2012-01-20 / Columnists

Sullivan’s Court

Commentary By Keith Sullivan

Keith Sullivan is a partner with Sullivan & Galleshaw, LLP and an adjunct law professor at Pace University School of Law and Brooklyn Law School and a lecturer for the NYS bar exam.

Q. I was hoping you would resolve a debate my wife and I have been having – and I’m hoping I’m right! She claims that the law is applied differently to different professions when a consumer or individual wants to file a lawsuit against them. She claimed her friend couldn’t file a lawsuit because the defendant was a City hospital and they had more legal protections than an ordinary ‘Joe’ from the street. I told her the law must be applied equally to all people or else it would be unconstitutional. Can you tell us who is right here? Thanks in advance. – Mike L.

A. Dear Mike, as has often been said, women are the smarter species – your wife is correct! Unfortunately, you can blame this on the political and social movement known as “Tort Reform.” It is also known as ‘taking people’s rights away so insurance companies can profit.’ You see Mike, insurance companies charge money to insure just about every scenario you can possibly think of. Their business model is to manage their risks for a very large profitable gain. Said another way, they want to collect more money than they pay out. Nothing wrong with that, indeed some might say that is the true entrepreneurial American spirit. However, to help manage their risk they advocate denying our access to justice in various markets and sectors. In essence, they want to close the courthouse doors to everyday citizens like you and me.

Make no mistake about it; the insurance industry is one of the wealthiest and most profitable businesses in America. Think about how many television and radio commercials you hear and roadway billboards you see for the various home and auto insurance companies; the number of college and professional sporting events that are sponsored by insurance companies, the countless sports arenas and stadiums named after insurance companies, the endless number of ‘calls to the bullpen’ or re-plays or sports newscasts that are sponsored by insurance companies … they are everywhere. That alone gives you a pretty good indication of just how much money they are making. They also spend the most amount of money on lobbying politicians for ‘reform.’ This reform is to help manage their risk and increase profits. It is achieved by making it harder for you to file a lawsuit in certain instances. Additionally, certain professional groups and organizations have advocated for special treatment from the law as well. The large ones include physician groups, medical device manufacturers and the auto industry. Generally speaking Mike, you can be sued for your negligence that causes an injury to someone else regardless of how serious or minor the injury might be and that person would have three years to file the lawsuit. Let me tell you that I probably discourage more lawsuits from being filed than I actually file. The simple reason is, if the person is not really hurt (as in they did not fracture a bone, did not require surgery or only have minor sprains), or if they were partly at fault for causing the accident, then it will be a waste of their time and mine and it may be a frivolous lawsuit. No one wants to see such lawsuits being filed. Let me quickly point out just a few common disparities under the law that your wife was likely referring to. Let’s assume you wanted to sue a private citizen for negligence, you would generally have three years to do so. Now let’s assume the lawsuit was against the City of New York or any of its agencies or departments, including a hospital or doctor they employ, as was the scenario your wife mentioned. Within 90 days of the accident, you must file a document called a Notice of Claim. This is a pre-requisite to filing the lawsuit and is very similar to the summons and complaint that initiates a lawsuit. Then the City is entitled to conduct a “50-H” examination, which is testimony of you under oath just like a deposition. The lawsuit itself must be filed one year and 90 days after the accident and then the City is given another opportunity to question you under oath in a deposition. In addition to these added protections, the City is immune from any and all liability under many circumstances. For example, they are not responsible maintaining certain sidewalks even though they own them. For the ones they own and are responsible for, that responsibility does not arise unless they have prior written notice of the exact defect that caused your injury. If the hypothetical lawsuit was to be filed against a private hospital or doctor for operating on the wrong side of the brain (a real case I handled!), that lawsuit must be filed within two and one-half years, instead of the normal three years. Additionally, before you can file the lawsuit you must have another doctor review the matter and file a certification that an independent physician determined that the case has merit. If the hypothetical lawsuit stemmed from a car accident, then you would be barred from filing a lawsuit unless the injury you suffered fits into one of nine very specific categories. The list requires too much explanation to detail it all here, but some of the categories are: death, dismemberment, significant facial disfigurement, loss of a fetus, fracture of a bone, inability to work for three months or loss of use of an organ. There are a host of other defenses and benefits that the auto insurance company receives throughout the course of a lawsuit. All of those benefits are for the advantage of the insurance company to the detriment of the consumer and “Joe” public … as in you and me. So, I think a few things are crystal clear now Mike. First, if you think you have been injured it is always best to speak with an attorney immediately to determine what your rights are because they will vary greatly based on how and where you were injured. Second, the short answer is yes, the law does treat certain interest groups better than the average citizen and third ... your wife is right! You didn’t tell me if this was a wager, but I think you owe her a nice romantic dinner out.

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