Unfortunately, in Missouri and elsewhere across the country, people are seeing their basic human rights restricted, limited, and in some cases flat out denied. In car wreck cases, the insurance companies are waging a propaganda war against injured victims. Allstate has advertisements on TV that talk about how rear end collisions are often the fault of the person who "stops suddenly in front of you" and other ads talk about how wrecks without much property damage can not cause any significant injury. In workers' compensation cases, the laws in many areas now reward insurance companies for "starving out" injured workers and "wearing down" these workers so they take smaller settlements. And in medical cases, Americans are not entitled to the highest degree of care; individuals are only entitled to the lowest reasonable medical care.

These rules are not just disturbing, they are shocking. Innocent victims deserve basic human rights. My personal experience is that American patients should receive the highest quality of medical care, and that is always what I try to deliver. But again, in Missouri and most parts of the country, patients are only entitled to the lowest possible care that some "reasonable" health care providers may provide.

Perhaps medical malpractice cases are the most illustrative of the problem facing citizens asking for justice. There is little doubt in my mind that medical malpractice cases, in general, are the most difficult cases to win. To begin with, doctors and hospitals are naturally sympathetic figures to a jury. Additionally, with all of the advertising insurance companies have recently conducted, they have effectively poisoned potential jurors into believing that doctors are being sued needlessly. In the past couple of years, lawyers across the country have observed that, as a direct result of the insurance industry's advertising, juries are returning fewer and fewer verdicts in favor of plaintiffs like you and are returning more verdicts in favor of the doctors. In fact, former President George Bush, in his acceptance speech at the 1992 Republican Convention, stated that "slick lawyers are suing doctors and it ought to stop." In 1996, Republican presidential nominee Bob Dole repeatedly stated that the "trial lawyers need to be stopped." Then in 2000 and again in 2004, Republican President George W. Bush said that medical malpractice lawsuits are "threatening access to care, threatening patient safety and the quality of health care, raising health care costs for all Americans, adding billions to Federal health expenditures." Although studies have shown these assertions not to be true, this rhetoric is often accepted by the public. When the wealthy insurance companies and doctors have this type of advertisement and support, it makes our job even more difficult.

Because of the ongoing negative publicity about medical malpractice cases and lawsuits and trial lawyers in general, fewer and fewer lawyers are taking and trying injury cases. So effective is this negative campaign that the largest and most powerful group of trial lawyers in the nation went to the extreme of changing their name, deleting their very identity - "trial lawyers". They were the Association of Trial Lawyers of America, now they are the American Association for Justice.

In fact, the proposal of President Bush and the Republican legislature would have done away with many people's ability to bring any action for negligence. Under their proposal, even if a FDA-approved device is defective and kills someone after it is implanted (such as a pacemaker), in some cases you would not be able to bring any action at all - zero recovery. On basic medical malpractice cases the recovery would be severely capped and they are trying to prevent people from getting quality attorneys by limiting attorneys fees at some point in the recovery to 15%. Basically, no quality lawyer will take any medical malpractice cases except ones with extenuating circumstances (which is close to where we are right now).

Also, the President Bush plan (if it ever became law) would allow the insurance company to make partial payments over a lifetime (when there is a recovery). For example, if a person ever received a verdict of $250,000 (the cap they proposed on non-economic damages was $250,000 - the most you could recover in that area) and your life expectancy is 25 years, they only have to pay $10,000 per year. In other words the insurance company could take $100,000 (much less than what they owe you) invest it at an annual return of 10% interest, and just pay you the interest each year. That way, when you die, they get their $100,000 back and really paid you nothing. After all, that was your money they invested (actually they owed you $250,000, not $100,000, but under President Bush's plan, this malpractice victim gets zero, not even one penny, except interest on the insurance company's money). This form of recovery is now the law in Missouri. No wonder insurance companies contribute so much money to the Republican party.

As you can see, this is very harmful to people who have already been devastated. And, if this was not bad enough, there are more proposed limitations, several pages of them. Of course all of this is in violation of the 7th Amendment to the Constitution of the United States, but to President Bush and most of the Republican legislature this is just an ancient document that needs to be slowly whittled away. Big business and insurance companies can buy off politicians but they cannot buy off juries (one of the reasons we have juries) so they believe it is necessary to slowly do away with juries and the 7th Amendment to the Constitution of the United States. My friend Gerry Spence once said that in America we now have a king - the wealthy corporations. If that is the case, then the king of kings is certainly the "insurance corporations."

