Congress Should Pass The Arbitration Fairness Act of 2015

Posted On: November 19, 2015

I’m happy to report that the Springfield News-Leader has published an Op-Ed piece I wrote  explaining  why it’s unfair to permit forced arbitrations in employment situations.  That editorial can be found on the newspaper’s website here,  but  here’s the full text of what I wrote:

Congress should pass The Arbitration Fairness Act of 2015

Robert Curran
November 18, 2015

The Arbitration Fairness Act of 2015, recently introduced into the Senate, is a long overdue legal change which would prevent employers from requiring people to give up their constitutional rights in order to get hired. Many Americans have unknowingly agreed to give up those rights and submit any disputes to binding arbitration, usually because these provisions are buried in the fine print. The AFA would prevent those kinds of hidden provisions.

The Bill of Rights to both the United States Constitution and the Missouri Constitution specifically state that the right to trial by jury shall be preserved. The Framers did that because they knew that a fair legal system must have an impartial and objective decision-maker. While arbitration sounds good in concept, when applied to employee claims it is deeply flawed and unfair to the employees, because the deck is stacked against them.

The biggest problem is that arbitrators can’t be objective, because they have their own competing financial interests. The employer gets to pick the arbitrator, and the arbitrator knows that they won’t get hired next time if they rule against the employer today. The need to shield decision-makers from this kind of financial pressure is exactly why the Founding Fathers wrote in our Constitution that federal judges are appointed for life and that their pay can never be reduced (Bill of Rights, Art. III, Sec. 1). Those safeguards don’t exist in binding arbitrations.

Second, in arbitration there is usually no requirement that the arbitrator have any legal training or that they follow the law. It seems absurd to think someone who’s unfamiliar with the law can intelligently or adequately decide a legal dispute, yet that frequently happens.

Third, there is no way to appeal an arbitration decision, so mistakes can never be fixed. In our court system, appellate courts provide a safeguard to fix a judge’s mistakes. That oversight doesn’t exist in arbitration.

Last, there are no rules in arbitration. Unreliable evidence can be used, and witnesses can be sprung with no advance notice. Our court system’s rules of procedure and evidence, developed over hundreds of years to impart fairness and predictability, simply don’t apply.

Employers defend arbitration by claiming that the employee agreed to it. The simple truth, though, is that the average employee has no idea what binding arbitration is, or how unfair it is in practice, until after a dispute arises and they consult with a lawyer.

In short, employers use binding arbitration provisions because they want to make sure it’s not a level playing field, and because they fear the extraordinary power that 12 ordinary citizens are vested with under our Constitution.

Only Congress can rectify this injustice. The time has come for Congress to outlaw forced arbitration for America’s workers. The Arbitration Fairness Act should be passed, making binding arbitration agreements enforceable only if entered into after a dispute arises, not before.

U.S. Consumer Protection Agency May Make Unenforceable Financial Institution Contracts Which Prohibit Class Action Arbitrations

Posted On: November 13, 2015

The Consumer Financial Protection Bureau is a federal agency designed to protect average citizens from unfair business practices by big financial powerhouses, such as banks, brokerages and credit card companies.

The CFPB recently announced that it is considering a groundbreaking move: banning arbitration clauses prohibiting class actions, because they allow companies to avoid accountability to their customers.  It wouldn’t bar all arbitration clauses, unfortunately, and as currently drafted only prevents anti-class-action provisions.  That ban would apply to companies that issue consumer financial products, including credit cards and bank accounts.

While I don’t think this ban goes far enough, it is nonetheless a huge step, and the average American should be both cheering the CFPB and contacting them to encourage the agency to adopt that proposal. (The CFPB’s phone number is (855) 411-CFPB (2372)).

The CFPB’s actually doing its job and watching out for the average citizen is great news.  Financial industry trade groups (and the politicians on both sides of the aisle who depend on them for massive campaign contributions) have done everything they possible to stop the CFPB.  First, they fought hard to even prevent its creation.  They lost that fight, and the agency was created over their objection.

Then they fought hard to make sure the CFPB had no budget and therefore could not actually accomplish anything. They lost that fight, too.

