Trial Magazine

Taking care matters. A surgeon leaves an instrument in the patient; a nurse fails to treat a nursing home resident’s pressure ulcer; an accountant commits fraud. What happens when professionals don’t take care?

Trial lawyers meet an urgent need: We hold negligent professionals accountable and prevent harm by deterring future negligence. Many clients fall victim to medical negligence, nursing home neglect, and other forms of professional negligence. We take care of people after others don’t.

Medical negligence claims can be particularly challenging—from juror biases that favor health care professionals to settlement obstacles when insurance companies fiercely defend doctors. And damages caps limit an injured plaintiff’s full recovery. Crucially, caps impede justice and obliterate the critical deterrent factor at the heart of our work.

Since the 1980s, AAJ Legal Affairs has fought medical negligence damages caps on constitutional grounds. Working with plaintiff lawyers and state trial lawyers associations (TLAs), AAJ has supported efforts to roll back caps and participated in cases nationwide, including in California, Florida, Kansas, Missouri, New Mexico, Ohio, Texas, and Wisconsin.

In Estate of McCall v. United States, for example, a multi-year effort resulted in a landmark 2014 Florida Supreme Court decision striking the noneconomic damages cap for wrongful death medical negligence cases. McCall led to that court’s 2017 decision in North Broward Hospital District v. Kalitan, striking the remaining medical negligence noneconomic damages caps. AAJ continues to protect the right to have a jury—not a legislature—determine damages.

AAJ’s Research and State Affairs departments work with state TLAs to prevent damages caps from being passed. This includes providing medical professional liability trends analysis, physician practice statistics, academic research overviews, legal analysis, and strategies to minimize the impact of caps. These departments also track legislation and maintain records of state statutes and legal precedents.

And AAJ continually fights medical negligence tort “reform” at the federal level. In some Congresses, that means opposing damages caps and other typical tort reform measures, but provisions are sometimes more nuanced, such as medical licensing or telehealth provisions that regulate doctors practicing across state lines.

I am also so proud of the work that our members do to represent clients harmed by nursing home negligence. These are some of the most heart-wrenching cases that I’ve litigated—there is something indescribably cruel about the obstacles to justice and accountability. Families unknowingly sign away their loved ones’ rights when they admit them to a nursing home. When negligence occurs, residents or their families are then forced into arbitration. AAJ is fighting to end this vicious assault on the rights of the most vulnerable.

With the Ending Forced Arbitration of Sexual Assault & Sexual Harassment Act recently signed into law, we took a monumental step toward ending all forced arbitration and restoring our clients’ rights (p. 60). AAJ is now focused on addressing forced arbitration in other areas such as nursing home neglect. Also, the U.S. House of Representatives recently passed the Forced Arbitration Injustice Repeal (FAIR) Act, which would end all forced arbitration.

AAJ provides many resources such as the Professional Negligence Section (www.justice.org/sections), the Professional Negligence Law Reporter (www.justice.org/pnlr), and education programs such as the “Fundamentals of a Nursing Home Case” webinar series (www.justice.org/education). And in this month’s Trial, read articles on tips for remote depositions (p. 48); obtaining nursing home staffing data (p. 28); nursing home medical records audit trails (p. 38); and settlement ethics (p. 18).

AAJ and its members meet an urgent need to fight for those harmed by professional negligence—no matter the challenges. By deterring future bad conduct, we prevent harm and are working to build a better world. Take care, everyone.

Navan Ward Jr. is a principal at Beasley Allen Crow Methvin Portis & Miles in Atlanta and can be reached at navan.ward@justice.org.