Blog Archive

Patient's Rights to Know Not as Diluted as The Herald Suggested

This past Sunday, the Miami Herald published a story about Florida's "Patient's Right to Know" law.  Click here for The Herald story.  The law, passed as a constitututional amendment in 2004 and known as "Amendment 7," allows Florida patients to access records of "adverse incidents" at Florida hospitals.  Sure, hospitals have fought the law and sought to obstruct patient access to these records, and many hospitals are now much more circumspect in what they put in writing after an adverse incident has occurred at their premises.  But since Amendment 7 was passed, Florida courts have uniformly recognized the patient's right to obtain records.  This right is especially powerful when the patient is seeking the "inside story" about his or her own case.

Give 'Em Hell Carlos! Representative Lopez Cantera's Courageous Stand

Three cheers to Carlos Lopez Cantera, a Florida state representative and Republican majority leader, for his bold confrontation of the University of Miami School of Medicine.  Last May, the University of Miami, a private entity, persuaded the Florida legislature to do something unprecedented (and probably unconstitutional!): it granted sovereign immunity to the University of Miami due to its relationship with the Public Health Trust.  Already a recipient of sovereign immunity when its doctors were acting exclusively in their capacity as Public Health Trust agents, now the University has sovereign immunity even when it treats private patients for private dollars and is not engaged as an agent for the Trust.  Representative Cantera states that the justification for the immunity was the University's promise that it would share the savings it realized from the newfound protection with the ailing Public Health Trust. Turns out, according to Representative Lopez Cantera, that the University of Miami has no such plan. 

A Co-Equal Branch: The Judiciary's Only Place is an Equal Place

My 7th grade daughter is studying Marbury v. Madison, the first time the United States Supreme Court declared an act of the legislature unconstitutional.  It is a seminal case in the history of our democracy as it was the first time the theory of three, co-equal branches of government became reality.  Ironically, in that case, the Court struck down a law that itself provided power and authority to the Court that the Court determined went beyond the reach of Article III of the United States Constitution.  The Court, by declining the legislature's grant of power in that case, established itself for all time as a branch of government equal in strength to the other two.

Damage Caps Challenged in Missouri Supreme Court

The constitutional battle over damage caps is spreading across the country.  The most recent battle is in the Missouri Supreme Court.  Previously, in a Missouri trial court, a Missouri citizen jury awarded $9.2 million after a doctor was found responsible for the wrongful death of a wife and mother. The money awarded to Ronald Sanders and his daughters was reduced to $1.2 million based on a cap passed by the legislature.  Now the Missouri Supreme Court will determine who should decide damages.  Elected politicians who hear no evidence in a case or citizen jurors who immerse themselves in the facts for weeks?   Our Founding Fathers believed in trusting the American citizenry with things like jury duty and voting.  Since then, powerful interests like big corporations, drug companies, insurance companies, doctors, and hospitals have fought hard to limit or even eliminate the power of the American juror.  

Mississippi Yearning: A Twist in the Damage Cap Challenge

Turns out the Mississippi Supreme Court has asked for supplemental briefing in the Sears Roebuck & Co. v. Learmonth appeal.  This is the case where Lisa Learmonth was injured by a negligent Sears driver.  A Federal Jury awarded her $4 million.  But the jury did not apportion the damages as between economic losses (wages, medical expenses) and non-economic losses (mental anguish, disability, loss of capacity to enjoy life, pain and suffering).  The latter damages, non-economic losses, are capped in Mississippi at $1 million.   The evidence of economic damages totaled $1.8 million.  So, Sears and Ms. Learmonth stipulated in federal court that the non-economic award was $2.2 million, and because Mississippi caps those damages, the trial court reduced that component of the award to $1 million, the amount of the cap.  Then, Ms. Learmonth appealed the reduction on the grounds that the cap is un-constitutional.  The case was fully briefed and argued to the Mississippi Supreme Court last June.  Now the Court wants clarity: why should it accept the stipulation that the non-economic jury award exceeded the statutory cap?  It asked Sears to submit its brief by October 17, 2011 (last Monday).  

Why?

