Litigation as Orignal Sin

In the last week I met with two different people who had been seriously injured in automobile crashes. Almost the first words out of their mouths were to apologize for even contemplating the filing of a lawsuit, as if doing so constituted an admission of a serious personal failing. They both said they never considered themselves the type of people who would ever file a lawsuit. Setting aside the fact that most people never do file lawsuits, and those that do frequently have no other choice, it occurred to me that people have been brainwashed into thinking that great hoards of greedy frauds are flooding the court systems of this country. This is simply not true. I would like to make a few points about some of the more prevalent notions currently cited to support this contrived crisis.
I think that most people would say that they believe that the numbers of personal injury lawsuits being filed in this country are increasing. Actually, the number of injury lawsuits has been declining for years. According to the National Center For State Courts, the number of personal injury cases filed in this country fell by 25 percent over the period of 1999 to 2008. Personal injury cases filed in 2008 were only 4.4 percent of all civil cases filed that year. That means that 95.6 percent of all civil cases filed in this country in 2008 were not personal injury cases. The Bureau of Justice Statistics compiled by the Justice Department show that the number of federal cases resolved in the United States District Courts fell 79 percent between 1985 and 2003.
Medical malpractice cases are frequently blamed for the skyrocketing increase in the cost of medical care in this country. Healthcare costs are certainly rising, but lawsuits against doctors and hospitals are not the reason. Lawsuits have nothing to do with rising healthcare costs. The Congressional Budget office calculates that medical malpractice cases amount to less than 2 percent of overall healthcare spending. Access to healthcare has not been widely affected by malpractice lawsuits according to studies done by the Government Accountability Office. Also, the idea that malpractice lawsuits are keeping people from becoming doctors is also inaccurate. The American Medical Association says that the number of physicians in this country has increased 40 percent, while the population generally has only increased by 18 percent. The number of emergency room doctors, neurosurgeons, and OB/GYN physicians has increased significantly according to data compiled by the U.S. Census Bureau.
The insurance companies would like you to think that insurance rates are going up because of an explosion of lawsuits. However, the insurance industry seems to be doing just fine. In 2004, the industry reported record-breaking profits of $38.7 billion dollars. In 2007 the industry reported profits which soared to $61.9 billion dollars. What happened to your insurance premiums over that same period? Why would insurance companies want you to believe that there is an explosion of lawsuits driving up premiums? Could it be that it might distract you from noticing that their profits also seem to be exploding at the same time?
Contingent fees used primarily by trial lawyers are also widely believed to be part of the problem. Most personal injury cases are done on a contingent fee basis. This means that unless the lawyer wins the case, he does not get paid. The argument is that the contingent fee lawyers are getting most of the money when a contingent fee case is settled. In Wyoming, contingent fees are strictly regulated by rules adopted by the Wyoming Supreme Court. Without contingent fees, most people could never afford to hire a lawyer on an hourly fee to pursue a case. Big corporations can afford to hire expensive lawyers who are paid top dollar hourly rates to defend their cases. Injured poor people cannot pay huge hourly fees to hire lawyers. Without contingent fees, middle class and poor people would have no access to the court system. From a lawyer’s perspective, taking a case on a contingent fee is like prize fighting. If you don’t win, you don’t get paid. This is the risk trial lawyers take in every contingent fee case. I wonder how many people would take a job if they had to work all week and then on Friday they had to fight someone and win in order to get paid.
I don’t believe that needing to file a lawsuit to pay your medical bills should ever be considered a personal failing. I find it ironic that the people who should feel guilty in this process are the people who negligently caused the injury. I can tell you that some of them probably do, but their insurance companies sure don’t. The reality is that the case is not going to be settled until the insurance company says so. Just once I would like to see a defendant in a personal injury case tell me that he was accepting responsibility for what he did because he would be too embarrassed to hide behind a contrived lawsuit crisis in order to try to escape personal responsibility by forcing a lawsuit to be filed in the first place.