Then they fought hard to prevent Elizabeth Warren, a law school professor who had a big hand in creating the CFPB in the first place, from being named the first Chair of the group.  They won that fight, but it backfired.   After being rejected as the first Chair, she turned the tables on the industry  by running for, and winning, a seat in the United States Senate.

Big business is still trying to disable the CFPB. Currently pending in Congress is H.R. 1266, a bill backed by many trade groups and members of the financial services industry industries, which would place leadership of the CFPB under a five-person “oversight board.”  In a letter sent to Congress supporting H.R. 1266, those backers said that industry oversight of the CFPB is a good idea, because:

A commission would serve as a source of balance and stability for consumers and the financial services industry by encouraging internal debate and deliberation, ultimately leading to increased transparency. Moreover, a commission would further promote the CFPB’s ability to make bipartisan and reasoned judgments to ensure consumers receive the protection they deserve, which in turn would help strengthen the economy; and would avoid the risk of politically motivated decisions causing uncertainty and harm to consumers.

Of course, this is complete hogwash and they mean nothing of the sort.  This is  obviously an attack on the independence of the CFPB and an attempt to bring the agency under the control of the financial industry, so they can prevent it from doing its job: protecting consumers.  These financial industry trade groups are the same ones who in any other context would be screaming that federal agencies are completely hampered by the slow “internal debate and deliberation” they  say would be a good thing at the CFPB.

Here’s the CFPB press release concerning this proposal:

CFPB Considers Proposal to Ban Arbitration Clauses that Allow Companies to Avoid Accountability to Their Customers

Proposal Would End the Free Pass Companies Use Against Group Lawsuits

WASHINGTON, D.C. — Today the Consumer Financial Protection Bureau (CFPB) announced it is considering proposing rules that would ban consumer financial companies from using “free pass” arbitration clauses to block consumers from suing in groups to obtain relief. Buried in many contracts for consumer financial products like credit cards and bank accounts, most arbitration clauses deny consumers the right to participate in group lawsuits against companies. With this free pass, companies can sidestep the legal system, avoid big refunds, and continue to pursue profitable practices that may violate the law and harm countless consumers. The CFPB’s proposals under consideration would give consumers their day in court and deter companies from wrongdoing.

“Consumers should not be asked to sign away their legal rights when they open a bank account or credit card,” said CFPB Director Richard Cordray. “Companies are using the arbitration clause as a free pass to sidestep the courts and avoid accountability for wrongdoing. The proposals under consideration would ban arbitration clauses that block group lawsuits so that consumers can take companies to court to seek the relief they deserve.”

Many contracts for consumer financial products and services include arbitration clauses. These clauses typically state that either the company or the consumer can require disputes about that product to be resolved by privately appointed individuals (arbitrators), rather than through the court system. Where such a clause exists, either side can generally block lawsuits from proceeding in court. These clauses also typically bar consumers from bringing group claims through the arbitration process. There are arbitration clauses in all kinds of consumer financial products, from bank accounts to private student loans. They affect tens of millions of consumers. As a result, no matter how many consumers are injured by the same conduct, consumers must resolve their claims individually against the company, which few consumers do.

In the Dodd-Frank Wall Street Reform and Consumer Protection Act, Congress required the CFPB to study the use of arbitration clauses in consumer financial markets and gave the Bureau the power to issue regulations that are in the public interest, for the protection of consumers, and consistent with the study’s findings. The CFPB’s study – released in March of this year – showed that arbitration clauses restrict consumers’ relief for disputes with financial service providers by allowing companies to block group lawsuits.

The study also found that, in the consumer finance markets studied, very few consumers individually seek relief through arbitration or the federal courts, while millions of consumers are eligible for relief each year through group settlements. According to the study, more than 75 percent of consumers surveyed in the credit card market did not know whether they were subject to an arbitration clause in their contract. Fewer than 7 percent of those consumers covered by arbitration clauses realized that the clauses restricted their ability to sue in court.

Today, the Bureau is publishing an outline of the proposals under consideration in preparation for convening a Small Business Review Panel to gather feedback from small industry stakeholders. This is the first step in the process of a potential rulemaking on this issue. The proposals being considered would ban companies from including arbitration clauses that block class action lawsuits in their consumer contracts. This would apply to most consumer financial products and services that the CFPB oversees, including credit cards, checking and deposit accounts, prepaid cards, money transfer services, certain auto loans, auto title loans, small dollar or payday loans, private student loans, and installment loans.

