A recent report conducted by the nonprofit consumer advocacy group, Public Citizen, has found what many of already knew – damage caps only serve to hurt the consumer and protect insurance and big business.

The report, “A Failed Experiment”, discovered that the 2003 Texas law that placed limits on settlement amounts in malpractice cases has done the opposite of what it is said to do.

Since 2003, Medicare spending and consumer healthcare costs have risen in Texas at a higher rate than the rest of the country.  In addition, the number of doctors in Texas hasn’t grown near the rate that was promised. Both of these results are what the law was supposedly enacted to avoid.

As somebody who witnesses the devastating effect this so-called tort reform law has daily, it is always good to see people and organizations that are willing to take the time to uncover the true facts surrounding the tort reform debate.  This is especially important during a time when conservative politicians, such as Rick Perry, are lining up to spread misinformation about these big business endorsed laws, despite the actual facts surrounding them.

Public Citizen’s report comes on the heels of the eye-opening documentary, Hot Coffee.  Hot Coffee does an amazing job of not only showing how tort reform has hurt citizens across the US, but also lays out the manipulative and deceitful tactics that were used to pass tort reform in the first place.  I really can’t recommend it enough.

If you or a loved one has been hurt by tort reform laws, leave comment and tell us about it.  Think tort reform laws are helpful? I would love to hear your reasons.

A disturbing scheme by insurance companies is killing victims’ chances of a fair settlement and it is something you MUST be aware of.  While it was my good friend and fellow attorney Ross Jurewitz of San Diego who brought the tactic up, I can assure you that this is not exclusive to California.

Basically, insurance adjusters are showing up to the homes of individuals who have been injured and offering them “X” amount to “settle” their claim on the spot.  In return, the victim must sign a waiver stating they will forgo any of their rights to legal action.

By approaching victims at their most vulnerable point, adjusters are able to offer disgustingly low amounts without any worry of ever being sued or required to pay a fair settlement.

For example, a single mother is rear-ended and injured while on her commute to work.  Because of her injuries, she is unable to go to work and gets behind on some of her bills.  Additionally, her vehicle is badly damaged and needs to be fixed.  It’s not difficult to see that she is in a tough position and some extra cash would go a long ways.

This is a perfect opportunity for the insurance adjuster’s scheme.  Preying on her vulnerability, the insurance company will approach her, many times coming to her home, and offer a check for an amount well below what she is owed.  All she has to do is sign a waiver saying she won’t seek additional payment or legal action.

Many times, the victim, not knowing better, and in an incredibly tough position, will take the quick money.  In reality, her settlement would likely be worth much, much more.

Not just a California thing, this manipulative way of doing business is used by various insurance adjusters across the country.  It’s a despicable way of doing business and, like many things, the best way to combat it is through education.

So, what do consumers need to know?

First of all, if you have been a wreck, do NOT sign ANYTHING until you have spoken to a lawyer.  This cannot be stressed enough.  Even if the insurance company isn’t offering one of these quick “settlements,” there is always a chance that what you are signing could be damaging to your case.

If the insurance company makes you an offer, you truly have nothing to lose by reviewing it with an attorney.  An experienced personal injury lawyer will either see that the offer is unfair and offer to represent you to get the settlement you deserve, or, if the offer is fair, they will let you know.

No matter what, just remember, the insurance company is not in the business of paying out quick, fair settlements.  If they are knocking on your door and offering you a check, you can bet that they are NOT looking out for your best interests.

The McDonald’s Case.  Everyone’s familiar with it.  A woman spills coffee on herself while driving and sues McDonald’s for tens of millions of dollars because the coffee was hot.  Just another example of an out of control litigious society and a person looking for quick money. Right?

What would you say if you discovered you were wrong?  That the “facts” of the case were not only distorted but were used in a concerted effort by big business and their cronies to restrict your access to justice?

An eye-opening film does just that – and much much more.

Hot Coffee is a new documentary that successfully pulls back the veil of deceit that spawned the tort reform movement fooled many into believing it would help consumers.  This movement, spearheaded in Texas, has led to crippling damage caps and obstacles to justice.

As a trial lawyer and advocate for individuals’ rights, I have seen firsthand the effects of tort reform on our citizens.  The deceit and backroom dealings that created the campaign for tort reform that resulted in far reaching damage caps are shocking.

Hot Coffee covers a lot of ground during its running time and isn’t restricted just to the facts of the McDonald’s case.  It accurately lays out the tactics that have been used to not only place caps on damages, but how juries have been silenced, employees have lost their day in court and how corporations and their lobbyists have poured their time and money into brazen efforts to elect pro-reform judges.  And it does all this in an entertaining, thought-provoking way using real world case studies and interviews.

