Protecting Sports Players

As an update in our posts about protecting our sports players from traumatic head injuries, we’d like to bring your attention to a couple recent New York Times articles.

First, WSAJ’s Law Day keynote speaker Congresswoman Jan Schakowsky asked Jeff Miller of the N.F.L. whether “there is a link between degenerative brain disorders like C.T.E.,” to which Miller responded, “Certainly, yes.” Schakowsky called out the NFL’s history of denying the relationship between the sport and C.T.E., saying the organization “has a very troubling track record of deying and discrediting scientific inquiry into the risks of playing football.” Thank you to Congresswoman Schakowsky for pushing for the truth for years.

Second, the NYT has found a spurious connection between the N.F.L. and the tobacco industry – an industry known for covering up threats to public health: they have been “shar[ing] lobbyists, lawyers and consultants.” In addition, the Times found that over 100 diagnosed concussions were omitted from the studies and research previously provided by the N.F.L.

We encourage efforts to better evaluate and uncover the effects of concussions in sports players.

Legislative Session Update

Thursday night indicated sine die for the legislative session and the governor has called a special session to continue work on the budget. As for WSAJ, our civil arbitration bill failed to advance out of Senate Ways & Means. While this was not an unexpected outcome, it is still very disappointing. We look forward to continuing this conversation in future years.

We also spent the session working on bills relating to Social Security, workers’ compensation, pregnant workers’ rights, guardianship, and protection for victims of sexual assault. We were proud to see the attacks on workers’ compensation defeated and to see a robust conversation unfold around ensuring a fair and just guardianship system. We will be continuing these conversations next year.

Civil Arbitration (MAR) Update

ICYMI, yesterday two EAGLE members of WSAJ, Celia Rivera of Olympia and Marshall Casey of Spokane, testified in the legislature in support of ESHB 1248, which would adjust the civil arbitration limits in Washington from $50,000 to $75,000, increasing the number of people and businesses who could seek justice without going to trial. This is an access to justice issue, making it possible for smaller cases to be heard without the expense of a full day in court.

Watch their testimony here:

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Thank you for the opportunity to be heard and to speak in favor of one of the most important court room efficiency and cost savings measures we believe you will see this year. The use of civil arbitration, known as the Mandatory Arbitration system, is along with the increased usage of District Courts, already saving the superior courts thousands and thousands of hours of court and judicial docket time, and saving litigants thousands of dollars in costs in every successful MAR case. Last year this committee expanded the District court usage across the state. This bill will dramatically expand the use of the arbitration system, with tremendous savings for the state, counties, citizen litigants and the small businesses that utilize this process. This is a true win-win.

Background:

Mandatory Arbitration (MAR) is used as a streamlined procedure for resolving disputes within our court  system when a claim is less than $50,000, exclusive of fees, interests or costs. An arbitrator reviews the case instead of a judge, and issues a decision. MAR is a simplified and economical tool for obtaining the resolution of disputes. It is also less formal than Superior Court with limited discovery, and allows for a much quicker resolution of disputes than going to trial. Arbitration can be completed in 2-3 months instead of the several years in can take to get a date due to an overburdened court system. Cases are arbitrated within 2-3 months and the vast majority are resolved in that time, many without arbitration.

The MAR system also works efficiently by incentivizing both sides to come to the table to reach a good faith agreement. This is because if an offer of compromise is rejected by one of the parties and a trial de novo is ordered, the requesting side must better its position in Court or beat a compromise offer, or risk paying cost and fees to the other party.

Forty-five percent of all filings in our state’s Superior Court are civil cases. The remaining cases include criminal (15%), domestic (14%) and other (26%). All criminal and domestic cases are heard ahead of any civil action, thus showing MAR as a useful tool in quickly resolving civil disputes.

The MAR system was first passed into law in 1979 and implemented in 1980. The program was originally made discretionary for counties to adopt, but the Legislature later mandated its use for all counties with a population of 150,000 or more. A filing fee of $220, paid by the plaintiff, covers the cost of the program. 