The proposals being considered would not ban arbitration clauses in their entirety. However, the clauses would have to say explicitly that they do not apply to cases filed as class actions unless and until the class certification is denied by the court or the class claims are dismissed in court. The proposals under consideration would also require that companies that choose to use arbitration clauses for individual disputes submit to the CFPB the arbitration claims filed and awards issued. This will allow the Bureau to monitor consumer finance arbitrations to ensure that the process is fair for consumers. The Bureau is also considering publishing the claims and awards on its website so the public can monitor them.

The benefits of the proposals would include:

  • A day in court for consumers: The proposals under consideration would give consumers their day in court to hold companies accountable for wrongdoing. Often the harm to an individual consumer may be too small to make it practical to pursue litigation, even where the overall harm to consumers is significant. Previous CFPB survey results reported that only around 2 percent of consumers surveyed would consult an attorney to pursue an individual lawsuit as a means of resolving a small-dollar dispute. In cases involving small injuries of anything less than a few thousand dollars, it can be difficult for a consumer to find a lawyer to handle their case. Congress and the courts developed class litigation procedures in part to address concerns like these. With group lawsuits, consumers have opportunities to obtain relief they otherwise might not get.
  • Deterrent effect: The proposals under consideration would incentivize companies to comply with the law to avoid lawsuits. Arbitration clauses enable companies to avoid being held accountable for their conduct; that makes companies more likely to engage in conduct that could violate consumer protection laws or their contracts with customers. When companies can be called to account for their misconduct, public attention on the cases can affect or influence their individual business practices and the business practices of other companies more broadly.
  • Increased transparency: The proposals under consideration would make the individual arbitration process more transparent by requiring companies that use arbitration clauses to submit the claims filed and awards issued in arbitration to the CFPB. This would enable the CFPB to better understand and monitor arbitration cases. The proposal under consideration to publish the claims filed and awards issued on the CFPB’s website would further increase transparency.

In addition to consulting with small business representatives, the Bureau will continue to seek input from the public, consumer groups, industry, and other stakeholders before continuing with the process of a rulemaking. When the Bureau issues proposed regulations, the public is invited to submit written comments which will be carefully considered before final regulations are issued.

An outline of the proposals under consideration is available at: http://www.consumerfinance.gov/f/201510_cfpb_small-business-review-panel-packet-explaining-the-proposal-under-consideration.pdf

A list of questions on which the Bureau will seek input from the small business representatives providing feedback to the Small Business Review Panel will be available on Wednesday at: http://www.consumerfinance.gov/f/201510_cfpb_small-business-representatives-providing-feedback-to-the-small-business-review-panel.pdf

The March 2015 report on arbitration is available at: http://www.consumerfinance.gov/reports/arbitration-study-report-to-congress-2015/

A factsheet summarizing the Small Business Review Panel process can be found at:
http://www.consumerfinance.gov/f/201510_cfpb_fact-sheet-small-business-review-panel-process.pdf

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The Consumer Financial Protection Bureau is a 21st century agency that helps consumer finance markets work by making rules more effective, by consistently and fairly enforcing those rules, and by empowering consumers to take more control over their economic lives. For more information, visit www.consumerfinance.gov

Binding Arbitrations Are Unfair, Because Arbitrators Make More Money By Ruling In Favor Of Companies So They Can Get Repeat Business

Posted On: November 2, 2015

I’ve written before about how forced binding arbitrations are unfair and that contract provisions taking away citizens’ Constitutional right to jury trials should be outlawed.  See my prior blog articles here and here.

In Part II of its lengthy piece exposing the injustice involved in forced arbitration clauses entitled “Beware The Fine Print,” the New York Times gave many more examples of how citizens’ constitutional rights are routinely being taken away, and why Americans need to get their lawmakers to change the rules to ban this perversion of justice.  The article gives many good examples of how unfair and un-American arbitration process is.

When they wrote our Constitution, the Founding Fathers thought long and hard about the best way to construct our government.  After much thought, they decided that the best plan was to make federal judges appointed for life, and embedded that principle in our Constitution.

