Physicians’ fears of being sued for malpractice are out of proportion to their actual risk of being sued, according to a recent study.

The study by a University of Iowa researcher and colleagues also suggests that tort reform legislation aimed at controlling malpractice costs has not lessened physician concerns about malpractice lawsuits, and may not be effective in altering defensive medicine practices — like ordering unnecessary lab tests — that can drive up the cost of health care.

“We found that both generalist and specialist physicians fear being sued for malpractice even in states where their risk of being sued is relatively low,” said senior study author David Katz, M.D., associate professor of medicine with University of Iowa Health Care. “One likely explanation is that physicians’ concerns about malpractice are driven more by their perception that the malpractice tort process is unfair and arbitrary and less by their actual risk of getting sued.”

One of the biggest reasons given by the insurance industry and the medical community for tort reform is that such reform would allow doctors to practice without the need for additional but needless tests.  Doesn’t look like a very good reason after all.

Overlooked in the brawl over expiring Bush-era tax rates is what will happen to the death tax. Without action in the lame duck Congress, the estate tax will rise from the dead on January 1 with a vengeance, the rate climbing back to 55% from zero this year. The exemption amount will revert to a miserly $1 million, unindexed for inflation, so more middle class taxpayers will get hit year after year.

Of course there are compromises that are possible, but given recent Congressional inaction, on the same subject one cannot assume one will actually pass:

Liberals are content to let the rate revert to 55%, with some moderate Democrats arguing for a 45% rate. Republican Jon Kyl of Arizona and Democrat Blanche Lincoln of Arkansas are pushing a compromise that would lower the top rate to 35% with a $5 million deduction. That rate is still 35 percentage points too high for our liking, but we’ll take it as an alternative to the greedy political confiscation of more than half of the wealth built by someone who has saved over a lifetime. An estate of $5 million isn’t all that much for a successful and thrifty business person with some real estate to accumulate over 50 or 60 years.

Most Americans appear to favor some compromise–unfortunately most Americans are not serving in Congress:

President Obama and Congressional Democrats don’t think this is a high priority, but voters do. A November Gallup Poll found that Americans think that keeping the estate tax “from increasingly significantly” is “very important” by 56% to 17% “not too important.” That’s more than think it is a priority to extend current tax rates (50%), extend jobless benefits (48%), ratify the Start treaty (40%) or let openly gay men and women serve in the military (32%).

Congress really only has until about mid month when it adjourns for its current session, and the remainder of the year.  Further inaction will only hurt middle class families more, particularly since they are the least able to cope with the new estate tax rates than are the heirs of the very wealthy.  Stay tuned . . .

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The California Coalition for Compassionate Care has a great website explaining the POLST legislation. You can also see a good explanatory brochure here.

The primary focus of a POLST is to supplement your current Advance Health Care Directive, not to replace that directive. Only your physician can sign the POLST. You can read a list of POLST FAQ’s here.

The POLST (Physician Orders for Life-Sustaining Treatment) form is important for people with serious health conditions. It is used to make a person’s wishes for medical care known to doctors, nurses, emergency medical personnel and other healthcare staff. The POLST form is a bright pink medical order form. Your doctor uses the POLST form to write orders that indicate the treatment you want in the last stages of an illness.

For more information read the information at the links above, speak with your health care professional or your estate planning attorney.

Do I need estate planning

Do I need a will

California Statutory Will

Do I need a living trust

Schiavo case and importance of a living will

Estate Planning

Everyone over 18 should engage in at least some minimal estate planning. Why? The answer is simple. At 18 you become of age, capable of contacting, owning real property, and marrying. When you die, whether at 18 at 98, or anywhere in between if you have not planned for the disposition of whatever estate you have, then the State of California will decide its disposition, which may not be what or how you wanted. This could include the appointment of individuals to oversee the distribution of your estate, which could go to remote relatives or even relatives of your spouse, with whom you may or may not agree.