The program is so successful and cost-efficient, its jurisdictional limits, $10,000 originally, have been consistently raised to take on more cases and ease court congestion: $15,000 in 1982; $25,000 in 1985; $35,000 in 1988; and $50,000 in 2005 (population requirement reduced to 100,000).

Changes to the MAR system made by HB 1248
As a useful tool for lessening the burden on our already stretched courts, HB 1248 will improve and update the MAR system by:

  • Raising the limits to $75,000, a compromise from last year’s bill;
  • Raising the filing fee from $220 to $250 (paid by the plaintiff), providing much-needed income that goes directly to our budget-crunched counties, and increasing the filing fee for requesting a trial from $250 to $350, another boost for cash strapped local county systems;
  • Require that an aggrieved party who is filing the trial de novo must sign the declaration providing more flexibility in scheduling and discovery by requiring hearings to be held between 21 and 75 days after filing.

The value of this concept:

WSAJ has reviewed extensive research on the MAR program, especially in King County where the Judges conducted an extensive survey over the last three years. In addition, a member of ours hired some college researchers to also look at great depth in the system as it exists around the Puget Sound area counties.

First, some results from the judicial survey. While this is limited to King County for now, we are gathering information from other counties, too, and we have looked at this now on a county by county basis as well as state wide. But King County does account for over half the state wide total of MAR cases, so it is a significant sample.

Over the last seven years, in King County, an average of roughly 1400 cases per year are noted for arbitration. It is worth noting that 42% of these cases settle before the arbitration is even conducted. Of the other 58%, two-thirds of the arbitrations resolve the dispute once and for all. Only about 33% of those arbitration awards results in a trial de novo request, and of those requests, approximately 10% of them actually go to trial. That is fewer than 2% of the total number of cases noted for arbitration. Up until a request for de novo is made, these case never enter a judicial docket.

This means that over 80% of these 1400 cases never require a single moment of judicial docket time. They are handled and resolved completely separate and apart from the judicial docket and cost the court system nothing. Those litigants get to see their cases resolved in a fraction of the time and for a fraction of the cost that a trial for the same case would have required.

Without going into too much statistical detail, we believe that looking at our responses in our own survey about how this change would impact civil litigation that the number of cases noted for MAR would increase by as much as 20-25% the number of cases moving on to the MAR track.  

The benefits from this are many and help all parties. The increases could raise as much as an additional $250,000 for counties through the increased filings and increase in arbitration fees, and also increase monies raised through the de novo filings by another $150,000 or so. (Please note, these are very rough projections because it is impossible to know what the exact impact will be. But I am happy to share my methodology with you.) The counties will save thousands of hours of court time and judicial docket time. The pressure on court funding by the state will be slightly alleviated.

An additional major consideration in looking at this bill is the fact that citizen-litigants and the defendants in these cases that go to trial spend as much is 10 times as much in out-of-pocket cost in the same case if it is handled through MAR. Literally, as much as 10 times the out of pocket costs. Cases that might cost $2,000 out-of-pocket going through mandatory arbitration can cost as much as $20,000 or more out of pocket to go to trial.  That is largely a result of the cost of expert witness time and other additional costs that trial requires, and of course it costs counties thousands of dollar an hour to run a jury trial. All these costs are reduced dramatically under this proposal.

This bill is a true win-win for all parties. The demands and the pressure on the state for additional judicial slots will decrease. Counties are perhaps the biggest beneficiaries as they will also see a tremendous reduction in the judicial dockets and pressures and the time and money spent conducting jury trials. At the same time they will also benefit significantly from the increase in the filing fees. Citizen litigants will see their cases resolved in a fraction of the time and for a fraction of the cost that they would have to spend to go to trial. This will be a dramatic increase in access to justice for run of the mill cases that nonetheless jolt the citizen’s life. Small businesses, who file between 25 – 30% of these cases will also enjoy the same benefits, and finally defendants will also enjoy a swift and certain resolution for a fraction of the cost and can go on with their lives.

