
  • For attorneys handling contingent fee cases: limiting representation to affluent or limiting who can handle these cases to affluent attorneys who can afford the increased fees
  • For our beloved Oregon, doling out justice based on ability to pay.

It’s that last one that rankles me. Look, it would have been easy to limit my work to rich clients. There’s nothing like the smug security of having corporate clients who pay by the hour for talent.  You get paid as you go. No pay, no go.

But some of us chose a different route because we were committed to a view that justice shouldn’t be limited to corporations that have the money to pay for expensive law firms. For those of us who heard and heeded the different drumbeat, we found ways to answer the call by working on contingent fee cases or finding our way to public interest jobs. That’s how Oregon consumers find skilled and capable representation.

These new fees will make it harder to handle cases.  In addition to higher filing fees, we now have a pay as you go system. Want to file a motion? Pay another filing fee. Need a judge to sign an order? You’re going to have to pay for that. We’re going to wind up in a system in which only the affluent can afford to go forward. Those without means or a very affluent attorney who can front all costs will be turned away.

Some of my colleagues want to blame the Oregon legislature and the Oregon judicial branch for turning to this model of paying for access to justice. Sorry, but it’s not that simple. The reality is that Oregon has suffered mightily in this massive recession and our tax base that relies heavily on income taxes has eroded with the profound increase in unemployment. We lack political will and wisdom to understand that public goods like education, clean water and a civil justice system cost money. That means taxes. It is popular to bash politicians and more so to oppose taxes. All that is well and good and easy. Until you need the cops. Or good schools. Or your day in court.

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Patient safety lost in health care debate

Lots of noise going back and forth about health care reform, but one issue, which is the elephant in the room, is getting little coverage.

Back in 1999, the Institute of Medicine issued this report on the horrifying death toll caused by preventable medical errors. “Horrifying” isn’t over the top. We’re talking about 44,000-98,000 hospital deaths per year in U.S. hospitals caused by preventable medical errors. You would think those kinds of numbers would lead to instant action and a reduction, but the problem has gotten worse.

Kudos and appreciation to the Hearst news organization for an update. Unfortunately, it shows that 200,000 per year die from preventable medical errors. States, including Oregon,  have refused to pass mandatory hospital safety reporting laws.  Apparently, no one thinks that mandatory reporting of  preventable medical death information would change hospital practices.

The Oregonian ran with the story in its Saturday edition, but they somehow decided to leave it off of their website. That’s a shame, as they did a detailed local breakout.

So now we’re talking about health care reform. But for all the heat and light and jabber about government programs, single payers, “death panels,” and the like, no one is talking about reducing preventable medical harm.

So the better question is what about that elephant?

Why do we allow people seeking health care reform to demand limits on lawsuits when they refuse to talk about quality of care? With this level of deaths, why do we tolerate people complaining about “defensive medicine?”

If the medical and insurance industries want to hide errors, the one thing that must remain untouched is the right to trial by jury. Otherwise, we simply have an elephant in the room that will stomp another 200,000 people next year with no consequences. We need to be able to hold the medical and insurance industries accountable. And if the government will take no action, the jury is the next best thing.

Next time someone complains about malpractice cases, the practice of defensive medicine or frivolous lawsuits, ask them about the 200,000 deaths per year. If that number is too big, let’s break it down. It’s well over 500 people per day dead from preventable medical errors.  Wow.

The Hearst news system’s reporting at Dead By Mistake is timely, substantive and informative. In short, this is journalism at its best.

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Early apology and compensation in medical error cases cuts costs

Here is a report on the positive benefits of an active apology policy in a large hospital system. This article reports on the experience at the University of Michigan Health System. It confirms what I’ve long suspected. By admitting errors, apologizing, and paying early compensation, the University of Michigan system has cut claim numbers and claim costs in half.

Wow! As an attorney who represents injured patients, I think this represents great news. While there’s a lot of talk radio heat about medical negligence cases, any attorney who has handled them will tell you a different stories. They’re tough and stressful cases for the patients and their families, not to mention for the lawyers. The medical liability industry has done a great job of digging in against legitimate claims. As a result, many claims with merit simply get turned away.

The other thing is that many patients simply want the one thing that the medical system won’t give them.  An apology is a powerful thing. But the medical liability industry has mistakenly concluded that apologizing is a bad idea. Talk about writing up an order for a lawsuit.

The U. of Michigan system provides a promising model. Maybe this really is an era of change?

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Oregon Supreme Court suspends Portland injury attorney Mike Shinn

The continuing saga of Portland injury attorney Mike Shinn is a sad one to behold. Here is a report from The Oregonian that the Oregon Supreme Court suspended Shinn this week for violating the court’s order. The court apparently ordered that Shinn not take money from his trust account while his disciplinary case is pending.

This is only the latest chapter on a story that’s been going for a while. Prior background here. I can’t help but have a heavy heart. The guy was a warrior who did all manner of great work for injured Oregonians.

Regardless of his great works, it looks like he’s crossed lines that should not be crossed. Let me be clear about what I mean. Assuming that the news report is accurate, he violated a court’s order and took money from his trust account that he was told not to take.

The first is bad because whether we agree with an order or not, Oregon lawyers are officers of the court who are bound by rules. Those rules include following court orders. If we disagree with an order, we seek review or otherwise appeal. Ignoring or disobeying a court order is a pretty serious matter that must have consequences.

Worse than that, the order focused on money in a client trust account. That’s client money, and an Oregon lawyer can only take it if the lawyer is legally entitled to do so. When  you’re not entitled to take money, doing so is a form of theft or conversion.

If he took client money, Mike has to go. No exception, no debate.

I have zero inside information about this, but I imagine that Mike Shinn is fighting with some major demons.  Even so, Oregonians have to trust that our legal system has integrity. That trust requires that the Oregon State Bar and Oregon Supreme Court take necessary steps to protect the public.

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Governor Palin discovers the need for an open civil justice system

I was taken by this 4th of July missive from Governor Palin’s attorneys relating to a claim for defamation. I know nothing of the statements or claims, but apparently Gov. Palin’s legal team takes issue with those who claim that Gov. Palin resigned because of a pending corruption investigation.

Like I say, I don’t know a thing about it and have no opinion about any of it. But what catches my eye is that Gov. Palin and her legal team are not bashful about resorting to the courts to assert claims for defamation.

I suppose that this is as it should be, but I can’t help but chuckle. I know that Gov. Palin has complained about too many lawsuits, frivolous lawsuits and the like many times over. Even so, she does not hesitate to threaten litigation when her ox is being gored.

I have no quarrel with her upset or the prospect that she might choose to sue. But let’s be clear that those who resort to the courts should have no basis to question others who do exactly the same thing.

In the case of Gov. Palin, defamation is a tricky claim. It requires proof of false statements. It also requires proof that the false statement caused injury to reputation. I have a hard time seeing how Gov. Palin could prove injury to reputation, even if the statements are false. But that, of course, is a question for a jury.

At bottom, I will forever more say, “Oink!” anytime Gov. Palin or her supporters criticize others who might seek relief through the civil justice system. After all, if it’s acceptable for Gov. Palin to use the civil justice system with what might be a questionable claim, the rest of us should not be hit with a higher standard.

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