They did this because  they realize that it was crucial to have an independent judiciary.   If citizens or lawmakers  can remove judges from office, or reduce their salaries, the Founding Fathers realized, then those judges’  decision-making processes will be corrupted by self-interest.   Instead of feeling free to do the right thing, judges would instead be worried about pleasing the people who could remove them from office or retaliate against them.

The  Founding Fathers recognized that a system where the decision-maker is not impartial cannot consistently dispense real justice.

And that, in a nutshell, is exactly why binding arbitration is unfair.  The New York Times articles do an excellent job  giving examples in explaining that  arbitration is fundamentally unfair because arbitrators are not independent; they have a significant financial interest in keeping big companies happy, because  the arbitrators profit from repeat business.   Why should an arbitrator ruled in favor of an individual who they will never see again?  By ruling in favor of the individual and against the company,  the arbitrator is financially shooting himself in the foot.

Binding arbitrations create the same system of self-interested decision-makers that our Founding Fathers worked so hard to prevent.

The series of detailed articles, written by Jessica Silver-Greenberg and Michael Corkery, is well worth reading, and can be found by clicking these links: Part I and Part II.

Here are a few  important quotes from the second article:

“Over the last 10 years, thousands of businesses across the country — from big corporations to storefront shops — have used arbitration to create an alternate system of justice. There, rules tend to favor businesses, and judges and juries have been replaced by arbitrators who commonly consider the companies their clients, The Times found.”

“The change has been swift and virtually unnoticed, even though it has meant that tens of millions of Americans have lost a fundamental right: their day in court.”

“This amounts to the whole-scale privatization of the justice system,” said Myriam Gilles, a law professor at the Benjamin N. Cardozo School of Law. “Americans are actively being deprived of their rights.”

“Winners and losers are decided by a single arbitrator who is largely at liberty to determine how much evidence a plaintiff can present and how much the defense can withhold. To deliver favorable outcomes to companies, some arbitrators have twisted or outright disregarded the law, interviews and records show.

“What rules of evidence apply?” one arbitration firm asks in the question and answer section of its website. “The short answer is none.”

“Like the arbitrator in Ms. Pierce’s case, some have no experience as a judge but wield far more power. And unlike the outcomes in civil court, arbitrators’ rulings are nearly impossible to appeal.”

“When plaintiffs have asked the courts to intervene, court records show, they have almost always lost. Saying its hands were tied, one court in California said it could not overturn arbitrators’ decisions even if they caused ‘substantial injustice.'”

“Unfettered by strict judicial rules against conflicts of interest, companies can steer cases to friendly arbitrators. In turn, interviews and records show, some arbitrators cultivate close ties with companies to get business.”

“Other potential conflicts are more explicit. Arbitration records obtained by The Times showed that 41 arbitrators each handled 10 or more cases for one company between 2010 and 2014.”

“Private judging is an oxymoron,” Anthony Kline, a California appeals court judge, said in an interview. “This is a business and arbitrators have an economic reason to decide in favor of the repeat players.”

“Who Has Arbitration Clauses?

“Many of the companies and brands you interact with have arbitration clauses built into their terms of service. Here are several:”

Netflix

AT&T

Time Warner

T-Mobile

Ebay

Expedia

Budget Rent A Car

Discover Card

EA Games

Starbucks

One arbitration company, “JAMS, a for-profit company, said it did the same and put extra protections in place for consumers and employees. “Their core value is neutrality — their business depends on it,” Kimberly Taylor, chief operating officer of JAMS, said of its arbitrators.”

But in interviews with The Times, more than three dozen arbitrators described how they felt beholden to companies. Beneath every decision, the arbitrators said, was the threat of losing business.”

“Victoria Pynchon, an arbitrator in Los Angeles, said plaintiffs had an inherent disadvantage. “Why would an arbitrator cater to a person they will never see again?” she said.”

“‘ It was a kangaroo court,’ Ms. Brenner said. ‘I can’t believe this is America.’In April 2014, a Florida appeals court upheld a decision to force Ms. Santiago into arbitration. “I obey what appears to be the rule of law without any enthusiasm,” wrote one of the judges, Chris Altenbernd, adding that he feared ‘I have disappointed Thomas Jefferson and John Adams.’

“Cliff Palefsky, a San Francisco lawyer who has worked to develop fairness standards for arbitration, said the system worked only if both sides wanted to participate. “Once it’s forced, it is corrupted,” he said.”