It is not often that we have an opportunity to make such a simple and yet dramatic change that provides so many benefits. The MAR program is a very successful one and national model, and this takes it to a new level. The pioneers of this program and the original legislature that adopted it deserve great credit, and the sponsor and great group of co-sponsors deserve credit for bringing this idea forward.

Let’s build on the history of success, and let’s work together to pass SHB 1248. We look forward to working with you as this moves forward. Thank you for considering our views.

 

 

 

 

Future Medical Care- Longshore

WELCH&CONDON

If you have a Longshore* claim, and have not settled future medical care with an 8(i) agreement – then you have lifetime medical coverage for conditions related to your injury. That sounds great – but I like to tell my clients this does not mean treatment is  automatically authorized, it  means you have the right to fight about it.

The responsible carrier is always going to look for an argument that treatment is related to some new injury or workplace exposure. Such a new injury or worsening related to work activities can serve to shift liability to a more recent employer. That is not necessarily a bad thing – If your condition has worsened or been aggravated by a new injury or work conditions, it may well support a new claim. This may actually benefit the worker if wages have increased over time.

Whether to seek medical care under an…

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Tort Litigation

The Center for Justice & Democracy has just released their new briefing book on tort litigation! Fun takeaways:

  • Just 7% of civil cases are tort cases
  • Contract caseloads consist “primarily of debt collection (37%), landlord/tenant (29%), and foreclosure (17%) cases” – meaning it’s mostly consumers that are being sued
  • Only 15 percent of tort cases were decided by judges or juries
  • Less than 1% of the civil caseload is made up of medical malpractice or products liability cases

Read the whole thing to learn more! 

News Roundup

If you’re a regular reader, you’ll know that we have been following a several investigative series this year, including one from the New York Times on forced arbitration and one from ProPublica on workers’ compensation. This week, both have added recent updates we would like to bring to your attention.

Beware the Fine Print:

Debt collectors are one of the many industries subscribing to the corporate strategy to block consumers from the courts, but in a hypocritical twist, they are reserving their rights to sue these same consumers. The arbitration clauses are often from the contracts with the original lender, not the collectors themselves. Read more…

Insult to Injury:

At glamorous conferences for the “cottage industry of middlemen” in workers’ compensation, you can find everything from circus performers to Joan Jett shows, but what you won’t find? Injured workers. “If I was an injured worker at home wondering how I would pay my bills, I would be sick to see this,” said an insurance company manager. Read more…

Both of these articles expose disgraceful practices that hurt consumers and workers while protecting the pockets of the few. It’s time to start putting people over profits.

Concussion

AAJ just released its report Concussions and the Courthousechronicling decades of concussion incidents in sports and the corresponding research on the cognitive effects of repeated brain trauma. Their press release begins:

Professional and amateur sports leagues have finally begun to make key changes to protect players against traumatic brain injuries, largely as a result of major litigation against the National Football League (NFL) and other organizations, according to a new report by the American Association for Justice (AAJ). The civil justice system, through a small number of lawsuits, has driven a radical change in the health care approach to professional and student athletes. The report comes just days before the theatrical release of the movie Concussion, starring Will Smith as Dr. Bennet Omalu, a neuropathologist who first discovered a specific form of brain disease in former NFL players.

Each state has its own set of laws on concussions in youth sports. In 2010, only 10 states had laws addressing traumatic brain injuries in youth sports. However, since we in Washington state enacted the Zackery Lystedt law in 2009, all states and D.C. have enacted similar laws. As such, the report examines these laws and calls on all states to pass laws to require that:

  • Students who may have suffered a concussion be cleared by a health professional that is either a licensed physician, or someone trained specifically in Traumatic Brain Injury management;
  • Parents of students who have suffered a concussion are notified; and
  • Medical trainers be present at all games involving collision sports.

