As it has now down now annually for more than a decade, the American Tort Reform Association has released a new edition of its “Judicial Hellholes” report, and this year, ranking Florida No. 1. It was deemed the worst in terms of “judges in civil cases systematically apply laws and court procedures in an unfair and unbalanced manner, generally to the disadvantage of defendants.”
Do not be duped by this report, even if it gets circulated in various media reports. Here’s the truth of the matter: The ATRA is part of a well-funded public relations campaign (one that has been discredited numerous times by media outlets as well as state and national legal experts and academics).
It’s an organization that receives millions of dollars from deep-pocketed CEOs and others with business interests who want to make it harder for you collect damages if you’re seriously hurt. It’s prepared by a business-oriented group that takes a clear stance against personal injury lawsuits and sizable class action awards. The American Association for Justice refers to the report as “slick propaganda.” It plays on the erroneous theory that people and attorneys are getting rich off bunk personal injury claims.
Here’s the reality: It’s not easy to win a Florida personal injury lawsuit. Depending on the type of claim, there are numerous legal hurdles one has to clear just to make it to the trial phase. Settlement negotiations can be successful, but only if you’ve got a case that is reasonably more likely to prevail in trial than not. It also requires that you have a good personal injury attorney who is highly familiar with the law, case law precedent and effective legal strategies. High compensation verdicts and settlements are only awarded when there is solid evidence that plaintiff’s losses have been substantial – usually when there is serious and permanent injury or wrongful death.
The ATRA report bases its designation for Florida on a few recent decisions. One was a Florida Supreme Court ruling in Charles v. Southern Baptist Hospital of Florida wherein justices ruled a 2004 amendment to the Florida Constitution allowing patient access to adverse incident reports involving doctors they are suing for medical malpractice supersedes a federal law indicating these records should be confidential. The group claims this will discourage doctors from sharing information with the medical community about ways to limit future mistakes. But you know what else limits future mistakes? Accountability in the courts, most notably to those who have been directly harmed.
Other Florida high court decisions cited in the ATRA’s evaluation involved invalidation of arbitration agreements – particularly those involving nursing home patients. Of course, we know arbitration agreements are often mandatory when individuals are admitted to nursing homes, and they strip claimants of the ability to handle disputes (so often involving neglect, abuse and negligent care resulting in serious injury or wrongful death) in a court of law. Instead, they must go before an arbitrator and these outcomes are largely less favorable to defendant nursing homes. Plus, they are confidential, meaning future patients don’t have the benefit of learning which providers are lagging in quality of care. Further, the court did not wholly invalidate arbitration agreements, only those that are signed by a family member of the elderly, vulnerable victim.
The report also criticized the court’s refusal to enact the more stringent Daubert standard for expert witness testimony, instead opting to continue with the Frye standard. The latter is a general acceptance test to determine admissibility of scientific evidence that asks whether the scientific technique used is generally accepted as reliable in a relevant scientific community. Enacting the more stringent Daubert standard would make it harder for personal injury claimants to clear the initial hurdle, while keeping Frye doesn’t necessarily make these cases easier to win in the long run because they still have to clear all relevant proof burdens for any given claim.
The bottom line is the basis of this report’s conclusions are, at best, incomplete. The reality is it was specifically drafted with the goal of swaying opinions to limit injury plaintiff access to courts and compensation for damages. Our injury attorneys in Fort Lauderdale are committed to continuing to fight for the best interests of our clients.
Call Fort Lauderdale Injury Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.
Additional Resources:
The Worst Courts for Businesses? It’s a Matter of Opinion, Dec. 24, 2007, By Adam Liptak, The New York Times
More Blog Entries:
Federal Audit Finds Nursing Home Abuse Often Unreported to Police, Oct. 27, 2017, Fort Lauderdale Personal Injury Attorney Blog