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11 posts from December 2009

Tuesday, December 29, 2009

A doctor’s nightmare

Malpractice cases take a toll on doctors.  Just ask Dr. Joan Savitsky. 

In yesterday’s New York Times, Dr. Savitsky – a former internist in the Boston area – writes of the personal and professional tribulations she faced after the family of a cancer patient sued her.  Litigation stretched on for over four years.  It ended when the plaintiffs’ attorneys, realizing the case was unwinnable, told them they would have to pay for expert testimony at their own expense. 

The plaintiffs were the children of a relatively young woman she treated for an unexpected and aggressive colon cancer.  Dr. Savitsky writes that she believed them to be coping with complex emotions, which she speculated would include grief, anger, and frustration, and perhaps misunderstanding.  Filing a malpractice suit somehow addressed this.

You can read the full text of Dr. Savitsky’s story here. 

Monday, December 21, 2009

Tort reform is the key to a healthier New Jersey

As the national debate on health-care reform and tort reform unfolds, it is worth noting that here in New Jersey, we have our own health- care crisis under way. And it is driving out physicians, limiting patient access to care and increasing the cost of health care for all of us.

Recently, I spoke to a young man who is studying medicine at the University of Medicine and Dentistry of New Jersey (UMDNJ). A lifelong New Jersey resident who excelled as an undergraduate, he represents the best and brightest our state has to offer. With grand aspirations of becoming a doctor, he enrolled at UMDNJ, hoping to someday practice in his home state. Unfortunately, he has come to realize that his dream of practicing specialized medicine faces a significant hurdle -- and it's not just rotations.

This promising young medical student, whom I will call Jim, has become a casualty of our litigious health-care system. Growing up in a large family fostered Jim's interest in delivering babies, prompting him to study obstetrics. Earlier this year, however, reality hit: Jim has the talent to become an OBGYN, but lacks the bottom line.

"I can't afford it," Jim realized. "I went to medical school thinking that if I worked hard enough, I would be able to practice my specialty of choice. Not being able to become an OBGYN because I can't afford malpractice insurance was the furthest thing from my mind."

CLICK to read full Op-Ed in the Times of Trenton

Friday, December 18, 2009

Tort reform will improve New Jersey's business climate

In his December 13th Op-Ed, John Farmer Jr. correctly suggested that Governor-elect Christie utilize his office’s institutional powers to take control of the budget process as he prepares to “turn Trenton upside down.”  But with so little room to maneuver on budget issues, the new governor must also look for ways to improve the business climate immediately, and tort reform is an area where the Governor-elect should focus.

 The American Tort Reform Association (ATRA) recently cited New Jersey as a “Judicial Hellhole” due to our state’s reputation for lawsuit abuse.  Ninety-three percent of the lawsuits filed against our pharmaceutical companies in mass torts were from out-of-state litigants, whose cases would never see the light of day in their home jurisdictions.  Large employers and local governments alike are continually increasing their legal defense budgets to fight frivolous litigation, exacerbating New Jersey’s affordability problem.  We can’t let New Jersey become, as Mr. Farmer calls it, “the East Coast’s California.”  Tort reform is a revenue-neutral policy reform that will improve the business climate, paying off in the form of more jobs, more innovation, and a stronger New Jersey.  It may also offer one of the best ways for this governor and pro-business democrats in the legislature to send the message that New Jersey is open for business again.

Wednesday, December 16, 2009

At least our gas tax is low

Imagine being named the worst state for business and a “hellhole” by judicial standards in the same week. 

Unfortunately, New Jersey is wearing both crowns for the second consecutive year. 

The Small Business & Entrepreneurship Council released its Small Business Survival Index 2009, placing New Jersey, once again, at the bottom of its list. 

The Survey comes just after New Jersey earned the #4  spot on the American Tort Reform Association (ATRA)’s annual “Judicial Hellholes” Report –for the third consecutive year. 

Both seem to concur with the Tax Foundation’s annual study of state tax and regulatory environments, which decried New Jersey as the worst state in which to do business back in September. 

Tuesday, December 15, 2009


FOR IMMEDIATE RELEASE                                Contact: AnnMarie McDonald

December 15, 2009                                                 (609) 649-3167





Citing a “culture of litigation,” American Tort Reform Association says that excessive litigation has compromised access, affordability of prescription drugs; schools in Atlantic County also hurt.