Everyone regardless of their economic circumstances should have an estate plan in place. Why? Again, the answer is simple. Death, disability and disaster do not discriminate on the basis of wealth or economic means. We provide quality, efficient and economic legal advice to those who are interested in and need guidance on wills, trusts, powers of attorney and health care directives.

If you do not have a will, a trust, a power of attorney, or an advanced health care directive to physicians, call for a free initial consultation on how we might be able to help you. We have a variety of payment plans available, and are happy to discuss the possibilities available to you. We believe everyone should have quality legal advice about estate planning regardless of their economic circumstance. Call or email guy@guymurraylaw.com so we can arrange for an initial free consultation on your estate planning needs.

Please visit the above links for a better understanding about wills, trusts, powers of attorney, and health care directives. They are not meant as specific legal advice for your situation, but are informational only.

If the decedent died with a will, then a probate administration takes place. The will is filed with the court, and a formal probate is opened, which the court oversees at various junctures. After all the assets are identified, appraised, the debts paid, then the court will approve the final disbursement to the beneficiaries and all the creditors. The probate process is complex, and the executor will require an attorney’s legal expertise and guidance.

If you need assistance with an estate’s administration upon the death of a loved one or friend, please call us for an initial free consultation.

It starts with the story of the Winnebago owner who puts his RV on cruise control, fixes himself some coffee, then sues and wins after he is injured. It doesn’t matter to the insurance and drug industry, or the conservative movement that the story is false. It makes for good headlines, influences people, and furthers the cause of tort reform in the public eye. Compounding the problem is the fact that the news media perpetrates these legends, and the people believe what they read in the newspapers and hear on television. The article follows below:

Legal Urban Legends Hold Sway

Tall tales of outrageous jury awards have helped bolster business-led campaigns to overhaul the civil justice system.

By Myron Levin, Times Staff Writer

Merv Grazinski set his Winnebago on cruise control, slid away from the wheel and went back to fix a cup of coffee.

You can guess what happened next: The rudderless, driverless Winnebago crashed.

Grazinski blamed the manufacturer for not warning against such a maneuver in the owner’s manual. He sued and won $1.75 million.

His jackpot would seem to erase any doubt that the legal system has lost its mind. Indeed, the Grazinski case has been cited often as evidence of the need to limit lawsuits and jury awards.

There’s just one problem: The story is a complete fabrication.

It is one of the more comical tales in an anthology of legal urban legends that have circulated widely on the Internet, regaling millions with examples of cluelessness and greed being richly rewarded by the courts. These fables have also been widely disseminated by columnists and pundits who, in their haste to expose the gullibility of juries, did not verify the stories and were taken in themselves.

Although the origins of the tales are unknown, some observers, including George Washington University law professor Jonathan Turley, say their wide acceptance has helped to rally public opinion behind business-led campaigns to overhaul the civil justice system by restricting some types of lawsuits and capping damage awards.

“I am astonished how successful these urban legends have been in influencing policy,” Turley said. “The people that created these stories did so with remarkable skill.”

The tales are making the rounds at a time when business lobbyists and conservative politicians seem to have gained the upper hand in their drive to rein in lawsuits — a campaign that they call tort reform but that trial lawyers and consumer groups say is an assault on the legal rights of ordinary people.

According to the American Tort Reform Assn. — which is backed by insurance, drug, auto and other major industries — 49 states have enacted at least one measure on the group’s wish list over the last two decades, including limits on punitive damages and caps on awards for pain and suffering in medical malpractice claims.

In February, President Bush signed a federal law that will make it harder to bring class-action suits in state courts.

And some polls suggest that there is public support for further change.

For example, a survey conducted for the American Tort Reform Assn. in 2003 found that by a ratio of 2 to 1, respondents believed that lawsuits were harming the economy and stifling job creation. In a survey released in June by Common Good, a conservative legal reform group, 83% of respondents said it was too easy to file invalid lawsuits, and 55% agreed with the statement that “many people use the justice system almost like a lottery — they start lawsuits to see if they can win millions.”

