Fewer Tort Lawsuits

Fewer Tort Lawsuits – No surprise to attorney’s who practice personal injury law

By Jeffrey J. Downey, Esq.

Americans are filing far few lawsuits, according to the National Center for State Court, which amounts to two lawsuits per 1,000 people, a sharp decline from numbers in 1993, when the number was about 10 in 1,000.

What’s fueling the decline? State restrictions on litigation, the increasing cost of bringing suits, improved auto safety and a long campaign by businesses to turn public opinion against plaintiffs and their attorneys.

“I am not surprised by this decline in lawsuit filings,” explains Fairfax personal injury attorney Jeffrey J. Downey. “We have also seen an increase in mandatory arbitration agreements, in which people, often without realizing, sign away their rights to pursue a legal claim in court. This is particularly common in the nursing home setting, where patients can be subject to multiple forms of neglect and often have no redress with the courts,” explains Downey.

The large slowdown in the number of lawsuits filed contrasts with the public perception of courts choked in tort claims, and has significant implications for businesses, doctors, patients, lawyers, and the courts themselves.

Companies and insurers on the receiving end of such lawsuits welcome the decline of what they regard as a lawsuit culture which lawyer-driven litigation increases costs to both businesses and consumers. Trade groups that represent these firms have long pushed for laws to raise the bar for filing lawsuits and rein in damages, portraying a large chunk of tort litigation as a drag on the economy that burns judicial resources.

What has gone up in cost while the number of tort cases filed has gone down? The costs of retrieving medical records and calling expert witnesses. Many states required medical-malpractice plaintiffs to file an expert report either before or soon after the lawsuit. “Virginia is one such state that requires an attorney to have a certificate of merit before serving a lawsuit on a healthcare provider,” explains Downey. Various states have pursued draconian damage caps, like West Virginia who enacted a 250,000 cap on non-economic damages. This results in attorneys not taking cases because the economics does not justify the significant outlay of costs and time that a complex malpractice case could involve.

In an article written by the Wall Street Journal’s Joe Palazzalo, Lisa Rickard, president of the US Chamber Institute for Legal Reform, an arm of the U.S. Chamber of Commerce, opines that while state measures have “weeded out some frivolous lawsuits,” litigation abuse remains a problem. “The American public whole-heartedly agrees there are too many lawsuits in the country,” says Rickard. Ms. Rickard adds that an increase in single lawsuits bundled with multiple plaintiffs could be a factor in the decline in tort filings.

Palazzalo writes that tort lawsuits now account for less than 5% of all civil filing in state courts. Most civil cases are filed in state courts—more than 15 million in 2015, compared with 281,608, brought in federal courts last year, according to federal statistics and data collected the National Center for State Courts, a research center for state courts.

“Big business and the healthcare industry are quick to point to alleged “frivolous lawsuits” that adversely impact our economy or judicial system, but that is nonsense” explains Downey. Aside from infamous the McDonald’s coffee lawsuit, Leibeck v. McDonalds, no one seems to be able to cite actual examples of frivolous lawsuit. That’s because we have a judicial system in which frivolous lawsuits are subject to dismissal or reduction of damages, just like the famous McDonald’s coffee verdict, in which post-trial motions reduced the punitive damage claim from $2 million to $480,000. Restricting someone’s rights before they can even file a claim benefits only those who would be subject to liability for their negligent conduct, along with their insurance carriers, who have been the big winners in tort reform,” explains Downey. “As a justification for medical malpractice caps, the public was told it would help reduce the cost of healthcare by reducing premiums the doctors paid for their malpractice insurance. That never happened. Healthcare costs continued to rise and insurance companies took advantage of the windfall. Imagine living in a state where a healthcare provider could cause the death your loved one and only be liable for 250,000 in non-economic damages. That is not justice and the possibility that frivolous lawsuits could be filed cannot be used as a justification for limiting the rights of people who have legitimate personal injury claims.”

For more information about tort reform or to seek information regarding a potential claim, contact the Law Office of Jeffrey J. Downey, 8270 Greensboro Drive, Suite 810, McLean, VA, 22101, Phone 703-564-7318. On the web at jeffdowney.com.