ATLANTIC CITY, N.J. – A report released today by the American Tort Reform Association (ATRA) places New Jersey’s courts at number 4 in its annual list of “Judicial Hellholes,” with a particularly dire situation in Atlantic County. 

“Every dollar spent defending against a groundless lawsuit is a dollar that won’t be spent on research and development, capital investment, worker training or job creation,” said ATRA President Sherman “Tiger” Joyce.  “Unfortunately for those living in Hellholes jurisdictions during this economic downturn, it can be that much harder to find or keep a job and get critical health care services as employers and doctors are driven away by the  threat of costly litigation.”

“Ninety-three percent of the lawsuits filed against our pharmaceutical companies were from out-of-state litigants, whose cases would never see the light of day in their home jurisdictions,” added Marcus Rayner, Executive Director of the New Jersey Lawsuit Reform Alliance (NJLRA).  “Instead of being the nation’s ‘medicine cabinet,’ the trial bar is turning New Jersey into the nation’s lottery ticket instead.” 

Even more alarming is the impact that excessive litigation is having on Atlantic City’s struggling school district.  The report notes that the Atlantic City School District spent roughly $1.5 million on legal services last year, more than every other school district in the state by a substantial margin.  This school year, Atlantic City has budgeted $1.16 million for its legal services, equating to approximately $184.00 for each student in the district. 

“We have a lot of problems, and a lot of lawsuits… we’re trying to recoup costs for frivolous lawsuits,” said School Superintendent Fredrick P. Nickles. 

The full text of ATRA’s report can be found on NJLRA’s website, http://njlra.org


# # #


The New Jersey Lawsuit Reform Alliance (NJLRA) is a statewide, bipartisan group of businesses, individuals and organizations committed to improving the State’s civil justice system by advocating for legal reforms in the legislature and in the courts. NJLRA believes a balanced civil justice system is critical to ensuring fair and open courts, maintaining and attracting jobs and fostering economic growth in New Jersey. NJLRA is the only organization in New Jersey dedicated exclusively to civil justice reform.

Monday, December 14, 2009

Listen Live

Marcus will be on WOND-AM 1400 tomorrow morning (12/15) at 8:10 AM EST to discuss the state of New Jersey's civil justice climate. 
[Click HERE for online streaming]

Friday, December 11, 2009

Wrongful Death Expansion still a Threat

Medical associations, businesses, and local governments across New Jersey stood in opposition to S-763, the “More Lawsuits, Higher Taxes” act.  NJLRA and many others have been busy trying to prevent a last-minute effort to push this damaging legislation through during “lame duck,” as has been attempted in the past.  So far, it appears that our elected officials are listening.  S-763 is bad for taxpayers, businesses, school districts, local governments, and doctors across our state.  Its passage could have devastating consequences for many economic sectors, and contribute to the exodus of specialty doctors from our State. 

Today, however, NJLRA learned of a mailer being circulated by AARP of New Jersey, urging its members to call Senate President Richard Codey and ask him to post this legislation before the lame-duck legislature.  Presented as a moral effort to quantify the “worthiness” of children, the elderly, and disabled, the mailer expressly ignores that this bill would undermine the fairness of the courts by giving juries free rein to impose unlimited and highly-subjective awards.  It would invite abuse, and exploitation by ambulance chasers at the expense of New Jersey residents and businesses. 

So, let’s seize the opportunity, and call Senate President Codey to thank him for NOT posting S-763 during lame duck: 1-800-260-0130. 

Thursday, December 10, 2009

Yes, it is a Crisis

Ever-increasing medical malpractice premiums in New Jersey are negatively impacting the cost of our healthcare, and our access to doctors in New Jersey.  This undesirable reality prompted Assemblywomen Alison Littell McHose (R-Sussex), Amy H. Handlin (R-Monmouth), and Grace Spencer (D-Essex) to address the Legislature during Monday’s Assembly voting session. 

On the agenda was A-4245, which was sponsored by Assemblywoman Spencer.  This legislation- a partial step forward, by all accounts - revises the approval process for rate changes applicable to medical malpractice insurance.  It gives the Commissioner of the Department of Banking and Insurance (DOBI) the ability to designate a range for annual rate changes, which “shall be an increase or decrease of between not less than 5% and not more than 15%,” pursuant to the health care provider’s specialty.  This would protect doctors from stark increases from one year to the next, but as Assemblywoman Handlin pointed out, “When your premium is an already outrageous $100,000.00, it doesn’t help you much to be able to predict that it will go up to $115,000.00.” Handlin also warned that “we [the Legislature] can’t allow this legislation to lull us into complacency about the medical malpractice insurance crisis, and yes, it is a crisis.” 

