Jesse Gibson Speaking Against Issue 1 in Conway September 10th!

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Please join us as Jesse Gibson addresses the Faulkner County Democratic Party this Monday, September 10th, at 6:00 PM at Old Chicago Pizza in Conway.  We will be discussing (among other things) Issue 1, the tort "reform" provision that will be on the November ballot.  We will have general information about Issue 1 and why it is bad for Arkansans, plus ways for you to get involved and to defeat Issue 1!  If you have any questions, please contact us through our website at www.jessegibsonlaw.com or by email at jgibson@jessegibsonlaw.com.  Please view the latest Protect AR Families anti-Issue 1 ad below!

SEE YOU MONDAY!!!

Jesse Gibson Speaking Against Issue 1 in Springdale on August 19th

Please join us as Jesse Gibson addresses Ozark Indivisible this Sunday, August 19th, at 12:30 PM at Rotary Park Pavilion in Springdale.  We will be discussing (among other things) Issue 1, the tort "reform" provision that will be on the November ballot.  We will general information about Issue 1 and why it is bad for Arkansans, plus ways for you to get involved and to defeat Issue 1!  If you have any questions, please contact us through our website at www.jessegibsonlaw.com or by email at jgibson@jessegibsonlaw.com.  

SEE YOU SUNDAY!!!

More Views From the Campaign Trail

It feels like I've been everywhere this campaign season, campaigning against Issue 1, the tort "reform" proposal that will be on your ballot this coming November.  But it has been a great time, and highly successful.  I've met tons of great Arkansans who do not want a government mandated price on life enshrined in our state constitution.  I have tons of events coming up in the next few weeks, and I will be putting out that information on an almost daily basis.  So watch this space!  Until that time, here are a few recent shots from the campaign trail.  VOTE NO ON ISSUE 1!

Issue 1 Debate at Political Animals - July 19th at 11:30 - Next Level Events

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Jesse Gibson will participate in an Issue 1 debate this July 19th at 11:30, sponsored by the Political Animals Club.  The debate will be held at Next Level Events in Little Rock, Arkansas, at 1400 West Markham Street in Little Rock, Arkansas.  You can get your tickets through the Political Animals Club by clicking on the link below.  See you there!  It should be a great debate, with great information why you should vote AGAINST Issue 1 this fall.  

Views From the Campaign Trail

Many of you are aware that I have been campaigning almost non-stop since January 1st against Issue 1, the proposed Constitutional Amendment that will be on your ballot this fall and commonly referred to as "tort reform."  I have urged voters all across the Natural State to vote AGAINST Issue 1.  I have to tell you, the response has been overwhelming.  I have met with literally thousands of voters, and the response is deafening.  The people do NOT want this proposal to pass.  The special interests and dark money forces are going to have to rely on misdirection and misinformation to be successful.  I have been encouraged by the civic engagement of the people all across our state.  I've been from Paragould to Texarkana.  From Bentonville to Dumas.  I'll write some lyrics some day and record my own version of Johnny Cash's "I've Been Everywhere."   Until then, here are some pics from the campaign trail.

VOTE AGAINST ISSUE 1!

Jesse Gibson Named President-Elect of Arkansas Trial Lawyers Association

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I was recently named President-Elect of the Arkansas Trial Lawyers Association (ATLA) for the 2017-2018 fiscal year.  I am scheduled to serve as the organization's President in 2018-2019.  During my time as President in 2018, SJR8, the legislatively referred question from the most recent legislative session, commonly called tort "reform" will be on the ballot.  SJR8 seeks to place an arbitrary value on human life, regardless of circumstance or the egregious actions of the wrongdoer, of $500,000.00.  It also seeks to wrestle rule-making authority from the courts and place it in the hands of the legislature, where all judicial rules will be subject to massive influxes of lobbying dollars from special interests seeking to stack the deck and rig the game in their favor to ultimately pad their bottom lines.  This effort is but the first in a series of many that will ultimately seize freedoms from the people and place them in the hands of special interests.  Your freedoms will be on your ballot in 2018.  I hope you protect them by voting NO.  

I look forward to serving as President-Elect and ultimately as President of ATLA.  I look forward to traveling the state and having conversations about the power grab under way by special interests via SJR8.  I am committed to fighting for and protecting Arkansans.  I anticipate coming to your town soon!  In the meantime, I urge you to educate yourself about SJR8 and vote NO in November, 2018!

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Damage Caps in Arkansas Would Have No Impact on Physician Supply

Myth: If Arkansas does not pass damage caps, Arkansas risks losing doctors to states that have caps on non-economic damages.