If you haven’t been following the recent news about concussions in sports, the NFL brain bank reports 87 out of 91 examined former players have tested positive for Chronic Traumatic Encephalopathy (CTE).

 

Med Mal Update

Whatever you’re doing, stop and read this 128 page medical malpractice briefing book from the Center for Justice & Democracy.

TL;DR? You can grab some of the highlights by taking a quiz instead! And of course, also reading these highlights:

  • Medical malpractice cases constitute only three percent of tort cases, even though…
  • Medical errors are the third leading cause of death in America.
  • Diagnostic medical errors, which most people experience at least once in their life, are almost twice as likely to result in death compared to other medical errors.
  • In half of all surgical procedures, there is some sort of medication error or drug adverse event.
  • Few injured patients file claims or lawsuits, and when cases are filed, they are not “frivolous.”
  • Tort deforms prevent legitimate cases from being filed, keeping injured persons from seeking justice.

CJ&D Executive Director Joanne Doroshow said, “It is not easy for someone who has lost a leg, their eyesight or a child to continue hearing from medical lobbies that they – the few patients who file claims – are the problem, as opposed to the medical negligence that caused these tragedies. We have an enormous patient safety problem in this nation, and the last thing we should do is try to solve it by increasing the obstacles sick and injured patients face…”

As we always say, the best way to reduce malpractice litigation is to reduce malpractice itself.

States with opt-out workers’ comp system are strict on injured workers

Post from Washington Workers’ Advisor.

Texas and Oklahoma have both adopted an “opt-out” system for Workers’ Compensation. ProPublica along with NPR recently published an in-depth look at the results in these two states. Under this system, employers can opt-out of state mandated workers’ compensation insurance by creating their own policy for injured workers. These employer-written policies give employers 100% control over the terms, the benefits, and even settlements.

Specifically, ProPublica and NPR found that these employer-created policies generally have strict 24-hour reporting requirements or even require an injury to be reported by the end of a shift. This means, if an employee does not report their injury within their shift, or within 24 hours, they are prevented from bringing a claim at all. Period. End of discussion. Employers can also dictate how much benefits will be paid and some employers have capped death benefits for employees who are killed at work at $250,000. Whereas under the State Workers’ Compensation system, if a deceased worker leaves behind minor children, they will continue to receive benefits until they turn 18 (which could easily end up being well over $250,000 when you factor in lost wages until the worker would have been 65). This is potentially detrimental to a young widow or widower who is left with very young children.

Read the whole post here.

Backroom Justice

Following the series on forced arbitration by the New York Times, there has been an outpouring of support for change. From Huffington Post to the Daily Kos, national and local outlets have covered the unjust practices keeping consumers and patients from exercising their 7th Amendment rights. Here are a few of our favorite excerpts.

Washington News Service:

Larry Tawwater, president of the American Association for Justice, adds there are situations in which arbitration is preferable to ending up in court. But his organization doesn’t think people should automatically have to limit their rights up front when buying a product or service or accepting a job. “If you decide after the fact, and both parties sit down and say, ‘OK, we will agree to arbitration on these terms,’ that’s OK,” he says. “But what this is, is bullying people into something they never agreed to, before they even knew there was a dispute.”

New York Times Editorial Board:

Reversing the broader trend of forced arbitration, however, will require public outcry loud and long enough to stir the White House and Congress to action. Many people interviewed in The Times’ series did not realize that their right to sue had been lost until they needed it. A common refrain was disbelief that this could happen in America. But it is happening, and it needs to stop.

Senator Al Franken and Representative Hank Johnson for the Huffington Post: 

These cases may not garner the same headlines as those involving public displays of religion or government surveillance, but they affect the rights, and the pocketbooks, of nearly all of us — something to keep in mind when evaluating not just the current Court’s record, but also future nominees.

Americans are beginning to understand that the game is rigged. Now we must take action to level the playing field.

Daily Kos:

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It’s time to take action on forced arbitration. Beware the fine print and contact your representatives.