After losing in arbitration, the claimant’s “lawyers wrote to [the arbitrator’s] arbitration firm questioning [the arbitrator’s] qualifications. The firm, American Health Lawyers Association, responded that it was not its responsibility to verify the “abilities or competence” of its arbitrators.”

Having Banned Lawsuits Through Binding Arbitration Clauses, Big Businesses Now Try To Also Ban Class Action Arbitrations

Posted On: October 31, 2015

I’ve written before about “binding arbitration” provisions and how unfair they are because they deprive people of their day in court. (See my blog entry here entitled “Forced Arbitration Clauses Should Be Outlawed”).

The New York Times today published a significant article highlighting a new, devious twist on the usual binding arbitration provisions, one now being commonly used by big companies to not only prevent them from being hauled into court, but to prevent class action arbitrations as well.

What is a “Class Action”?

A “class action” is a type of lawsuit where one person sues to obtain compensation not only for themselves, but also on behalf of all other people in a similar situation. Class actions are efficient for both sides to the lawsuit, as well as the court, because they enable the court to resolve many large numbers of claims with just a single trial, instead of having thousands of trials over the same issue. They are a long-used mechanism to seek compensation when many people are in a similar situation.

Class actions are particularly necessary when the loss suffered by each person in the group is small, because no one person would have a sufficient economic incentive to file a lawsuit over the wrong. Suppose, for example, a cellular phone company intentionally and improperly overcharged the credit card of every one of its 40 million customers by $10. That cellular phone company has just wrongfully taken $400 million. But none of those customers is going to file a lawsuit over $10 because it doesn’t make economic sense. If somebody went to a lawyer and said they wanted the lawyer to file an individual lawsuit against that phone company over the $10 charge, the lawyer would tell them that the court charge just to file the lawsuit alone will be several hundred dollars, not to mention all the other expenses involved, including the lawyer’s time.

So the law allows a person who has been wronged to file a class action, suing the company on behalf of both themselves and all of the other “similarly situated” people seeking justice. While most lawyers would never consider filing a lawsuit seeking $10 in compensation, they sure would consider representing a class where the dispute is over $400 million.

The efficiency of class actions in holding wrongdoers accountable is exactly why big businesses don’t like them. Businesses use a “divide and conquer” type of strategy, routinely attacking class actions by claiming that there is insufficient similarity between the class members’ claims, and that the lawsuit therefore is not a proper class action.

Arbitration Provisions and Class Actions

The New York Times article, which can be found here, concerns the recent trend where big businesses bury in the fine print of their contracts provisions which not only prevent lawsuits and substitute binding arbitration, but require “individual arbitration,” and prohibit class arbitration. So in other words, big companies like American Express, having successfully avoided being hauled into court at all, now also want to prevent class arbitrations.

The article also discusses the intimate involvement of the Chief Justice of the United States Supreme Court, the Honorable John Roberts, in depriving Americans of their constitutional rights, both before he went on the bench and after.

I recommend reading the article in its entirety, but here’s a brief excerpt:

On Page 5 of a credit card contract used by American Express, beneath an explainer on interest rates and late fees, past the details about annual membership, is a clause that most customers probably miss. If cardholders have a problem with their account, American Express explains, the company “may elect to resolve any claim by individual arbitration.”

Those nine words are at the center of a far-reaching power play orchestrated by American corporations, an investigation by The New York Times has found.

By inserting individual arbitration clauses into a soaring number of consumer and employment contracts, companies like American Express devised a way to circumvent the courts and bar people from joining together in class-action lawsuits, realistically the only tool citizens have to fight illegal or deceitful business practices.

Over the last few years, it has become increasingly difficult to apply for a credit card, use a cellphone, get cable or Internet service, or shop online without agreeing to private arbitration. The same applies to getting a job, renting a car or placing a relative in a nursing home.

Among the class actions thrown out because of the clauses was one brought by Time Warner customers over charges they said mysteriously appeared on their bills and another against a travel booking website accused of conspiring to fix hotel prices. A top executive at Goldman Sachs who sued on behalf of bankers claiming sex discrimination was also blocked, as were African-American employees at Taco Bell restaurants who said they were denied promotions, forced to work the worst shifts and subjected to degrading comments.