Such fears, fanned by anecdotes like the Grazinski tale, have no empirical basis, said Joanne Doroshow, executive director of the Center for Justice and Democracy, a consumer group that opposes the agenda of the business groups. “The data tends not to support the allegation that there is an out-of-control crisis with the legal system,” she said.

She and others point to surveys by the National Center for State Courts and the federal Bureau of Justice Statistics showing an apparent decline in personal injury suits and in the size of jury awards to successful plaintiffs.

But advocates of reining in lawsuits say there is no need to invent fictitious examples of legal abuse. “All false stories should be exposed,” said Victor Schwartz, general counsel of the tort reform association. But “you don’t have to go to the surreal” to find dubious verdicts, he added.

The group’s website includes a link to what it says are real but “Looney Lawsuits,” including a recent case in which a Portland, Ore., jury awarded $1.6 million to a woman who was seriously disfigured in a botched liposuction surgery. The jury imposed the judgment on the publisher of a phone directory after concluding that the company had knowingly allowed a dermatologist to falsely advertise himself as a board certified plastic surgeon.

Whether it’s the rich detail of the phony yarns that resonates or the fact that people are prepared to think the worst of the legal system, the bogus tales have attracted crowds of believers.

The first time he heard of the Grazinski case, Cornell University law professor Theodore Eisenberg was a guest on a Rochester, N.Y., radio talk show. Annoyed by Eisenberg’s defense of the justice system, a caller flung the Winnebago windfall in his face.

“You’re saying the system’s not crazy,” Eisenberg recalled the man saying, “but what about this case?”

Besides the Grazinski saga, there’s the mythical case of Amber Carson of Lancaster, Pa., who got into an argument with her boyfriend in a restaurant, threw a drink at him and then broke her tailbone when she slipped on the wet spot on the floor. Naturally, Carson sued — and won $113,500.

Then there’s Kara Walton, a Delaware woman so eager to avoid a $3.50 cover charge that she tried sneaking into a nightclub through a bathroom window but fell and lost a couple of teeth. Walton sued and won $12,000 plus payment of dental bills.

A database search shows the Grazinski, Carson and Walton tales have been cited as true by a wide range of media outlets, including CNN; U.S. News & World Report; the American Spectator; the Oakland Tribune; the Ft. Worth Star-Telegram; the Deseret News of Salt Lake City; the Akron Beacon-Journal; the Greensboro, N.C., News & Record; and the Augusta, Ga., Chronicle.

Some later issued corrections. Chuck Thomas, a columnist for the Ventura County Star, offered a mea culpa in a follow-up column, anointing himself winner of the “Chucklehead Award.”

Wide acceptance of the myths has been an eye-opener for Sheila Davis, public relations manager for Winnebago Industries in Forest City, Iowa. Davis says she has repeatedly had to explain that, no, there was no Grazinski lawsuit, and, no, the company did not have to change the owner’s manual to avoid a swarm of copycat claims.

“Unfortunately, we do have some people who write about it and don’t call us,” Davis said.

The cases are often listed together on Internet postings as winners of the “Stella Awards,” — supposedly a dubious achievement list of the nation’s most outrageous and ridiculous lawsuits. Although entirely fictitious, the Stellas take their name from the real-life case of 79-year-old Stella Liebeck, whose hot-coffee case against McDonald’s became the poster child for frivolous claims.

According to popular accounts of the lawsuit, Liebeck coaxed nearly $3 million from an Albuquerque jury in 1994 after being scalded by McDonald’s coffee she spilled on herself while riding in a car. These are the story’s best-known elements, but filling in the missing facts puts the case in a different light.

Trial testimony showed that at 180 to 190 degrees, McDonald’s coffee was much hotter than that served by other restaurants or by people in their homes. The fast-food chain had received at least 700 complaints about hot coffee in the previous decade and had paid more than half a million dollars in settlements, according to trial testimony cited by the Wall Street Journal.

