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Trial attorneys say civil system works

Tort reform that includes capping malpractice awards won't solve anything, simply because it's not a problem, says the president of the association that represents trial lawyers.

Tort reform that includes capping malpractice awards won't solve anything, simply because it's not a problem, says the president of the association that represents trial lawyers.

"In Minnesota, we have the lowest premiums in the whole country," says Michael Bryant, president of the Minnesota Association for Justice, the state group that represents trail lawyers.

"We have a low number of claims, to me, the most important part is that we have great medical care," Bryant said Monday during an interview while in Bemidji. "This is a good state for medical care."

A number of gubernatorial candidates have called for placing limits on malpractice awards, and other tort reforms that would limit what they say are cases causing backlogs and costing money. But Bryant disputes that, saying civil litigation is down.

There were only 124 medical malpractice cases last year, and there has been 40 percent drop in such cases over 10 years, Bryant said. Minnesota also has laws to prevent frivolous malpractice suits that require an expert affidavit to be filed initially.

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Georgia last year had 68 medical malpractice suits filed because surgeons left something in their patients, Bryant said. "We're having less of that, primarily because of reporting, because we've got good doctors and the system works pretty well."

Trying malpractice suits are expensive and risky, said Gary Hazelton, a Bemidji attorney and MNAJ member. "It really has to be something egregious before somebody will look at the case."

Likewise, the size of malpractice awards is not a problem, Bryant said, calling Minnesota jury members conservative.

"Every once in a while you will see a big verdict, but even with a big verdict, there's usually some basis in them,": he said. "For the most part, Minnesota jurors are known as being somewhat conservative. ... The reality is they are tight, they don't give money away."

Bryant added that "our jury verdicts aren't known as anything excessive."

At least one gubernatorial candidate in Bemidji last week, Republican Rep. Marty Seifert of Marshall, said people should pay more user fees rather than hike income taxes. He suggested defendants pay something toward their public defender.

"Seifert comes up with sound-good solutions that don't raise much money," Bryant said. "There's a constitutional issue there that comes into play ... with the right for people to be defended."

Judges screen defenders and decide if they can afford their own attorney, Bryant said.

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MNAJ's chief legislative issue this session is to pass the Family and Child Injury Act, which would allow parents and children to seek damages when a wrongdoer harms a family member. Currently, on the affected spouse may file a lawsuit.

Twenty other states do allow for the larger filing, he said. "We're only talking about the immediate family members," he said. "It goes directly to the impacted family."

For example, in a well-publicized case, Abigail Taylor was severely injured when she inadvertently sat on an open wading pool drain, with the suction causing her intestinal tract to be partially removed.

Her parents had numerous trips to specialists for Abigail, and 16 follow-up procedures. After her death, the bills mounted but the family had no recourse for lawsuit.

"That doesn't seem right to us, for catastrophic injuries," Bryant said.

Funding courts is also a problem, he said, although this session isn't a budget year. Chronic underfunding has resulted in a 9 percent staff shortage, delayed cases and extensive service reductions, Bryant said.

"We aren't the issue as far as an increase in civil cases," he said of medical malpractice or personal injury lawsuits. "Where you're seeing it is in bankruptcies, forfeiture actions and implied consent cases. That's what's increasing the litigation, as far as civil case."

Yet trail lawyers of the injured and the accused have seen a doubling of filing fees, new motion fees and $100 was added to attorney fees for the public defender program.

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"So while we're not a part of the number of cases going on, we're funding this as best we can and in as many different ways as we can by what we do," said Bryant, who practices in Waite Park.

Suggestions to improve the system include more use of electronic filing. "We have hearings now where the judges don't even have the paperwork, not because they don't want it, but because six people are doing the work of eight people and in four days instead of five, so the paperwork doesn't get to them (judges)."

That's especially true in rural Minnesota where judges move around, said Hazelton. District Judge Paul Rasmussen, for example, might hear a case in Bagley and then travel to hear a case in Park Rapids. "The file doesn't catch up to him, so it is nice if you can do it electronically," he said.

Bryant said MNAJ is also seeking a return to having drivers certify at driver's license renewal time that they have insurance. That requirement was removed from driver's license renewals several years ago.

The problem, he said, is that now officers are issuing tickets for no proof of insurance and those cases are plugging up the courts, as people must produce proof of insurance in court.

"We have thousands and thousands of court appearances ... of people who get charged, not with no insurance, but no proof of insurance," he said. "The person gets stopped on the road, has no insurance, the cop writes a ticket and then you have an appearance where all the person does is show up and say, 'Here, I have a ticket.'"

Centralizing information about insurance is a way to prevent those appearances, he said.

"If they change the system and it affects lawyers, we'll figure out something," Bryant said. "People keep getting hurt and we provide certain things that other people can't because we go to law school."

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