Why do we do what we do?  Why are we a law firm?  Why are you doing whatever it is you do?  This is the essence of your firm's existence, its reason for being.  And it is what sets you apart from others who do the same type of work, or operate the same type of business, that you do.  A lecturer at TEDx, Simon Sinek, argues that The Why is where the secret to our success is located.  Check out the You Tube video here. For Ratzan Law Group, our why is this: We believe in giving a powerful voice to those who would otherwise have none.  We believe in seeking and speaking the truth. We crave justice!

The Folly of Damage Caps: More Evidence

Public Citizen, a group devoted to studying these sorts of things, provides more evidence of the folly  of damage caps.  If the movie Hot Coffee did not close the deal, a recent analysis of Texas' medical malpractice reform should.  Click here to read more.  "Tort Reform" was probably the most cynical American political construct since McCarthyism.

Amanda Knox and the Meaning of Justice

Amanda Knox was freed from the hold of the Italian penal system yesterday.  Hers was a battle for justice, a testament to perseverance, and a reminder of how imperfect human justice can be.  Her case sends us a message, loud and clear: given our imperfections as people, we must remember to build a justice system that does all it can to protect us from those imperfections.

The Justice Gene: Why Become a Trial Lawyer?

With all the career options out there, why become a trial lawyer?  There are abundant types of law practice, and there are plenty of careers outside the law, so why choose the life of a trial lawyer?  It is a demanding life, rarely if ever offering an easy route. For a true trial lawyer, I am not sure there is ever an option.  It is a calling, not just a career.

Louisiana Redux: Another Louisiana Court Finds Medical Malpractice Damage Caps Unconstitutional

Louisiana is busy fixing a broken system.  This is proof that a bad law, a law that is contrary to the best of American constitutional principles, can be defeated in our justice system so long as you are patient.  The law, on the books for 36 years, caps damages at $500,000 for the most catastrohically injured victims of medical neglect in Louisiana.  Now, in the Oliver v.

Parents of baby with severe birth defects win at trial. Jury awards $4.5 million.

Congratulations to Jason Weisser and his clients in this challenging case.  Florida law provides that negligent prenatal care can subject health care providers to liability for "wrongful birth" in cases like this.  So, if a doctor or other health care provider neglects to inform the parents of a birth defect and the defect would have resulted in the parents' decision to terminate the pregnancy, the parents can recover for the extraordinary costs and expenses of providing for the needs of the child.

David Cowles is a courageous man. We are proud to be his attorneys.

David Cowles suffered third degree burns in a massive gas station explosion in St. Augustine last month.  He is a courageous man and we are proud to represent him. Click here for a recent news story and video.

Louisiana on the right track: Court rules damage caps unconstitutional

In a much anticipated ruling, a Louisiana court ruled today in Arrington v. Lake Area Medical Center that medical malpractice damage caps in that state are a violation of the state constitution.  The case has been through the system once already, and now will go directly to the Louisiana Supreme Court.  Let's hope they do the right thing. The time has come for real justice, not thumb-on-the-scale justice where the privileged and powerful have cozier, more comfortable seats in the courtroom.

Fragile Economy, Fragile Justice

"It's the economy stupid."  Jim Carville was correct then and correct now.

The economy is the main issue, and its lackluster performance threatens this country in more ways than one.  At the moment, the poor economic data is providing a surge to the Republican contenders for the presidency.  By comparison, President Obama looks weak and unfocused.  Click here for an article on recent polls showing the president is in trouble.  Will he turn it around?

Greed

"Greed is good," declared Michael Douglas in his role as fictional Wall Street robber baron Gordon Gecko.  It was 1987, and so began the modern era of distorted, excessive, out of control capitalism.

The movie made Gecko out to be a villain, to be sure, but it also glorified the money-for-money's-sake lifestyle, and it cemented a fact of American life: winning at all costs in the American marketplace was normative behavior in our culture, and as long as you did not get caught, there were no real consequences.

A Comment on the RLG Blog

Dear Reader:

 

The RLG Blog is relatively new.  We have added 7 posts since early July.  We are aiming to add 2-3 posts per week.  Hopefully our posts will provide information, food for thought, and stimulate discussion about topics relevant to our practice, our community, and our world.