Truth: Caps on damages have no impact on physician supply.

    How do we make decisions? Do we use fear or facts?  When fear and the emotions related to fear take over our decision making process, facts don’t matter.  People who understand human decision making have studied this phenomenon over and over.  And the startling truth is that fear trumps facts.  Sadly, this truth of human behavior is used by many powerful forces in our world today to manipulate public perceptions to achieve their own goals and desires.

     And when it comes to the subject of caps on damages, fear is the number one weapon being used by the medical industry and the insurance companies who profit from it.  How do they do it?  

     First of all, these powerful forces know that the need and desire for healthcare is one of the most important issues to each and every person.  When we are sick or injured, we want the best of care, we want it now, and we do not want to go bankrupt in the process of providing that care to our loved ones.  Medical care is necessary to our very survival.  And there is nothing more fearful than to think that the unexpected moment you or a loved one needs care, it will not be there.  It can create a sense of panic to think that the hospital emergency room might be closed, or that there may not be a doctor available.  

     So, these powerful forces start telling everyone that lawyers and lawsuits are the reason for all of the problems with health care; and in particular, they say that the cost of litigation is closing hospitals and causing doctors to leave the state for states that do have caps on damages.  So, if you don’t want your doctor to leave town, you need to agree to cap damages.  It really is that simple.

     The problem is that there is no truth in these claims.  None.  These powerful forces are lying to the public and betraying our trust.  And why are they doing it?  Because they profit when they are not held accountable for their actions that hurt people.

     So, let’s look at the facts.

  1. Three new studies by esteemed academics in the field of medical malpractice research confirm for the first time that “caps” lead to more medical errors, higher health costs and no increase in patient care physicians.

    The authors examined physician supply in nine states that enacted capsand compared the data to other states, like Arkansas, that does not have caps. Their research found “no evidence that cap adoption predicts an increase in total patient care physicians, in specialties that face high med mal risk (except plastic surgeons), or in rural physicians.” Specifically:

  • “[W]e find no evidence that the adoption of damage caps increased physician supply in nine new-cap states, relative to twenty states.”
  • “Consistent with this analysis, we also find no association between med mal claim rates and physician supply in state and county fixed effects regressions over 1995-2011.”
  • “Physician supply does not seem elastic to med mal risk. Thus, the states that want to attract more physicians should look elsewhere.”

2.    “Does tort reform affect physician supply? Evidence from Texas,” University of Illinois Professor of Law and Medicine David A. Hyman et al., 2015.

    The methodology of this study, which controls for every conceivable factor, is so accurate that a national “tort reform” proponent admitted changing his mind about the issue after examining his work.

  • A “core argument” behind the “tort reform” campaign was that “Texas was hemorrhaging physicians and limiting lawsuits would stop the bleeding. Consistent with this theme, the core pro-tort-reform lobbying organization was named ‘Texas Association for Patient Access’ (‘TAPA’).
  • “[T]he assertion by tort reform proponents that Texas experiences an ‘amazing turnaround’ after suffering an ‘exodus of doctors from 2001 through 2003’ is doubly false. There was neither an exodus before reform nor a dramatic increase after reform.”
  • “[T]ort reform did not solve Texas’ physician supply issues.”
  • Rural Areas. “[T]here is no evidence that tort reform materially affected the supply of DPC physicians, primary care physicians, high-risk specialists, or physicians practicing in rural areas.”

“Physician supply appears to be primarily driven by factors other than liability risk, including population trends, location of the physician’s residency, job opportunities within the physician’s specialty, lifestyle choices, and demand for medical services, including the extent to which the population is insured.”

3.    “The Empirical Effects of Tort Reform,” Cornell University Law School Professor Theodore Eisenberg, 2012.

    “If increasing premiums drive exit decisions, then programs alleviating premiums should have effects. But Smits et al. (2009) surveyed all obstetrical care providers in Oregon in 2002 and 2006. Cost of malpractice premiums was the most frequently cited reason for stopping maternity care. An Oregon subsidy program for rural physicians pays 80 percent of the professional liability premium for an ob/gyn and 60 percent of the premium for a family or general practitioner. Receiving a malpractice subsidy was not associated with continuing maternity services by rural physicians. Subsidized physicians were as likely as nonsubsidized physicians to report plans to stop providing maternity care services. And physician concerns in Oregon should be interpreted in light of the NCSC finding, described above, that this was a period of substantial decline of Oregon medical malpractice lawsuit filings.”