Assemblywoman McHose pointed out that this legislation “does nothing to reduce or effectuate tort reform as it relates to medical malpractice,” and that while it enables DOBI to set guidelines, “it won’t provide relief.”  Hoping to seize an opportunity, she proposed amendments to A-4245 to cap noneconomic damage awards against medical professionals at $250,000.  Unfortunately, the motion to amend was tabled. 

Despite the Assembly’s failure to take an additional step to address medical malpractice reform, it is encouraging that Assemblywomen McHose, Handlin, and Spencer agree that this issue is far from settled. 

You can listen to the remarks of Assemblywomen McHose and Handlin by selecting the December 7, 2009, voting session here, and pointing your mouse at the approximate 1:45:50 timestamp.  

Monday, December 07, 2009

Do we need a lawsuit to tell us that talking on a cell phone while driving could be dangerous?

Apparently, the answer may be yes.  20-year-old Christopher Hill chatted on his Sprint Nextel phone while driving his Ford pickup through Oklahoma City.   Distracted, he ran a red light at full speed, killing an innocent motorist, 61-year-old Linda Doyle. 

Hill acknowledged to the police that he was consumed by a phone call, and the victim’s family is rightfully outraged.  This sort of carelessness shouldn’t end an innocent person’s life, but unfortunately, it did. 

There are a number of ways in which Ms. Doyle’s family can use this tragedy to honor her life.  Ms. Doyle’s family could lobby for stricter sentencing in cases of vehicular homicide.  They could lead efforts to prohibit the use of cell phones while operating a vehicle.  They could even spearhead public awareness campaigns in high schools and colleges, and perhaps prevent another tragedy from occurring. 

Instead, Ms. Doyle’s family has decided to sue – not sue Hill, but Sprint Nextel and Samsung. 

Ms. Doyle’s family argues that both the cell phone provider and manufacturer should have warned users that driving while using the device could be dangerous.  Yes, this would be in the instructions that most of us, including Hill, don’t read in the first place.   It’s telling that they aren’t suing the person who was ultimately responsible for taking their loved one’s life through negligence, but marginally-involved large companies instead.  Surprisingly, the Doyle family hasn’t filed suit against Ford – yet. 

Friday, December 04, 2009

This week in Assembly Judiciary

The absence of Marriage Equality on the respective agendas of the Assembly and Senate Judiciary Committees this week dominated this week’s news clips.  Another important piece of legislation, however, made its way through the Assembly Judiciary Committee on Thursday. 

The first, A-931, would shield Citizen Corps volunteers from civil liability when responding to an emergency.  The bill was amended by the Assembly Homeland Security and State Preparedness Committee in January 2008 to clarify who would receive such immunity.  It is important that our volunteer responders not be made vulnerable to lawsuit abuse after offering their assistance during emergency situations.  Our thanks to Assemblyman Fred Scalera for sponsoring this legislation, and to Chairwoman Linda Greenstein for posting it in her committee. 

Tuesday, December 01, 2009

Third-party Litigation Financing Study Released

Point of Law’s Walter Olson wrote about a recently-released study by the U.S. Chamber of Commerce’s Institute for Legal Reform.  According to the study, third-party litigation financing can be dangerous, and leaves plaintiffs vulnerable to lawsuit abuse, especially in class action cases. 

For those of us who aren’t familiar with the term, third-party litigation financing is a scenario under which a law firm or other entity agrees to finance the lion’s share of a plaintiff’s litigation expenses in exchange for a percentage of whatever monetary award he receives.  They’re becoming increasingly popular across the United States and Australia, which has experienced a significant spike in litigation as a result of such arrangements. 

The root problem with third-party litigation financing, according to the study, is that it introduces a stranger to the attorney-client relationship, whose sole interest in the matter is financial.  The stranger’s objective is to maximize his or her investment, not seek a fair outcome for the other parties involved. 

ILR’s study, “Selling Lawsuits, Buying Trouble,” was authored by John Beisner, Jessica Miller, and Gary Rubin.  You can read the full text of their report here, which includes their recommendation that third-party financing should be banned in class action lawsuits in the United States.