New Jersey Personal Injury Lawyer Blog Provided by New Jersey Trial Lawyer David A. Mazie

Proposed Health Court seek to remove juries from medical malpractice cases.

2006-09-18T13:58:00.000-07:00

The United States Congress, long a proponent of tort-reform has entered a new phase in its goal of reducing jury awards: the creation of so-called health courts. The target of this Congressional action is medical malpractice cases. Under these proposed health courts, plaintiffs who bring medical malpractice cases would be forced to litigate their case before an administrative law judge, not jurors.

The administrative judge, who would be advised by neutral medical malpractice experts, presumably physicians and nurses, would render written opinions in these cases. The proposed courts would determine the award for economic damages, while awards for pain and suffering would be based upon formulas established by each state. Supporters of health courts cite the predictability and uniformity of awards as its most salient virtue. Opponents believe that this is nothing more than a Congressional end-around their stalled legislation aimed at capping medical malpractice awards.
One such group opposing such a proposal is the American Bar Association. In February, the ABA House of Delegates passed a resolution opposing the creation of health courts stating that such an enactment would “deny patients injured by medical negligence the right to request a trial by jury with the right to receive full compensation for their injuries.” Moreover, the ABA is concerned that by establishing a schedule of injuries/pay outs, the health court scheme “would impose a de facto cap on non-economic damages in injury claims.”

Although it is unlikely this legislation will pass in the Congress, let alone, the New Jersey State Legislature, it is another reminder that the rights of individual plaintiffs are often the target of so-called “tort-reformers.” In New Jersey, the current system seems to work to eliminate the filing of frivolous claims, while the large portion of cases settling out of court never result in high jury awards. To remove juries and replace them with formulas for determining whether a victim of medical negligence should be compensated for pain and suffering is to trivialize their suffering. Victims of medical negligence deserve an opportunity to be heard by a jury of their peers.

For some plaintiffs, healthcare coverage is an I.O.U.

2006-05-19T07:04:00.000-07:00

This week, the United States Supreme Court in Sereboff v. Mid Atlantic Medical Services, Inc., 2006 WL 1310754, ruled that an ERISA health insurance plan, may sue an injured party for reimbursement of medical expenses. This decision has sent shock waves through the legal community because it may have a chilling effect on plaintiffs’ cases. Sereboff allows an insurance company to recoup the amount of medical expenses they covered on behalf of the injured party. Consequently, an innocent individual who is the victim of an accident and successfully sues the party responsible for the accident may have to pay the insurance company for the treatment they received.

Under ERISA health plans, if a beneficiary sues and recovers from a third party, the insurance company is entitled to reimbursement. The ERISA Act allows an insurance company to sue for “appropriate equitable relief,” namely, the amount they extended to pay for the insured’s medical expenses. The significance of this decision is that it will greatly reduce a plaintiff’s ability to collect damages for their injury because the insurance company will hold a constructive lien on the judgment. For instance, if a plaintiff suffers catastrophic injuries at the hands of a doctor, and collects $500,000 through a medical malpractice suit, she will not be entitled to the whole amount. Under Sereboff, if the plaintiff received $490,000 in medical treatment, she would be left with a paltry $10,000. After legal fees and expenses, the plaintiff would likely collect $0.00. Interestingly, the cases cited by the Supreme Court involved judgment amounts that dwarf the amount of medical treatment expended by the insurance company so they have not encountered such cases.

Although cases like the one described above have not been reviewed by the courts, it is likely that such a scenario will occur. Hopefully, when the Supreme Court is presented with such facts, they will revisit the Sereboff decision and craft a more equitable rule that provides plaintiffs protection from their insurers.

New Jersey Supreme Court Holds that Exxon Owed Duty of Care to Wife of Former Employee

2006-04-24T20:03:00.000-07:00

Anthony Olivo, Executor of the Estate of Eleanor Olivo v. Owens-Illinois, Inc.,et al., Docket No.: a-23-05, Decided: April 24, 2006

In a unanimous ruling, the New Jersey Supreme Court recently held that a retired steamfitter who maintains that his asbestos-contaminated work clothes caused his wife's death can sue Exxon Mobil, owner of a refinery where he worked. The oil company should have known Eleanor Olivo was in danger from washing her husband's work clothes, the court said in its unanimous ruling.

The company argued that it should not be held responsible for Eleanor Olivo's death because she had never been on company property and her husband was not an Exxon Mobile employee. The unanimous court disagreed, finding that "Exxon Mobil owed a duty to spouses handling the workers' unprotected work clothing based on the foreseeable risk of exposure from asbestos borne home on contaminated clothing."

Anthony Olivo worked as a steamfitter and welder from 1947 until he retired in 1984. The Woodbury resident worked for several contractors at various sites in New Jersey, among them Exxon Mobil's refinery in Paulsboro. During the course of his carrer, Olivo worked around asbestos-containing materials, including pipe coverings and gaskets. As part of their daily routine, when Anthony came home from work each night, he would go to the basement where the washing machine was located and change into clean clothing. Eleanor laundered Anthony’s work clothes during the evening of every workday. In 1989, Anthony was diagnosed with non-malignant asbestos-related disease. Eleanor was diagnosed with mesothelioma in 2000 and died shortly thereafter in 2001.

The case represents a significant step by the New Jersey Supreme Court to protect the victims of asbestos related illnesses.

New Jersey Trial Lawyer

2006-04-06T19:14:00.000-07:00

Welcome to New Jersey Personal Injury Lawyer Blog provided by New Jersey trial lawyer David Mazie, who has won more than $160 million in verdicts and settlements as reported on www.injurylawyernewjersey.com.