Liebeck’s injuries were hardly minor. She suffered third-degree burns on her thighs and groin area, was hospitalized for a week and had to undergo painful skin grafts. Before filing a lawsuit, she wrote McDonald’s requesting that it lower the temperature of its coffee and cover her uninsured medical bills and incidental costs of about $20,000. McDonald’s offered $800.

Later, as the case neared trial, a mediator recommended that McDonald’s pay a settlement of $225,000. The company refused.

Jurors ultimately awarded Liebeck $160,000 in compensatory damages and about $2.7 million in punitive damages. “The facts were so overwhelmingly against the company,” one of the jurors told the Journal. “Their callous disregard was very upsetting,” another said.

Soon after the verdict, the trial judge slashed the punitive damages by more than 80% to $480,000. Then the case settled for an undisclosed amount.

“The irony about the McDonald’s case is that it actually, in my view, was a meaningful and worthy lawsuit,” George Washington University’s Turley said. Yet advocates and pundits have “made it synonymous with court abuse.”

Unlike the popular version of the McDonald’s case, the Stella Awards push mythmaking past mere exaggeration.

Barbara Mikkelson of Agoura Hills, who with her husband, David, operates a website dedicated to debunking urban legends (www.snopes.com), says the Stellas have sometimes appeared with an e-mail chain letter in which the mythical law firm of Hogelman, Hogelman & Thomas exhorts people to “assist our law offices in a tort reform program” by publicizing “insane jury awards.” Mikkelson noted that with the way information travels on the Internet, it would be impossible to determine the original authors.

Randy Cassingham, a Colorado resident who also debunks the Stellas on his website http://www.stellaawards.com , says he is angry about the tales — not only because they are false but also because they divert attention from what he believe are real abuses in the legal system.

According to Cassingham, the Stellas allow trial lawyers to say, “See, there is no problem with frivolous lawsuits. Our opponents have to make up cases to make a point.”

Although business groups are obvious beneficiaries of the fables, Schwartz of the tort reform association said his group had had nothing to do with them and was careful to verify all of its claims. “We try to be absolutely accurate in anything we’re presenting,” including examples of outrageous suits, Schwartz said.

In fact, Schwartz said, over-the-top self-promotion by some trial lawyers have made the best case for the need for change. “Their ads making things seem as if it’s just free money” have done “more to convince the American public that we have jackpot justice than anything put out by any tort reform organization — including the ‘looney lawsuits’ stories,” he said.

Coming Monday: Press coverage of the legal system exaggerates the frequency and scale of high-dollar awards to plaintiffs.

As the last sentence noted, the next article The Times published was on the exaggeration of the frequency and scale of big dollar verdicts by juries.

Of course, what almost always happens, as the article notes, is the media do not do any follow up reporting on the case as it continues its way through the civil justice system. The common myth is that “frivolous lawsuits are increasing, as are jury awards; however, the statistics do not bear this out. The popular view that there are more lawsuits and bigger damage awards than ever before is not supported by available evidence. So, why doesn’t the media report these statistics? Simple–no one cares. The old adage is true: If it doesn’t bleed, it doesn’t lead.

The fact is that plaintiffs do not prevail in reality, as much as they do in the press, since the press only covers the big hit plaintiffs, and not the defense verdicts, or the small verdicts plaintiffs are awarded. When is the last time you read a news story headline: Allstate Insurance company attorneys prevail in minimal impact auto case? It just doesn’t happen. I know, because I’ve both defended such cases and even prosecuted some as well. Or, who remembers reading that the courts reduced the big punitive damage award the plaintiff won at trial? Such news, is not news, because people just aren’t interested. It isn’t exciting. It isn’t provocative. It doesn’t grab you by the throat. The media ignore it.

The system has built in protections against the unjust verdict, whether too large, or even to small. As the above studies demonstrate, courts routinely reduce verdicts–yet they are un or under-reported in the press. The so called tort reformers don’t bother to deal with these facts in their unrelenting assault on Americans’ constitutional right to a jury trial in a civil case. The L.A. Times series on tort reform puts the hot button issue into some perspective. A perspective sorely lacking in today’s clamor for tort reform at any cost, including the Constitution.

