New York Personal Injury Law Blog: Medical Malpractice Economics

New York Personal Injury Law Blog: Medical Malpractice Economics
This is a great article on why lawyers do not start claims with no merit. Rather they carefully look at whether a claim should proceed at all. Any lawyer who know what they are doing avoid any claims that have only a slight hope of succeeding. One unsuccessful claim with the loss of costs and overheads incurred can break a law practice. So next time doctors complain that lawyers are making frivolous claims and increasing their insurance costs you should know that there are no frivolous claims because lawyers cannot afford to run them. This article explains it very clearly.

Tort Reform: Accident Compensation Insurer Rip Off

There are plenty of people who slander the victims of personal injury and say that there is lack of “personal responsibility” when the injured seek compensation for the work injury, motor accident, medical negligence or public liability injuries. They call themselves tort reformers. Torts is the branch of law that deals with personal injury claims. I will write another time of the actual law that personal injury compensation is decided on.

The funny thing is that people who call for ‘personal responsibility’ are really saying that if you are injured you must cop it and the person responsible and their insurer should get off Scot-free.

However when the tort reformists or their families are injured they are shocked that they cannot get fair compensation. In the US the same people who called the victims of personal injury ‘bludgers’ bleat like sheep when they suffer an injury. The NY Personal Injury Law Blog gives a great example where a doctor who supported law to stop medical negligence claims lost his mum due to an undiagnosed bowel obstruction during a knee operation.

Don’t be fooled. Personal injury compensation law grew up over 200 years to right wrongs. Unfortunately the insurers were able to influence public opinion and lawmakers overnight to overthrow a system that was built carefully to replace it with an unfair and hard to understand mish mash of blah that makes compensation a mystery. Why does an injury in a motor accident in one state give you completely different levels of compensation when it happens in another state? Why does a work injury pay less than an identical injury caused by medical negligence?

workers compensation death benefits

It is hard to understand how in Australia wrongful death claims caused by negligence are compensated less than claims where an injured person survives. In the US you hear of claims where families of people killed at work or by negligence get millions of dollars for grief even in the case of babies dying. In Australia there are no damages for grief. The only compensation claimable by Australian surviving family is where a deceased had dependent children and partner or where the death has caused a diagnosed mental illness in a survivor either from grief or witnessing the death.

As babies, children or even young adults without dependents are not supporting anyone so most claims in such cases succeed only if members of the family are mentally ill as a result. The same applies to wrongful deaths in the aged too.

However re workers compensation it is not all bad news. The various workers compensation schemes in Australia all pay lump sum and dependents’ benefits to the dependent survivors. These workers compensation schemes vary in generosity.

Surprisingly though the NSW government has recently increased the no fault lump sum benefit to dependents of deceased workers. The benefit of $331,250 has been increased to $425,000 which is very good.

It allows the lump sum benefit to be paid to a worker’s estate where the deceased leaves no dependents. This is a very good reason to make sure any worker should have a will. If a worker without children or spouse dies without a will it is expensive and difficult to have a court administer an estate. A will can direct payments to those who the worker has made up his or her mind as needing it. Eg a brother or sister with a disability or parents.

It ensures too that workers compensation weekly payments to a dependent are not reduced because of partial dependency. However, partial dependency may still be taken into account when apportioning the lump sum between multiple dependents.

These workers compensation reforms are retrospective and apply to deaths that occur on or after 24 October 2007, and are as a result of workplace injuries that occurred on or after 30 June 1987. It is possible for those who have already claimed to claim a top up benefit.

Remember too that in some cases there may have been negligence in how the worker died who earned a great deal more than the workers compensation no fault benefit. If that is so then a claim for damages may be possible too at common law. There are caps though.

I am an avowed opponent of what NSW has done to injured peoples' rights in workers compensation, motor accidents and public liability but this is a definite step in the right direction.

Terence O'Riain