Some state judges have called the class-action bans a “get out of jail free” card, because it is nearly impossible for one individual to take on a corporation with vast resources.

The Tremendous Difficulties Of Getting Treating Physicians To Testify And Why This Creates Huge Problems For Their Patients

Posted On: October 26, 2015

Most people are surprised when I tell them about by one of the biggest and most common problems faced by my clients: their doctor’s absolute refusal to give any testimony whatsoever.  These are physicians who know firsthand that my client really was seriously injured, and know even better than I do how severely these injuries have affected the patient’s life.

But for some reason the vast majority of treating physicians refuse to give any testimony whatsoever on behalf of their patients, on any topic.

We carefully explain and stress to these doctors that all their patient and we want is for the doctor to tell the truth, and that the testimony will only take about an hour. They still refuse to testify.

We explain that we will fully compensate them for all of the time they spend in the case, paying them whatever hourly rate they demand, (which, for doctors who do testify, is frequently over $1,000 an hour) to make up for the patients they won’t be able to see in that time. They still refuse to testify.

We explain that we’re even willing to videotape the doctor’s testimony at their office so they never actually have to set foot in the courthouse and never even have to leave their office. They still refuse to testify.

Injury Cases Are Impossible Without Medical Expert Testimony

In an injury case, medical testimony is absolutely required in order to have a trial. If my client is claiming a medical injury and I don’t have a doctor who is willing to testify as an expert witness about several important issues, then we will lose, plain and simple. The case is over before it even starts, because the judge will throw it out, saying there’s no need for a trial if I don’t have a doctor to give the legally required medical expert opinions that the law requires in an injury case.

Here are some examples of topics that frequently require expert testimony in court:

  1. whether a crash caused (or contributed to cause) a particular injury;
  2. whether the need for treatments is related to a particular incident;
  3. whether the medical bills were reasonable; and
  4. whether an injury is permanent.

American Medical Association Changes Its “Code Of Medical Ethics” To Allow Doctors To Refuse to Testify

This embarrassing trend of physicians refusing to get involved and act as advocates for their patients has become so ingrained in the medical profession that the American Medical Association’s Code of Ethics has actually been changed to reflect and allow this disregard for patients’ legal rights.

For many years, the AMA Code of Medical Ethics said:

As a citizen and as a professional with special training and experience, the physician has an ethical obligation to assist in the administration of justice. If a patient who has a legal claim requests a physician’s assistance, the physician should furnish medical evidence, with the patient’s consent, in order to secure the patient’s legal rights.

That language was in there because responsible medical professionals knew that patients absolutely had to have their physician’s expert assistance and testimony, and that there was no one else whose testimony was an adequate replacement for their treating physician’s testimony.

In a major embarrassment to the medical profession, in 2004, the AMA changed its Code of Ethics to completely delete the sentence underlined above. Instead of saying that “the physician should furnish medical evidence” the AMA inserted language saying it was optional. The new phrase says:

When physicians choose to provide expert testimony, they should . . .

By giving the physician the option to refuse to testify, the AMA completely deleted the physician’s ethical obligations to assist patients in asserting their legal rights.

There Is No Good Substitute For The Treating Physician’s Testimony

The treating physician’s refusal to testify has a tremendous damaging effect on the patient’s ability to obtain justice.  When the treating doctor refuses to testify, that means that the lawyer has no choice but to send the client to a non-treating doctor for testimony, because that’s the only option left to try to get justice at trial.

But that fact is then used by the insurance company defense attorneys to make it look like the injured person and their lawyer are shopping for a doctor who will say anything they’re told to say, even though that’s not true.

At trial, the very first questions the defense attorney will ask this non-treating doctor on the stand will be:

Isn’t it true that you never actually treated Mr. Jones?

Isn’t it true that Mr. Jones’s lawyer picked you to testify in this case, instead of his treating doctor?

Why did they pick you instead having the treating doctor testify in front of this jury?

So the only reason you saw Mr. Jones was so that you could come here to court to testify to convince this jury to give him money on this case, right?

