As a general rule, I do not choose to preach about the benefits that lawsuits serve for the greater good in society. This is because my practice tends to focus on cases for individual plaintiffs and I find the personal side of injury law to be the most engaging aspect of helping hurt people recover for their injuries. Recently, several bike advocates have urged me to talk about the reluctance of many people to pursue cases in the legal system. My own view is that when people are afraid to use the legal system for legitimate cases it means that public distortion campaigns by representatives of wrongdoers have been successful — a real shame. Imagine a court system in which representatives of criminals scare people away from calling the police; when the courthouse door is barred by those who seek to avoid scrutiny in the courtroom then everyone suffers.
Companies that have reputations and resources to lose routinely devote considerable resources to promoting the view that courthouses are staffed by greedy lawyers, incompetent judges, and gullible juries. While the court system sometimes provides ample basis for all of these conclusions (filled as it is with people possessing normal human failings), for the most part these public relations attacks are unfair. A recent example are the so-called “Stella Awards” which purport to be awards for wacky jury verdicts giving people windfalls for ridiculous and undeserving cases, named for the McDonald’s coffee plaintiff who received a $2 million dollar punitive damage verdict after being burned by scalding hot coffee. One day after reading about these awards in an e-mail, I traced their origin on the Internet back to a California tort reform promotion group. “Tort reform” is another one of those terms created by a sophisticated anti-court system attack plan that has been very effective in shaping public opinion. The Stella Award case examples have been subjected to scrutiny by a number of consumer and law groups and identified as either outright fabrications or grossly distorted accounts. Undermining public confidence in the jury system is the real reason the whole campaign was created.
The current so called “crisis” in malpractice insurance rates is only the most recent repackaging effort for these periodic attacks on the court system that have occurred over the last two decades. Just as attack ads in political races tend to sway those voters who know the least about the issues, so the current wave of hand wringing and threats of a diaspora of doctors from the medical system in high litigation areas is designed to scare people who usually pay little attention to most news stories. The current “liability crisis” is just this year’s update on periodic attacks we have seen since they were initiated in the Reagan administration’s hayday. American’s political right has seized upon the anticipated fearful reaction by many Americans about being left without access to doctors in emergencies.
The payoffs of an effective campaign against the courts and juries is significant. Voters and legislatures are motivated to change the law to shift weight onto the corporate side of the scales of justice, leaving regular people with procedural obstacles and limits in their access to the court system.
Potential plaintiffs who are trying to decide whether they should use the courts receive a clear message from the tort “reformers” that there is something unseemly about using the court system whenever it is possible to avoid it.
There is considerable irony in a successful public relations campaign by wrongdoers that results in reluctance by victims to seek redress in court. Nevertheless, the chilling effect upon attitudes by potential plaintiffs toward court should not be underestimated. In my law practice, I see many bicyclists who are reluctant to make an insurance claim for injuries because they do not feel they are the sort of people who would resort to filing a lawsuit against someone. Many people who are accustomed to working out problems on their own use the legal system with an apologetic attitude; in close cases, they frequently give up even before making a claim, figuring that they were partially at fault in the accident so they will “just let it go.”
However, in Oregon’s legal system of comparative negligence, so long as the fault of the injured bicycle rider is no greater than the fault of the driver, the bicyclist still receives compensation for injuries, albeit reduced by his or her percentage of negligence. If the bicycle rider is found to be more at fault than the driver, then the bicyclist loses the case. However, almost every accident is the result of multiple factors, and riders should not be reluctant to press claims for injuries when only part of the accident is the result of their own mistake such as passing on the right or failing to signal a turn or stop.
The economics associated with the public relation attacks on the court system are significant. Currently the liability insurance “crisis” appears to be focused on medical malpractice insurance costs. While medical associations have resisted attempts to pass legislation requiring hospitals and medical providers to report life-threatening mistakes made by doctors and hospitals, the actions of a few bad doctors result in many unnecessary injuries to a customer base (patients) who find it increasingly difficult to act as informed consumers in evaluating the quality of medical service they will receive in advance of treatment.
Another factor is that medical malpractice insurance companies have failed to raise rates to make up for inflationary increases over the past ten years, when the strong investment market allowed insurance companies to underprice policies to gain market share. As the investment market declined, insurers’ reserves shrunk.
The economic recession that began last fall and then was greatly worsened by 9/11 hurt insurance companies, not through claims, but through poor performance of investments. Now federal and state governments are decreasing reimbursements. For example, the Oregon Health Plan has cut reimbursements, and Medicare/Medicaid is cutting reimbursements as well. The result is a squeeze on payments to doctors who now feel like they are under siege from higher insurance costs combined with lower government support payments.
It is illuminating to see the connection between a worsening world economic picture and the simultaneous repackaging of the attack on the court system by insurance companies. The trade journal “National Underwriter” reported late last year that insurance companies have restructured and taken charges to load up reserves. Financial guru Warren Buffett remarked that the insurance industry created its own misery with “past underwriting mistakes and by under-reserving.” The consequences have been broad, but because fear of being caught without available medical services is so close to our hearts (literally), news reports focus on restrictions on medical malpractice insurance availability. However, while St. Paul Company attracted major headlines for dumping its medical malpractice business, the company’s decision to drop out of bond and credit reinsurance policy writing and casualty and reinsurance business abroad attracted little attention. Rates are going up because too many companies were shortsighted and depended on investment income in a strong market to keep prices low. Donald Zuk, President of a Los Angeles-based insurer told the Trade Journal Medical Economics in July, “Now, the chickens have come home to roost.”
Bicyclists are in the position of being an embattled minority on the roadways. Our low numbers and small size combine to make resort to court a necessary resource if we are to obtain fair redress. Victims of motorist harassment and negligence need to have access to the courthouse. Jury bashing and “tort reform” movements are part of a widespread public relations campaign to allow wrongdoers to escape the consequences of their own misconduct. It is important that bicyclists continue to pursue their legal rights in court without being intimidated by unsubstantiated claims of lawsuit abuse.