I could go in depth about the events and facts discussed in the film, but honestly, it would be impossible for me to make the impact that this film does.  When you see the faces and hear the stories firsthand of those who have seen their access to justice unfairly ripped from them you will understand.

Hot Coffee is currently being shown on HBO, HBO On Demand and HBO GO.  For those without access to HBO, you can sign up for updates on DVD availability by visiting the film’s official website – www.hotcoffeethemovie.com.

I would also suggest that you check out the Take Action tab on their website.  There you will find information on how you can fight to overturn the decades of attacks on YOUR civil justice system.

A recent article in the Washington Post discussed the epidemic of wrong site surgeries in our operating rooms.  The article pointed out the increase in reported incidents despite mandatory safeguards that were put in place since 2004. You will notice the use of the word reported since hospitals are NOT required to report wrong site mistakes.

As part of the discussion, the author points out the lack of legal action as a contributing factor to this increase.  Unfortunately, she doesn’t expand on this.   I’ll do this for her.

It is true, attorneys are hesitant to take these cases, and many medical malpractice cases in general.  The fact is, damage caps and tort reform have made it impossible for lawyers to pursue every legitimate case presented to them.  Trying a medical malpractice case is extremely time consuming and expensive.

These types of cases are usually taken on a contingency basis.  This means the law firm flips the bill for the multitude of medical records, expert witnesses and so on.  Attorneys only collect money if a settlement or favorable decision is met and this can take years.

With the current damage caps limiting the total amount of money a person can receive, this has forced attorneys into only accepting those catastrophic cases that are financially possible for the firm as well as the client.

This is an issue I struggle with on a daily basis.  It is by no means easy to reject the cases of victims that come to us daily.  Many have a legitimate claim against a medical professional, but damage caps and tort reform have made it impossible to represent them because they weren’t hurt enough. It is just simply impossible and financially reckless to spend the time and money to pursue a case that will only result in a recovery that does not benefit the client or firm.

Knowing this, it’s not surprising to see the article cite a study that says only one in three of these wrong site mistakes result in a medical malpractice case.  While sad and extremely frustrating to both attorneys and victims – this is the current atmosphere we live in.

In many ways, the legal system has been manipulated from a source of justice and protection for individuals to a system of protection for corporations and insurance companies.

If you read this and feel angry, you should be.  Absurdly low damage caps do nothing for you as an individual.  All these so-called reforms do are protect those who injure individuals and dictate what your injury is worth.

Next time a politician says these reforms are there to drive costs down and help consumers, call them out for it.  It’s a blatant lie spread to limit your access to justice and protect the deep pocket books of those who contribute to their campaigns.  Not only have healthcare costs continued to rise, despite tort reform and damage caps, but so have instances of medical negligence and malpractice.  Remember this next time you are in the polling booth.

Wanna Know More?

Check out the eye-opening documentary, Hot Coffee. This critically acclaimed film does an amazing job of laying out the facts surrounding so-called tort reform.

You can currently catch it on HBO through the end of September.

Don’t have HBO? Visit www.hotcoffeethemovie.com to pre-order the DVD and learn more about the filmmakers and how you can take action!

Today, in the Texas House of Representatives, another piece of legislation seeking to shield corporations and big business from accountability will be debated.  House Bill 274 will only serve to make it more difficult for families and small businesses to hold large corporations responsible for their reckless and dangerous actions, and make no mistake; it will pass if we do not make our voices heard.

The so-called “Loser’s Bill” seeks to intimidate families and small businesses owners by making it virtually financially impossible for them to take legal action against those corporations and polluters who have put profit over safety and caused death, injury or financial devastation to Texans.

This piece of legislation will require Texas to should the massive legal costs of going after multinational corporations and their huge insurance companies.  That’s right.  Families and small businesses – not corporations – will be asked to pay the bloated legal fees associated with litigating these very necessary cases.

Lobbyists are calling this bill “Loser’s Pay” because that sounds better than what Texas Watch is more accurately calling “Families Pay.”  The facts are this – under this bill, to take a corporation such as BP to trial, you will be required to foot the legal costs for yourself AND their team of high priced attorneys.  This means you may have to empty your life savings to try and hold those who have harmed you accountable, and if you don’t win big enough, you won’t even recoup the money you were forced to spend in pursuit of justice.  As Texas Watch puts it, “even if you win, you still lose.”

If we allow this bill to pass, corporations will have an enormous financial deterrent against legal action and will have successfully insulated them, yet again, from accountability.  At the same time, they will be further depriving folks like yourself from your right to legal action.