Coverage of Big Awards for Plaintiffs Helps Distort View of Legal System

# In most such cases, the verdicts are either later rejected or the amounts are severely lowered.

By Myron Levin, Times Staff Writer

When a jury sticks it to a huge corporation, it’s always big news. A crushing verdict of $4.9 billion against General Motors Corp. in Los Angeles drew massive media coverage, as did a $5-billion award in the Exxon Valdez oil spill case and a $144.8-billion thrashing of the tobacco industry in a Florida class action.

Mega-verdicts such as these have helped fuel legislative campaigns to overhaul the legal system by limiting lawsuits and jury awards. Driving the crusade for what business groups call tort reform is the notion that frivolous suits and jackpot judgments are strangling the economy.

While acknowledging that excesses no doubt occur, many legal observers say there is no evidence that people are filing more lawsuits or that juries are getting more generous — indeed, there is some data to the contrary. And mammoth verdicts, in the rare cases in which they occur, almost always are tossed out or sharply reduced later.

Feeding the perception of a crisis in the legal system, they say, is the way the news media cover the courts.

After the big headlines, critics say, the media often drop the ball, losing interest in what happens later. Published studies of news content and a Times examination of major recent cases show that when the immense verdicts were overturned or dramatically reduced, the news frequently was banished to the inside pages or simply not reported.

Legal experts and media observers say such coverage gives a distorted picture of the civil justice system while lending credence to fears of irrational jury awards. News coverage has reinforced the message “that the system’s out of control, and that juries are using the tort system to redistribute wealth in some unjust and unprincipled way,” said Robert MacCoun, a professor of law and public policy at UC Berkeley.

The popular view that there are more lawsuits and bigger damage awards than ever before is not supported by available evidence.

A 35-state survey by the National Center for State Courts found that the number of tort filings declined 4% from 1993 through 2002 despite population growth. And in the nation’s 75 largest counties, the median award to victorious plaintiffs was $37,000 in 2001 — much less than the inflation-adjusted median of $63,000 in 1992, according to the Bureau of Justice Statistics, a branch of the U.S. Department of Justice.

If such context is absent from news reports, it’s not because of media bias but “the holler of the dollar,” said William Haltom, a professor of politics and government at the University of Puget Sound and co-author of “Distorting the Law: Politics, Media and the Litigation Crisis.”

News coverage is “in favor of the noteworthy and the attention-arresting,” Haltom said. Journalists “are expected to produce something that someone is going to want to watch, listen to or read.”

“From the media’s perspective, extremes are news,” New York University law professor Stephen Gillers said. The humdrum workings of the legal system, with its minor traffic cases and contract disputes, he said, is “completely distorted by the emphasis on what I would call the grotesque or extreme cases.”

At the same time, no one would argue for covering fender-bender suits instead of big cases with broad implications. And plaintiff victories are legitimately more newsworthy because they change the status quo — moving money around and exposing dangerous products or financial wrongdoing.

But that can give a skewed impression of what typically happens in the courts, because research shows that news coverage shapes perceptions of the frequency of events.

For example, surveys show that people generally believe they face a greater risk of dying from widely publicized disasters such as fires and murders than from diseases like diabetes — when the opposite is true. Haltom said “it’s reasonable to presume that people who read about all sorts of plaintiffs’ victories get an inflated notion of how often plaintiffs win.”

Certainly, plaintiffs prevail less often in the real world than they appear to in the news media. Consider:

• A 1999 survey by Rand Corp.’s Institute for Civil Justice found auto liability cases were 12 times more likely to draw news coverage when plaintiffs won than when defendants did, a difference the study called “very stark.” In its review of 351 trials conducted during the 1980s and ’90s, the institute found that 38 of 92 plaintiff verdicts, or 41%, were featured in news reports, versus 9 of 259 verdicts for the defense — or about 3%.