On top of all the negative impact from the insurance companies, Republican strategists, and George Bush, to be successful in any medical malpractice case, we must prove at least three things. First, we must prove negligence of the health care provider (that the doctor was unreasonable). Secondly, we must prove you have been damaged. Thirdly, we must prove that the negligence directly cause or directly contributed to cause the damage (that the unreasonableness itself caused you harm - causation). Increasingly, unless the negligence and damages and causation are relatively clear cut, juries are returning verdicts in favor of the health care providers.

Additionally, many malpractice cases cost between $50,000 and $100,000 to bring to a trial (and this does not include attorneys' fees). And this is usually a minimum with some cases costing over $250,000 to get to trial (one complex medical malpractice case cost over $300,000 to try). The $50,000 - $250,000 in expenses is comprised of numerous litigation related expenses. There are fees paid vocational experts, life care planners, focus group consultants, to various doctors for reviewing medical records, reading the depositions of witnesses, testifying in deposition, shutting down their practice to come to trial, traveling to trial, and testifying at trial. Then there are the deposition expenses of the people you sue, expert witness fees to the opposing sides' experts when we take their depositions, and the filing fees. There are also the travel costs to meet with our experts, costs to prepare exhibits for trial and other numerous expenses that are involved in preparing a case for trial.

Additionally, the Republican legislatures have restricted recoveries in numerous areas, in numerous states throughout American. Nowhere is this more clear than with "Caps". Caps limit recovery of non-economic damages/losses. In Kansas the caps apply to all types of personal injury cases, from car wrecks, to defective products to medical malpractice cases. In Missouri, the Republican cap applies to all medical malpractice cases. This cap, this limit on recovery for what it means to be a human being, eliminates cases for many of our older and non-employed populations whose injuries do not result in future medical needs (i.e., no economic loss). The people affected the most are stay at home moms, retired moms and dads, children and grandparents. For these people, if there are no economic losses, the most the person can recover is the "cap" (if the cap applies to their case). In Missouri the cap is now $350,000. In other states that have the cap it is more or less. But if you look at what the average malpractice case costs to try, then consider that unless the negligence, damages and causation are fairly clear cut most cases are won by the defendants, it soon becomes clear that the states that have caps are eliminating the valid claims of many citizens. I hate to bring in these cold economic terms, but it is an honest factor in our decision making process. To be free-spoken, there will be few "cap only" cases we take from here on out. (Republican legislatures have really done a number on people).

As the deck is stacked more and more against the common person, it has become an extremely expensive matter to pursue some cases, and with all the "jury poisoning" there is a significant probability that some valid cases will not be successful. Of course, this is just my opinion and I have give a definitive answer to many people who call in. While my office is unable to take most callers' cases, I strongly recommend that people contact other attorneys to see if someone else will take the case.

In light of the foregoing, it is often my advice to clients with potential malpractice cases (and other cases for that matter) that it is not economically wise for our office to pursue a lawsuit. I hate to put it in those terms, but that is the plain fact. I think many cases are, at best, difficult to pursue. Unfortunately, in my personal opinion (which may be wrong), I must pass on many cases because I do not believe that it would be advantageous to pursue a claim and, therefore, I must respectfully decline representation.

I do want to add that lawyers are like doctors, in that many times their opinions differ. It is entirely possible that another attorney would evaluate a case differently. Lawyers are sometimes wrong, and I certainly have no objection, nor would I be offended, if a person wants another attorney to give his or her opinion on a case as well. In fact, as with a good physician, I believe a good lawyer should encourage a second, third or more opinions when possible. I, therefore, recommend people seek a second, third, or as many opinions as they desire. I encourage this.

I cannot stress strongly enough that people should be aware that a statute of limitations (a time limit) will run with respect to their case. In simple terms, the statute of limitations, once it expires, forever bars a person from bringing a lawsuit in their case. Each state varies in their statute of limitations. The main point being that if a person wants to pursue any matter, they should do so immediately. I can not stress strongly enough that if a person wants to look into a potential case, if they intend to contact another attorney, they should do so immediately.

I have not and I am not making any definitive comment on when the Statute Of Limitations will expire in your case! I am merely saying that if you or anyone is going to get opinions you should start immediately.