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The Problem with “Early Offer” Legislation

Tort reform efforts take many forms. However, our Illinois brain lawyers know that many people associate “damage cap” laws as synonymous with tort reform. That is because more focus has been given to those particular caps than to any other tort reform effort. However, it is important for local residents to know that there are many other issues that might affect the ability of private citizens to access the civil justice system. Most of those efforts have one general goal: making it harder for community members to actually hold others fully accountable for the consequences of their negligent, reckless, and intentional misconduct.

For example, one popular new tort reform measure is often referred to as “Early Offer” legislation. When tort reform supporters discuss this concept they usually talk generally about trying to make the resolution of medical malpractice claims simpler. What the proponents of the bill generally do not want people to do is look at the actual details of the proposal, because, as usual, “the devil is in the details.”

Our Chicago brain injury lawyers recently read the testimony of Joanne Doroshow at a state committee hearing considering the proposal. Doroshow is the executive director of the Center for Justice and Democracy. She explained that the proposal would take away victim’s rights in a manner that “is so dismissive of constitutional rights and potentially calamitous for injured patients.”

She continued that the early offer legislation “[F]louts the basic notions of fairness. It would tilt the legal playing field so dramatically in favor of insurers as to essentially eviscerate patients’ right to adequate compensation.”

So what is the problem with the legislation?

The main issue is that the law essentially tries to get patients to “sign into” the early offer system without any real idea about what their long-term injuries might be, usually without having any real opportunity to discuss the ramifications of their conduct with their legal professionals.

Once in this system, the patients will be faced with a string of conflicts, at their own disadvantage. The medical-defendant is able to select doctors to evaluate damages with serious complications for families trying to get future medical expenses covered. In addition, by entering the system the patients give up all rights to non-economic damages.

Every way you look at it, the law attempts to coerce unknowing patients into signing away their own rights.

Brain injury lawyers of all stripe-all lawyers, in fact-understand that a bedrock principle of the legal system is a commitment to fairness. Part of that commitment involves not creating systems that will knowingly coerce certain individuals into making decisions against their interests. It is not enough to say that technically those involved can opt out of the system, particularly when the system sets up a system with trusted individuals applying pressure on those individuals to act against their own interests. The law can be complicated. These types of laws try to take advantage of that complication by getting patients to unknowingly act in ways that are often not in their best interests.

All lawyers, on both sides, should know that these tactics are inherently unethical. They should never be enshrined in law.

See Our Related Blog Posts:

Public Waking Up to Cost, Severity, and Frequency of Traumatic Brain Injuries

Traumatic Brain Injury Initiative Announced by First Lady Obama