Tort Reform and HBO’s The Newsroom

I have been watching a TV show on HBO called Newsroom for the last two years. Last night’s season finale was overly romantic, enjoyable and as a plaintiff’s lawyer (that means I represent individuals typically against companies) I particularly enjoyed a tete a tete between two characters (one of whom is an employment lawyer).

A smart young producer (Don) who is named in an employment discrimination lawsuit goes off on frivolous lawsuits and lawyers. As the WSJ recaps Don “makes a great speech about how stupid society has become. For example, why must we have warning labels that say: pudding will get hot when heated; shower cap fits one head; do not iron clothes while wearing them.” The diatribe also includes how tort reformers may have a point and frivolous lawsuit should be stopped.

I agree. Without a doubt, frivolous lawsuits should be stopped. And I am here to tell you Virginians, that they already are.

When lawsuits without  merit in Virginia are filed, there are pretty clear cut ways to get these cases thrown from court before years of time and money is wasted.

And like other states, there are penalties for filing frivolous lawsuits. Lawyers have to pay fines (sanctions). Their clients may have to pay the other side’s attorneys fees. Cases are dismissed, and frivolous lawsuits don’t get very far.

So when I hear we need tort reform, to “end frivolous lawsuits,” I get mad. There are already stop gaps in place that prevent people from benefitting financially by baseless claims. And if further measures are taken, than it simply makes it harder for real and actual victims to seek justice.

Do you think the following case is frivolous?

84 year old woman is dropped from mechanical lift because staff fails to follow facility policy and use equipment appropriately. The drop is so significant the patient suffers internal injuries, punctured spleen, broken ribs, and dies in months. The family is given no explanation or apology for their mother’s decline, death or pain.

Or what about this one?

Woman requires lock down unit because her Alzheimers is so advanced she wanders and cannot safely care for herself. Facility promises family they can provide such care, only family learns the doors are not watched or locked when Mother is found in parking lot bleeding to death from head wound suffered when she fell in the parking lot. Patient dies.

Is this case frivolous?

Resident is picked up and thrown across the nursing home into a cinderblock wall by another resident. She suffers a head injury and dies. The assailant had attacked other residents and because the facility wanted to keep his monthly payments, they refused to discharge him despite the fact he was clearly a danger to others.

What if that was your mother, dropped, ignored, assaulted. Would you want or seek justice? Yes. Yes, you likely would. And what if the laws (meant to prevent frivolous cases) prevented you from seeking that accountability? Is that right? Who wins when tort reform measures stretch so far and so long, that citizens are denied access to the courts to seek accountability.

Companies win, and no one else.

So before you carry the Tort Reform banner (like my friend in last night’s show) ask yourself – are frivolous lawsuits really being filed in my county? Do I know of people who are being forced to defend baseless claims? Or has my state already addressed these issues legislatively and by creating Rules of justice?

I think you will find Virginia has done a good job already of creating certain protections, and any additional reform will serve only to harm individuals when they have already been harmed.

Lauren Ellerman

Lauren Ellerman

In 2011, Lauren Ellerman was named "Young Lawyer of the Year" by the Roanoke Bar Association for her work in the community. To speak with Lauren about your personal injury case, contact her at lellerman@frithlawfirm.com.