How the Tort System Really Works

I thought that I’d briefly discuss a case that shows how the legal system really works with tort claims. As the November elections approach we are no doubt going to hear quite a bit about run away jury awards and the poor, long suffering businesses and insurance companies.

In truth only about 4% of the cases filed ever make it to trial (according to King County records), as plaintiffs are subjected to withering pretrial procedures that drag out their cases for years.

Rivas v. Overlake Medical Center has been pending for nine years and Susan Rivas, the plaintiff, has yet to get her day in court. She went to Overlake Hospital for a procedure after which she was placed in intensive care for four days, then told that she would lose her kidney. With all hope of saving the kidney was lost she filed suit three years and two days after the operation. Overlake and Dr. Muraki, her doctor, replied saying the suit was too late. The three year statute of limitations passed two days before the suit was commenced.

Nine years later her case got to the State Supreme Court, which held on August 7 that the stature of limitations had been tolled for the four day period in which she was in intensive care. This gave her four extra days, so she is not barred by the statute of limitations from suing. She can now have a trial. (Justices Fairhurst and Alexander dissented saying that the statute of limitations should be strictly enforced.)

Most plaintiffs by this point would have given up and it remains to be seen whether Susan Rivas will have the resources (spiritual, mental and financial) to actually have a trial.

If say she has a trial in the next year or two and wins, then the defendants’ insurance companies can appeal the decision. So it is quite possible that even if she wins at every stage from here on out, it could be five or more years before she recovers any money whatsoever, assuming her health holds out.

Washington has no punitive damages that are available to her, so she will be entitled to receive only the damages that she can prove that she suffered directly due to her injury. You can see that insurance companies benefit by delaying payment 15 or more years.

Tort reform would further reduce Susan’s recovery by imposing an arbitrary limit on the amount she could receive. The effect of such a law would not only be to deprive people like Susan Rivas from receiving full compensation, but even more important to the insurance companies it would discourage people from filing suit and no doubt reduce the 4% of cases that survive pretrial procedures to say 3% or 2%.

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