A plaintiff win “is perceived to be more newsworthy than a headline that says ‘jury rejects arguments that a product is unsafe,’ ” said Theodore Boutros Jr. of law firm Gibson, Dunn & Crutcher, who has represented Ford Motor Co., Wal-Mart Stores Inc. and various news organizations, including The Times.

Reflecting the pattern was news coverage of a June 2004 verdict in which a San Diego jury ordered Ford to pay $367 million to Benetta Buell-Wilson, who was paralyzed when her Explorer SUV rolled over and its roof collapsed. Ford previously had won a dozen similar Explorer cases but the media hardly batted an eye. Ford’s victories received a smattering of coverage, mainly in business and legal publications, whereas the Buell-Wilson verdict was widely reported by the mainstream news media.

• A 1995 article in the Hofstra Law Review showed that personal injury verdicts reported in the New York Times and Newsday were dramatically higher than typical awards in the New York courts. According to the survey, awards covered by the New York-based papers over a five-year period were 13 times and 9 times higher than average, respectively.

• A 1996 survey of leading magazines such as Time, Newsweek and Fortune showed that plaintiff verdicts were “considerably overrepresented” in reports on civil litigation. The examination of 249 articles by Daniel S. Bailis and UC Berkeley’s MacCoun found that plaintiffs were victorious in 85% of cases cited in the articles, compared with a real-world average of no more than 50%. Damage awards cited in the articles were also several times above the norm, leaving “little doubt that the selective reporting practices … provide a tremendously distorted picture of the jury award distribution,” the study said.

A review of some recent high-profile cases by The Times showed newspapers that extensively covered huge damage verdicts seemed to lose interest when the awards were slashed or overturned. The review involved a computer database survey of articles about the cases and follow-up queries to newspaper librarians.

One such story was the $5-billion punitive damage award in the Exxon Valdez oil spill case. At the time of the verdict in September 1994, front-page reports appeared in such major dailies as The Times, New York Times, Chicago Tribune, Philadelphia Inquirer, San Francisco Chronicle, Houston Chronicle, Detroit Free Press, Dallas Morning News, Seattle Times and St. Petersburg Times.

When a federal appeals court overturned the award in November 2001, three of the 10 papers reported it on the front page.

When a Los Angeles jury in July 1999 ordered General Motors to pay a then-record $4.9 billion in compensatory and punitive damages to six people burned when the gas tank of their Chevrolet Malibu exploded after a rear-end collision, the story made the front page of leading U.S. papers — including the Washington Post, Chicago Tribune, Chicago Sun Times, Boston Globe, Philadelphia Inquirer, Detroit Free Press, San Francisco Chronicle, Ft. Worth Star Telegram, San Jose Mercury News and The Times.

Coverage was sparser a few weeks later when the trial judge trimmed the punitive damages to a still-huge $1.2 billion. Two of the 10 papers ran the story on the front page.

Then in July 2003, while the case was on appeal, it was settled for an undisclosed sum. Brief items appeared in four of the papers, while no mention could be found in the other six.

When a Florida jury socked top cigarette makers with a $144.8-billion punitive damage award, it was the lead story for many print and broadcast outlets. Front-page reports on the July 2000, verdict appeared in The Times, New York Times, Washington Post, Chicago Tribune, Boston Globe, Miami Herald, Dallas Morning News, San Francisco Chronicle, Houston Chronicle and Indianapolis Star, among others.

When a Florida appeals court overturned the award in May 2003, two of the 10 papers ran front-page reports.

Other cases reviewed by The Times showed a similar pattern.

“Journalists, by and large, are not as good as they should be in keeping up with what happens after a large verdict — even though they know full well from experience that the verdict will most likely be cut dramatically,” said Tom Goldstein, a professor of journalism and mass communications at UC Berkeley. “There surely is less of an attention span than there should be.”

*
Times researcher John Jackson contributed to this report.