 

THE RLG BLOG IS WRITTEN AND EDITED ENTIRELY BY ME, OR IF SO DESIGNATED BY ANOTHER RLG ATTORNEY.  WE DO NOT USE PROFESSIONAL WRITERS, PR SPECIALISTS, INTERNET EXPERTS, OR ANYTHING OF THE SORT.  THE CONTENT IS ENTIRELY OURS AND WE ARE ENTIRELY RESPONSIBLE FOR IT.  THE WORDS AND MESSAGES ARE OUR OWN.  THE MISSION OF THE BLOG IS TO CONNECT WITH THE COMMUNITY WITH MESSAGES RELEVANT TO THE PRACTICE OF LAW AND TO RLG's PROFESSIONAL LIFE.

 

Gov. Rick Perry, Tort Reform, and the Big Texas Lie

Texas has a way of producing politicians with populist appeal.  And now comes Governor Rick Perry.  Unfortunately, the recent Texas formula has been to build political popularity on misrepresentations and half truths.  The most persistent of these misrepresentations and half truths over the years has been the rationale for tort reform.

Kernicterus

A medical condition due to excessive bilirubin in newborn infants, Kernicterus is a devastating disease that results in brain injury or death when untreated jaundice damages the brain and other organs.  But Kernicterus should be eliminated from modern life.  Current medical technology is capable of detecting bilirubin levels in infant blood, capable of identifying genetic markers predisposing infants to Kernicterus, and capable of treating and eradicating hyperbilirubinemia (high bilirubin in blood) before it ever reaches the point of Kernicterus.

Florida Supreme Court Amicus Briefing on the Medical Malpractice Damage Caps Issues

Thank you to Joel Perwin on behalf of the Florida Justice Association; Stephen Zack and Herman Russomanno on behalf of the American Bar Association; and Lincoln Connolly on behalf of Floridians for Patient Protection.  They all filed excellent amicus briefs, arguing persuasively that Florida's medical malpractice damage caps are a violation of Florida's Consitution.  I attach all three briefs here for you.

 

Joel Perwin's FJA brief:

 

 

Florida Supreme Court to Address Constitutionality of Florida's Medical Malpractice Damage Caps

The Florida Supreme Court, having received certified questions from the 11th Circuit Court of Appeals of the United States on the topic, is set to address the constitutional questions raised by the legislature's medical malpractice damage caps passed into law in 2003.  The case is McCall v. The United States of America.  The Draconian legislation capped non-economic damages in medical malpractice cases in Florida.  Since 2003, the medical industry in Florida has enjoyed a level of protection never before seen in Florida.

Attorney Stuart N. Ratzan on Corrupt Judges

The recent conviction of Pennsylvania Judge Mark Ciavarella, who accepted cash in exchange for his sentencing children to serve time at a local, privately owned prison, sends shockwaves through our justice system.  Lately, I have wondered whether it should be called a "justice" system or, instead, a "legal" system or "court" system.  The truth is our system is loaded with injustice.  But that is exactly why I believe the role of the trial lawyer is so vital.  When we act honorably, and we pursue justice on behalf of our clients with candor and zeal, we force the system t

Stuart N. Ratzan on "The Power and Importance of the American Jury"

The Founding Fathers of the United States of America, with intelligence and sophistication, recognized from the outset the power and importance of the American Jury.  These men were, by and large, from an elite class of wealth and power.  Yet they understood that providing checks and balances, through a democracy that rested much of its power on the common citizen, was essential in order for fairness and freedom to endure.  Else, the elite classes would usurp power and alienate the common man.

Attorney Stuart N. Ratzan on David's Slingshot and the Judicial System

The judicial system, and the jury trial in particular, are the great equalizers in our democracy. How many of us have the power and money to compete with the tobacco industry, or British Petroleum, or Walmart, in our state capitols or in the United States Senate? In the halls of our capitol buildings, power and money reign. Imagine the reception the average citizen would get when entering to persuade a legislator on a need for public funds, or on a change in the law, as compared to the CEO of AIG, Goldman Sachs, or Johnson & Johnson! And what about the Executive Branch? What are the average citizen's chances of accessing the Governor's mansion for a sit down? And the White House? In the words of Tony Soprano, "Fahgettaboudtit!"