    4.    Dartmouth Medical School Professor of Pediatrics and Health Policy David Goodman, M.D., M.S., 2009.

    Goodman is co-investigator of the highly respected Dartmouth Atlas, which analyzes and ranks health care spending and has been the basis of a lot of discussion about why certain areas of the county are so costly. In an email to the Center for Justice & Democracy, he said: “We haven’t explicitly analyzed this, but I agree with the impression that physician supply in general bears no relationship to state tort reform, or lack thereof.”

    5.    “Young Doctors and Wish Lists: No Weekend Calls, No Beepers,” New York Times, 2004.

    “Today’s medical residents, half of them women, are choosing specialties with what experts call a ‘controllable lifestyle.’… What young doctors say they want is that ‘when they finish their shift, they don’t carry a beeper; they’re done,’ said Dr. Gregory W. Rutecki, chairman of medical education at Evanston Northwestern Healthcare, a community hospital affiliated with the Feinberg School of Medicine at Northwestern University… “Lifestyle considerations accounted for 55 percent of a doctor’s choice of specialty in 2002.”

    “…income, which accounted for only 9 percent of the weight prospective residents gave in selecting a specialty.”

Remember the great movie, “A Few Good Men” when the prosecuting attorney ended his closing argument with resounding confidence….  “These are the facts; and they are not in dispute”  The powerful forces that are behind the current tort reform movement in Arkansas hope you will disregard these facts, or choose to ignore them.  These proponents include people who have engaged in bribing a judge to reduce a verdict entered against him by a jury of the community.  These powerful forces hope to rely upon fear andignorance.  But, as we pull back the curtain, a new set of emotions should take over as we see that the people of Arkansas are being lied to; are being betrayed; and ultimately, if the Amendment passes, thrown under the bus when they or a loved one are injured and the courthouses of this State are no longer available to them for justice.  Stand with us.

    

Medical Errors are the Third Leading Cause of Death in the U.S. Trailing Only Cancer and Heart Disease

If you were put on the spot, and asked what the top three leading causes of death were in the U.S., what would you say?  Cancer, right?  Check.  Every single person on this planet has been touched or affected by cancer.  I can name multiple family members and even close friends who have succumbed to this horrible, awful disease.  Heart disease?  Check.  Much like cancer, heart disease has affected untold people.  Our eating habits, lack of exercise, and culture undoubtedly play a huge role, but regardless of the cause, we all are way too familiar with heart disease.

But number three?  Hmm.  Toxin exposure?  Drunk drivers?  Nope and nope.  Medical errors.  A recent study performed at Johns Hopkins found that there are upwards of 251,454 deaths in the United States EACH YEAR as a result of medical errors.  That is a group of people greater than the population of Little Rock killed by medical errors.  EACH YEAR.  And the researchers feel that this number is on the very low end of statistical data, given that a large number of errors go unreported.  The U.S. Department of Health and Human Services found in 2008 there were 195,000 deaths by medical error among Medicare patients alone.  These include the elderly and disabled, those that we value and want to protect the most.  The Johns Hopkins researches urge modification and reform in the way deaths are recorded and reported by requiring all death certificates to have a space to mark that the death was a result of a medical error.  It is the researchers' belief that such a change would lead to a staggering number of medical error deaths that they hope would eventually lead to widespread reform in medical care.  

An article from CNN is linked below.  Please read it and all information to educate yourself about the dangers of medical errors.  You and your loved ones could be affected or killed.  As you read, ask yourself "How many deaths due to medical errors is an acceptable amount?"  And then ask "How many deaths of MY family members is an acceptable amount?" These situations are more widespread than many would like to admit, even to themselves.  

 

For Merit Selection in Arkansas Judicial Races

With the "non-partisan" judicial elections now in our rearview mirror, I believe it's safe to say that it's time for change in how we go about electing judges in Arkansas.  The two recent Supreme Court races saw over $1.6 MILLION in "dark money" flooding our airwaves, telling the citizens that they must elect Judge Dan Kemp and Judge Shawn Womack.  (This number will surely rise as late arriving financial information is crunched)  Congratulations to both of these men, and I hope they stand by their campaign messages, and emember that they are there for the citizens who elected them and not for shady corporate entities who slaughtered their opponents campaigns and reputations to get them there.  Please understand that reasonable people are skeptical of this.  When that much money is spent trashing a candidate for our state's highest court, what other message could be received other than to behave and rule as we want . . . or else.