What should you do?

Learn more about HR 274.  Call your State Representatives.  Visit Texas Watch and sign the petition.  This will be another in a long line of blow against individuals’ access to the legal system if we do not say “enough is enough” and stand up to these corporations and their lobbyists.

When logging into Facebook and checking in on your friends and family you become accustomed to going through a number of wall posts, shared links and direct messages.  This is one of the aspects of Facebook that many of us love – the ability to keep in touch with a number of people in several different ways all in one place.  And you want to think that everything you are clicking on is safe.  Unfortunately, not everything on Facebook is safe and potentially dangerous scams are increasing on the world’s most popular site.

Nowadays you can’t just get click-happy without first being cautious, as Facebook has become quite the popular destination for crooks to scam innocent people.  It’s easy to become a target as the manner in which they operate appears to be harmless.

Many people use the same password for virtually everything, and these con artists are wide aware of this.  Taking this into account, they use various phishing tactics to gain access to your password; which in turn gives them access to practically everything, including your financial information.

Through various games, apps, and messages they catch individuals off guard by asking questions similar to the security questions asked by banking websites, which are supposedly sent from a Facebook friend.

The following are some of the biggest scams making the rounds on Facebook today.

“Who knows you best” – If you receive this message, don’t fall into the trap thinking its fun game a friend has initiated.  These crooks use this technique to ask personal questions about you such as middle name, age, mom’s name, middle name, and so on. These clues are sufficient enough for hackers to take a stab at your password and possibly gain access to your financial info.

“Your friend just answered a question about you!” – It causes a whole domino effect on both the privacy of the supposed sender and yourself.  To view the response, it requests access to your name, profile picture, wall, and essentially your entire Facebook page even if you aren’t utilizing their app.  Once you have clicked to allow them access you’re stuck; their terms and condtions won’t let you to take it back. To top it off, to unlock the response it asks that you answer questions about various friends causing you to breach their privacy as well.

“LOL. Look at the video I found of you!” – Perhaps the most harmful scam involves this seemingly innocent message.  While your innate reaction would be to immediately click through and see the latest online viral sensation, you should be leery as many people have fallen for this scam. Once you click on the clip, you’re asked to upgrade and it’s all downhill from there; that single click allows them to install malware on your computer. The malware then records your keystrokes.  This allows the scam artists to determine what your passwords are.

“We’re stuck and need money” – It’s sent as an instant message claiming that the individuals are stuck in another country and need money.  A simple call to a friend or family member of the supposed victim can easily ease you of any doubts concerning that person being in actual trouble.

Virtually any website can fall victim to the creative and malicious endeavors of hackers and scam artists and just because Facebook is one of the biggest sites in the world does not mean it is free from this.  While Facebook works to combat the problem and upgrade its security, you should be very cautious of the links you click, messages you open and applications you allow to access your profile.

The birth of a child is the most amazing day of a parent’s life.  As a parent myself, there are no words to describe the feeling of witnessing one of your children being born and setting your eyes upon them for the first time.

Because of this, parents have been photographing and recording the birth of their children for years.  A video or photograph can capture this momentous occasion in a way that words never will.

Sadly, many parents may never have the joy of reliving this joyous occasion.  A disturbing trend is sweeping the country that seeks to bar parents from recording video or taking pictures during their child’s birth.

That’s right.  Parents across the nation are being told they cannot capture this moment like so many proud mothers and fathers have done before them.

The obvious question is why?

While hospitals have cited a need to reduce distractions, I find it hard to buy this explanation.  It is true the availability of cameras has certainly led to an increase in delivering room recording, but that doesn’t necessarily mean there is an decrease in delivery room safety.  Cameras, after all, have been in delivery rooms for decades and have only gotten smaller and more discreet.

With the small size of cameras and the advances in cell phone recording technology, it is very difficult to see how a loved one using a hand held camera can impede a trained doctor from doing their job safely.  If this was just about safety, then a better solution would be proper instructions for those loved ones who seek to record the event.

These rules against recording may have much more to do with doctors and medical professionals attempting to shield themselves from the use of photographic and video evidence should an issue of malpractice arise.

As a recent article in the New York Times points out, these bans are coming during a time a when medical malpractice suits are increasingly being supported by video evidence.

In that same article, Dr. Erin E. Tracy, an obstetrician at Massachusetts General Hospital (which bans recording) says, “I want to be 100 percent focused on the medical care, and in this litigious atmosphere, where ads are on TV every 30 seconds about suing, it makes physicians gun-shy.”