The insurance company lawyer will make this the centerpiece of the defense at trial. They will paint the jury the false picture that Mr. Jones’ case is completely fake, the main proof being that the jury never heard any testimony from the treating doctor. The insurance company lawyer will hint, or maybe come right out and say, that if Mr. Jones’ case was legitimate, and he was actually hurt, his treating doctor certainly would’ve been here in court to tell the jury all the facts. And the insurance company lawyer will hint that the reason the treating doctor didn’t testify at trial is because the treating doctor wouldn’t say the things the lawyer wanted the jury to hear, and that’s why they got the non-treating doctor.

To jurors who have never experienced how difficult it is to get a doctor to come to court, that is a very effective strategy for the insurance company to use, because it makes a lot of gut level sense. The jurors think “Well, why wouldn’t the treating doctor come to court if the person was genuinely hurt and it was cause by this crash? The doctor probably would have said something that hurt the case, so the sleazy lawyer hired someone who would say what they wanted him to say.”

The jurors have no idea that’s not what’s going on, and that most doctors absolutely refuse to come to court under any circumstances, no matter how much they would be paid.

Example Of How This Works In Real Cases

For instance, say Mr. Smith had been to his treating physician several years ago complaining of back problems. Those complaints spanned several months in 2010. Then he never complained again until he was in a car crash in 2015. In the 2015 incident, a driver talking on a cell phone ran a red light and hit Mr. Smith’s  car.  Mr. Smith then went back to the doctor complaining of back problems, but these problems were far worse than his 2010 symptoms. The doctor decided he needed spinal injections, and gave those injections, which helped for a time before they wore off, as they usually do.

A few months after he’s finished treating, Mr. Smith hires an attorney, who files a lawsuit against the other driver. But Mr. Smith’s treating physician tells the lawyer that he refuses to come to court under any circumstances. So Mr. Smith and his lawyer have a choice:

  1.     They can completely drop the lawsuit and Mr. Smith gets no recovery at all, OR
  2.     They can send Mr. Smith to a non-treating physician for testimony.

That’s not really much of a choice. It’s really a “damned-if-you-do, damned-if-you-don’t” situation, because neither choice is good. It’s not fair for Mr. Smith to get no recovery at all just because his doctor won’t come to court. And it’s also not fair for the jury to think someone’s committing fraud just because the treating physician refuses to testify.

Issuing A Subpoena To Force The Treating Physician To Testify Won’t Work

Sometimes people think that a lawyer can simply issue a subpoena to a treating physician forcing them to come to court to testify and give opinions about the injuries, treatment, etc. But that’s not true. The lawyer for the patient can issue a subpoena to force a doctor to come to court to testify, but there is a major loophole that most people don’t know about: if an expert is subpoenaed to come to court, they can only be forced to testify about facts, and cannot be forced to give any opinions. Since almost all of the crucial evidence a treating physician can provide is opinion evidence, issuing a subpoena to a physician will not fix the problem.

Cox Health System And Mercy Hospital Both Have Policies In Effect That Say Their Doctors Are Not Even Allowed To Talk To Lawyers Unless The Doctor Is Subpoenaed

In Springfield, Missouri, where Curran Law Firm is located, the two main hospital systems are CoxHealth and Mercy.  In the last few years,  we have been advised by both of these institutions that they have put in place policies preventing lawyers from even being able to speak with the clients’ doctors to find out the facts about their client’s injuries and treatment,  and requiring the lawyer to send a subpoena.  This is not driven by a concern that the lawyer’s going to sue the doctor, because the policy applies even when the patient had a great recovery and when the lawsuit is against, for example, a drunk driver who hit the patient.

There are some courageous physicians who stand up and do the right thing, recognizing that they can and should help their patients obtain justice in court.  They testify truthfully and are well paid for it, because they’re giving up a lot to be there in court.  I cannot say enough good things about doctors like that, but unfortunately, most doctors aren’t in that group.

All Physicians Should Help Their Patients

Everyone agrees that being a physician is a good, honorable profession. Unfortunately, over the years most physicians have gotten away from helping their patients, and are refusing to do the right thing and testifying in court. Physicians should instead be willing to help their patients by testifying when requested. It goes without saying that the testimony should be truthful and that physicians have the right to get paid well for the time they spend testifying, because they’re losing time they could otherwise spend treating patients.

But it’s extremely unfair to the injured patient to be forced to have a non-treating physician come to court to testify because it makes it significantly harder for the patient to get justice, due to the skepticism juries have for testimony of non-treating physicians.

