In my continuing effort to educate the general public about the truth regarding the Civil Justice System, I want to discuss a part of the medical malpractice law in Indiana. If you are seriously injured in a drunk driving accident, a construction accident, a slip and fall on privately owned property and you are 1% at fault for the injuries, you are still entitled to collect 99% of your damages. This is only fair, in that each person should be personally responsible for the harm they cause, and not just a part of the harm they cause, all the harm they cause.
This is not true in a medical malpractice case. If the health care provider commits malpractice, but the injured patient is 1% at fault for his/her injuries, because they forgot to take a medication on one occasion, then that 1% fault means that the health care provider does not have to compensate the patient they injured even though the health care provider’s fault caused 99% of the harm. Now remember, medical malpractice does not mean the health care provider meant to do anything to cause the harm. Medical malpractice simply means that the health care provider failed to treat the patient the same way a reasonably careful doctor would treat the patient. You can liken this to a driver who fails to stop at a stop sign and causes an auto accident. The driver did not mean to ram the other car, they simply did not drive as a reasonably careful driver would drive, i.e. stopping at the stop sign.
It is not fair that health care providers are not responsible for making up for the harm they cause, if the person they injure is minimally at fault for the injuries. If you are a juror, you are not told this truth about medical malpractice, and there is no sound reason why you are not told this truth. I propose one of two changes. Either change the system so that each party to the lawsuit is responsible for exactly the amount of harm they cause, or tell jurors the truth about how the system now works.
As an Indiana Serious Personal Injury Attorney practicing all over the State of Indiana from our offices in Indianapolis, I want to offer another point in my question to improve the Civil Justice System. As you all know our civil justice system is the best in the world. In this civilized and effective system, businesses work out disputes without violence. In this system our government is called to task for errors and omissions, another check in the balance of power. Seriously injured people, the victims of drunk driving accidents, highway accidents, motorcycle accidents and the like, are able to bring their claims to the civil justice system in an attempt to find fair compensation and justice. However, improvements should always be considered.
I suggest that jurors should always be told the truth about Insurance. Currently, if a person is injured and brings their claim to Court, the jury is not told whether the person who caused the collision, and injuries, has insurance which will cover the claim. The person bringing the claim must tell the jury they have health insurance, so why is the jury not told that there is liability coverage that will pay the judgment? The answer is that the insurance companies have convinced the Courts that Jurors are not trustworthy. The insurance companies assert that if the jurors know there is insurance they will give the injured person more than fair compensation. I, for one, believe that jurors are honest, intelligent and want to do the right thing according to the law. So I think the reasons for not telling Jurors the truth about the existence of insurance do not hold up. As the civil justice system is based finding the truth, withholding the truth from jurors is not justifiable and should not be done.
I’ve been practicing law for more than 23 years. In all that time, except for a three year stint as a part time public defender at the start, I have represented only those seriously injured as a result of the negligence of others. In that time, I have seen much criticism of the civil justice system. I have heard that there are too many law suits. I have heard that people need to take personal responsibility. I have heard that our medical system is being irreparably harmed by malpractice suits. The list goes on and on. In response to all this criticism, I am starting a multi part blog that addresses ideas that will make the system a level playing field for the benefit of all concerned. Let me start by saying that our civil justice system is the best in the world. Of course it will always be subject to change to accommodate our changing society. However, in our system of civil justice we do not drag a person who has caused a serious collision and serious personal injury or wrongful death and beat the driver to death.. We come to Court. We behave as civilized human beings. We allow our adversaries counsel and the opportunity to present their evidence in a peaceful manner. We ask our peers to listen to the evidence and return a verdict. We then live with the results of that verdict. I offer the following ideas as an observer whose goal it is to aide our society to greater heights.
Every person should be held responsible for their actions. Currently, a person is held accountable for their actions, but only in part. Responsibility is based on fault and fault is determined by percents. For example if a driver is 75% at fault for causing a serious injury, and the injured person is 25% at fault, the 75% responsible driver fairly compensates the injured driver by paying 75% of their damages. However if the injured driver is 51 % at fault, and the other driver is 49% at fault, the other driver has no responsibility to fairly compensate any of the 49% of damages they caused. In addition, the jury is not told this fact. I suggest making two changes. First, change the system so that the driver who causes any percent of a collision, is responsible for fairly compensating the injured driver equal to that percent of fault. If they are 25% of fault, pay 25% of the injured person’s damages. If they are 95% at fault they are responsible for compensating 95% of the damages. After all it is only fair that a person be responsible only for that percent of harm they cause. Second, tell the jury the truth about how the system works. Jurors are smart. Jurors do not become frivolous just because they are sitting in the jury box. Jurors listen to the evidence and try to follow the instructions. Tell them the truth and let them do their job.
In law school we talked a great deal about the mythical reasonable person. A reasonable person is easy to identify in some situations such as, a reasonable person will always stop at a stop sign. A reasonable person will always follow warnings on products. But it is not always easy to know what the reasonable person will do. If a person reads a warning on a product, but does not understand it, are they being reasonable if they use the product? If a person is attempting to pull out of a parking lot, but cannot see and another driver waives them out is the first driver being reasonable if they pull out and then is hit by a car they did not see? Why is reasonable person worth discussing. The reasonable person is worth discussing because as we go through life, in this social world of ours we try to behave in such a way that we allow everyone to live their life the way they wish to, including ourselves. When we fail to act reasonably, such as driving while drunk, causing a drunk driving highway accident, or we do not follow OSHA rules and regulations at a construction site and a construction accident happens. When accidents happen people suffer serious injury such as amputations, paralysis, broken bones, brain injury and even wrongful death.
When injuries do happen, and a person is forced to sue (usually because the insurance company for the person who failed to acted reasonably and the injured person cannot agree on what is fair compensation), the law tries to look back and see if the person who caused the injury acted reasonably. If you are ever selected to serve as a juror in a case involving personal injury, you will hear a lot about the reasonable person. You will be instructed by the Court that id the person who is charged with causing the injury failed to act like a reasonable person, then that person will be responsible to fairly compensate the injured person for all their injuries. (Remember, this compensation will be paid by the person’s insurance company and the person will not have to pay anything out of their pocket).
In conclusion, as you interact with everyone else, the law requires that you act as a reasonable person would act so as to not cause injury to another.