This is interesting because here you have a prominent doctor, a teacher at Harvard Medical School, pointing to the possibility of a lawsuit as a factor for the ban.  So, because there is a chance the video may be used as evidence in the event of a mistake, the parents should be deprived of the opportunity to capture their own child’s birth?

Whatever happened to transparency?  It is not as though these parents are recording for the purpose of gathering evidence.  Believe it or not, it’s not about living in a so-called litigious society at all – it’s about parents wanting to record an important moment in their life. Simply put, if the doctor and medical staff perform their job correctly, the existence of a video is not evidence, but rather a beautiful and important moment captured in time.

I would say to hospitals and doctors, do not penalize parents for the sake of protecting your own interests.  While you may see thousands of births a year, these parents see one. And they should be allowed to capture that moment.

If you have been online or have watched TV lately, you have more than likely saw the video of a young woman falling face first into a fountain while texting.  The video went viral over night; it should have, it was funny!

In this one short video you not only have the slapstick humor of someone falling (harmlessly into a public fountain, but also have a pretty accurate illustration of our current society.  A society so attached to our cell phones and their constant distractions that we sometimes forget about the simple things – like walking.

More than anything, it was just plain harmless comedy.

Well guess what? The young lady isn’t laughing and, along with her lawyer, has decided to make a mockery of our justice system by attempting to sue the mall and its security guards.

That’s right, Cathy Cruz Merrero, better known as Fountain Girl, is suing and has even (sadly) found an attorney willing to take her case.  Her attorney has said he will investigate the incident and decide how best to proceed.

Her attorney had this to say in a recent interview, “We are troubled by the fact that anyone at the Berkshire Mall responsible for releasing this video would find humor in an employee injured on the premises.”  He went on to say, “We intend to hold the appropriate persons responsible. No one from that security office came to her aid in a timely manner.”

A seemingly innocent funny video has now turned into a ludicrous case that will undoubtedly become a springboard for vitriol and rhetoric aimed at my profession.  I am no longer laughing.  I am furious.

Where to start?

How about with the actual incident itself?  Fountain Girl has nobody to blame but herself.  In the video, she is clearly at fault.  She was so engrossed in her precious text message that she couldn’t even look down and notice where she was.  It is not the mall or the security guards’ fault that she wasn’t paying attention.  Oh yeah, she is an employee of the mall, so there is no way the fountain snuck up on her.

Or maybe there is the fact that she wasn’t even injured.   She is upset because security didn’t try and help her after SHE almost HURT HERSELF.  Watch the video.  Does it even appear to be time enough to help her? She was up and out of that fountain faster than a cat that has fallen in a swimming pool.  Maybe if the security guards real names were Flash Gordon and Clark Kent they could have made it there in time to prevent her from falling in.  Instead, they did what any human being did.  They laughed.  Who couldn’t? They just witnessed a person walk directly into a fountain.

Another thing – you can’t even recognize her in the video.  It is far too grainy to recognize a face.  There is a good chance that if she would have stepped back from the situation and laughed along with the rest of the world, nobody would have ever known who Fountain Girl was and left it at that.

Instead, Marrero has decided to do the unthinkable.  She and her lawyer are doing immense damage to the legal system.  This is where we should all stop laughing.

You see, I spend every single day fighting for individuals who truly rely on the legal system for protection.  I, along with my colleagues, represent victims every day who have been injured or maimed by negligent doctors and nurses.  Children who will spend their entire lives suffering the effects of Cerebral Palsy because of a preventable birth injury.  Comforting and fighting on behalf of families that are torn apart and grieving because they lost a loved one to a drunk driver or defective automobile.  When you look at the cases I do on a daily basis, you begin to see the gravity of the situation.

The fact is, cases like this are not a joke; not just a pockmark on my profession, but also a slap in the face of those victims who have the right to legal recourse.

I am not talking about people who are out to make a quick buck or who are embarrassed by their own actions.  I am talking about real life victims of negligence and a corrupt insurance industry set up to deny everything.

Cases like Fountain Girl’s do a disservice to the whole legal system and society as a whole.  Read any blog or watch any show discussing this case and you are bound to hear the usual comments about the legal system.

“Ambulance chasers…”

“Sue happy…”

“Litigation is the American way…”

Sadly, the real cases and victims almost never make the news.  Nobody wants to hear about the good our profession does for society.  They don’t want to hear about the safety regulations created or the laws enacted to protect consumers due to landmark cases.

Why? Because it is not easy to make a joke about the baby that was torn from a young family due to a drop side crib malfunctioning and strangling them to death.