Fifteen States Ask Federal Government To Prohibit Binding Arbitration Provisions In Nursing Home Contracts

Posted On: October 16, 2015

One of the founding principles of the United States is trial by jury.  Thomas Jefferson famously said:

“I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.”

Thomas Jefferson to Thomas Paine, 1789.

I’ve written before about “arbitration provisions” and how unfair they are. (See here for one of my prior blog posts on this subject.)

Binding arbitration clauses are provisions typically buried in the fine print of business contracts, in which the customer gives up all of their rights to sue the business in court and have a jury decide the case.  Sometimes these provisions are actually put in pages the customer never even sees, such as when an unsuspecting customer clicks on the “I agree” button on websites or software.
The provisions typically provide a completely inadequate substitute, called binding arbitration. In binding arbitration, the company that’s being sued gets to pick who makes the decision. Not surprisingly, the company typically picks a decision-maker  on their side, and  frequently actually has a vested financial interest in keeping the company happy.

There have even been situations where a business which is being sued sets up a sham arbitration company to decide the disputes between customers and the business. This is like having the one of the competitors in an event also act as the referee.   When the decision-maker is  under the control or influence of the company being sued, the decisions are  sure to be unfair.

As an illustration of how bad the situation has become, the Attorneys General of 15 different states have now joined together and asked the federal government to prohibit nursing homes from including binding arbitration provisions in their patient contracts.  The Attorneys General point out that typically nursing home contracts are signed in a tumultuous period in a family’s life, where neither the patient nor the patience children have the presence of mind to negotiate the fine print in a very long, detailed contract.

I applaud the Attorneys General for their actions, and while this is a good start, it’s also insufficient.  The fact is that almost no consumer ever actually reads the fine print in their cell phone contract, credit card contract, airline ticket agreements, software agreements, or any of the other numerous important contracts they sign.  And there is a very good reason why almost no one reads those contracts: they’re completely nonnegotiable.

If I walked into a Verizon store and started to actually read the contract pulled up on that tiny little LCD  display, he might get impatient or roll his eyes. But if I tried to get him to change one of the terms of the contract, he’d actually laugh at me.  He would tell me to forget it, that he that he has absolutely no authority or ability to modify my particular agreement, and that all 20 million of Verizon’s customers all have the same contract, word-for-word.

Legally, the inability to negotiate the terms of such a contract is very important. Companies argue that binding arbitration provisions should be enforced because they were the product of arm’s-length negotiations. But they only say that because they need to do that in order to make the provisions enforceable. The reality is that these contracts are not at all negotiable,  which is  precisely why  they should not be permitted to bury unfair provisions in the fine print.

While I do sincerely applaud these 15 Attorneys General for taking this stance, it’s not enough.   Because binding arbitration provisions go directly against one of the primary and basic founding principles of the United States, the federal government should prohibit ALL binding arbitration provisions, period,  not just those in nursing home contracts.

Click here to read an article about how Wisconsin’s Attorney General became the 15th Attorney General to request federal government intervention  to prevent these unfair contract provisions.

 

ACLU Files Civil Rights Lawsuit Against Psychologists Who Designed CIA Interrogation Program

Posted On: October 15, 2015

The American Civil Liberties Union has recently filed a lawsuit on behalf of three prisoners of the United States Central Intelligence Agency who had been subjected to the government’s “enhanced interrogation” program.  The defendants in the lawsuit, James Mitchell and Bruce Jessen, are psychologists who allegedly designed and oversaw the CIA interrogation program.

According to the United States Senate Intelligence Committee’s report released earlier this year, the United States government paid the psychologists’ company $81 million to develop and oversee the “enhanced interrogation” program. Under the terms of the company’s contract with the United States government, the U.S. is required to defend the company in the lawsuit.

It is highly likely that the psychologists will ask the court to throw out the lawsuit on the grounds that they are immune from lawsuits under various legal doctrines.  It is also highly probable that the United States government, which was not included in the lawsuit, will ask the court for permission to “intervene” and become a party to the suit, and also likely that the United States will ask the government to throw out the suit because pursuing it would necessarily involve publication of government secrets.

For a more detailed explanation of this matter, see the article located here.