Government and its agents (police, district attorneys, the courts) have no legal duty to protect the individual [Public Duty Doctrine]; they cannot be held liable for failure to protect [Sovereign Immunity], because there was no legal duty to protect in the first place. See The Public Duty Doctrine.1 for indepth analysis.
Now, the medical community wants immunity from litigation in the form of Tort Reform. Obama is now considering it in health care reform. The allegation is that too many frivolous lawsuits are being filed, and doctors have to pay for expensive malpractice insurance in order to stay in business. In fact, they are claiming that the cost of this insurance is driving them out of business.
This is an interesting development in that there has been no evidence presented regarding what percentage of frivolous lawsuits there are. Since approximately 90 percent of civil lawsuits are settled out of court, and these usually contain gag clauses preventing the participants from disclosing the monetary settlement amount, how do we know that there are a significant amount of frivolous lawsuits? Neither Republicans or Democrats, not even the American Bar Association, mention the percentage!!!!! Why is that?
To my main point: in a civil society, it is a given that people will be harmed by others. And we have developed over time the ways and the means to redress our grievances or seek recourse when harmed.
American Heritage dictionary gives examples, like, "To seek recourse from the courts or police."
Well, we know, from the Public Duty Doctrine (the best-kept secret in America, from law enforcement's point of view) that if we seek recourse from police, we do it at our own risk. And now we are being asked to either limit the monetary damages against the medical community in our courts, or possibly sign a waiver, saying we will not sue if something happens, say, to our mother in a nursing home, but will agree to arbitration. This actually happened to me, as power of attorney for my mother, in a local nursing home. I did not sign the waiver.
Our ability to seek justice, to seek recourse in our courts, is being chipped away yet again. Are we gradually moving toward a no-fault civil system where we don't sue anyone for anything -- forgive and forget? Not in my lifetime.
The Indo-European root for the word recourse is kers-, meaning "to run." It either means to run to or to run back to. If this proposal manifests itself, like The Public Duty Doctrine, you will have no place to run to. Therefore, we need to stand our ground and ask questions and demand answers, for example, from the American Bar Association for more information, facts, on what basis Tort Reform should be passed.
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