At the end of the day, this case will more than likely never be filed, and if it is, I am confident it will be thrown out.  Unfortunately the damage is already done.  The case of Fountain Girl has already given the opposition the ammunition it needs.  I just hope people realize this woman and her lawyer do not speak for an entire profession.

If kept, New Year’s resolutions offer an opportunity to better our lives.

Every January, millions of people take the New Year as an opportunity to make changes in their life.  I look at New Year’s resolutions as promises we make to ourselves to better ourselves in the new year. These promises can often span many different areas of your life and vary from person to person.  Although they can touch on different goals and aspects of a person’s life, resolutions are unified by the simple theme of becoming a better person and improving our life.

Resolutions vary from person to person, but there are several changes that are certain to be desired by many people.  You can be sure the top resolutions for 2011 will not be much different than those in 2010, 2009 or even 1999 for that matter.

Losing weight, eating better, stopping smoking, getting organized – these same resolutions are repeated year after year.  And every year, the same people fail to meet these promises to themselves.

The question is why?

My theory is that while it is normally easy to recognize areas of your life you desire to change – it’s hard to actually take the time to develop a real plan to achieve this desired change.  It is even harder to enact your plan and commit to real change.

It’s simple to say, “This year, I want to lose weight.”  It’s not as common to say, “This year, I will lose weight by doing X.”  To fulfil promises we make to ourselves, we must create a detailed path to follow.  Consider the following advice when making and enacting your changes for 2011:

1.    Recognize your need. Before you can move forward with your new resolution, you must decide what it is that you would like to change.

2.    Set goals. This is where it gets tough.  It is important to set up specific, attainable goals that are spread out over the course of the year.  Do it in a way that allows you to divide and conquer over the course of the year.

3.    Enact change. Now that you have smaller, shorter term goals ready to be met, it is time to make the changes needed to meet them.  Make no mistake about it, this is the hardest step.  It has all been talk to this point.  This step will often include major changes in behavior and lifestyle, but hopefully you have goals created in a way that will allow for a gradual acclimation to your lifestyle change.

4.    Accountability is key. Do whatever it takes to hold yourself accountable.  Tell loved ones of your resolution and goals so they can assist you in your journey.  Having another person there to hold you to your promise is a proven way to stick to your new lifestyle.

Another tool for accountability is to keep a journal or log of your progress.  This will help you to visualize and keep track of where you are in relation to your goals.  Also, do not forget to reward yourself when a goal is met.  You’ve earned it!

While resolutions are obviously not mandatory and there are many people that choose not to make them, I find them to be a great chance to reflect on our lives and an opportunity to alter our lifestyles in a positive manner.   Hopefully this advice will be of use to you throughout  the New Year.

As another year draws to a close, I find this a great time to reflect on the past 12 months, as well as look forward to 2011.  It has been a privilege to represent a great number of clients this year in a wide range of cases.  From car wrecks and product liability cases to daycare abuse and catastrophic birth injuries, we have been hard at work fighting for our clients’ justice and rights, securing well deserved settlements and verdicts, as well as holding individuals, businesses and companies accountable for their actions.

A Look Back at 2010

This past year has brought many changes to our firm personnel as well as the way we communicate and do business with our clients.  While I am very proud of the high standard of service our firm has provided over the past 15 plus years, I know we can always improve – and improve we have.

Evolving to meet the changing demands of our clients, utilizing advances in technology and staying on the forefront of policy and law changes are extremely important to myself and the success of our firm.  We are dedicated to providing the best representation and client experience possible and will continue to review feedback, take advantage of new technology and monitor the changing face of the legal world.

Take Time to Reflect

Before we begin to look forward to the coming year, we should take some time to reflect on those that may not be with us.  Because of the nature of personal injury law and the events that bring clients to our firm, we are exposed to a lot of peoples’ pain and loss.  One of the effects this has had is it brings a great deal of perspective to our lives.  It has given myself a true appreciation of life and it’s fragility.  Nobody is promised tomorrow, so never take what you have for granted.  Take some time this holiday season to truly count your blessings and remember those that you may have lost this past year.

Looking  Ahead to 2011

Looking ahead to next year, we are excited to continue to serve our clients.  We have come up with some great new ways to communicate, educate and give back.  Be on the lookout for new videos, a newly designed newsletter, more gift and prize opportunities, new websites and some exciting community charity initiatives.

Rasansky Law Firm really cannot thank our clients, past and present, our colleagues and peers in the legal and medical communities, and anyone else who turns to us as legal and safety authorities enough.  Without all of you, we would not be here and for that I am truly thankful.  We wish everyone nothing but the best this holiday season and of course, a safe and Happy New Year!