But it's time to realize that with Citizens United, the toothpaste is out of the tube.  The cows are out of the barn.  Insert whatever cliche you want.  Dark money will flow in from out of state (but lets not kid ourselves, a lot of it actually begins IN state, gets "laundered" by going to dark money outfits out of state, and then comes back) like sludge in every future judicial election.  The attacks were so successful, that the groups behind them should feel nothing but emboldened about their ability to buy influence and judicial races here in Arkansas.

It's time to move to a process, with strict oversight and a fair methodology, to appoint the best and brightest to the bench in Arkansas.  Even Governor Asa Hutchinson agrees.  He called for a move to merit judicial selection in his own campaign post-mortem.  Now, the devil is certainly in the details.  If we truly want to eliminate millions of fraudulent campaign ads and the sale of our courts to big business, true independence, bi-partisan oversight, and input from both the plaintiff's and defense bar is key.  But it's time to stop kidding ourselves that we can have any kind of fair election when the independent judicial election watchdog group, Justice at Stake, found the most recent judicial elections in Arkansas to contain the most vile ads and infested with record levels of outside, "dark" money.  It's time to do something different.  If corporate interests are dead set at influencing the game with their millions, with the intent of limiting your constitutionally protected 7th Amendment rights, it's time to change the game.  

Stay tuned as I put forth my proposed merit selection plan in a few days.

Judicial Bribe Case May Reach Beyond the Usual Suspects

Readers of my blog know that I have intently followed the case originating in Faulkner County Circuit Court involving the sordid tale of defrocked Judge Mike Maggio, Michael Morton, and Gilbert Baker.  The story, admitted to by Maggio in his plea agreement, is that he illegally reduced a $5.2 million nursing home verdict obtained by Tom Buchanan on behalf of the Estate of Martha Bull to $1 million in return for exorbitant cash contributions to his then burgeoning campaign for the Court of Appeals.  Once this corrupt scheme came to light, Maggio's campaign was kaput, he lost his law license, and he is looking at deserved jail time. 

Though unnamed, there were several co-conspirators mentioned in Maggio's plea agreement.  These were largely believed to be Michael Morton, the Fort Smith based nursing home mogul, and Gilbert Baker, the former politico and lobbyist with a shady history where money and politics intersect.  It has been nearly 10 months since Maggio's guilty plea, and since then, those in the legal community have been waiting for the other shoe to drop.  Since the investigation is being led by the FBI, it has long been believed that Maggio was cooperating with authorities and providing information and perhaps testimony against other parties involved in this truly shameful debacle.

Additional fuel was thrown onto that fire this week when Maggio's sentencing, which had already been pushed back until November 20, 2015, was again pushed back until February 26, 2016.  Is this perhaps evidence that the investigation may be spreading out to other lawmakers or additional co-conspirators?  What about other judges?  What about confidants of both Morton and/or Baker?  Best to wait and see, but it may very well be that the scope of the investigation has spread and will continue its slow sprawl, perhaps very high in state government.  I would venture to say many pols here in Arkansas are sweating and keeping a very, very low profile right now.  

Stay tuned.   

Arkansas Workers, Your Legislators Are Trying to Give Your Benefits Away

Arkansas' 90th General Assembly is committed to injuring working Arkansans in every possible way.  I recently blogged about HB 1907, which would abolish the "made whole" doctrine and force injured Arkansans to become indentured servants to their insurance company for the sole reason that they were an innocent victim of someone else's negligence.  I recently blogged about HB 1907 and its awful results for Arkansans. 

But the damage to Arkansans does not stop there.  Representatives Matthew Shepherd and Jeremy Gillam, as well as Senators John Cooper, Jonathan Dismang, and David Sanders have filed HB 1768.  This is another horrible bill that places the interests of insurance companies that write workers comp insurance above those of injured Arkansans.  

Now, what does this bill propose to do?  We are all familiar with workers compensation laws, right?  If you are injured on the job, your employer is required by law to provide workers compensation benefits via workers comp insurance.  In return for the requirement of providing this coverage to employees, employees give up all rights to sue their employers for negligence.  Workers compensation is the employees' sole remedy.  Workers compensation is not perfect, and it does not provide full compensation for injuries suffered.  However, it is also no fault and provides medical insurance and some small measure of wage loss (often only a percentage and only for a short amount of time) for individuals who suffer workplace injuries.  

However, there are some situations where a worker's injury may be the result of a third party's negligence instead of a workplace hazard.  For example, lets say a worker is driving a company vehicle doing company work and is hit by a drunk driver.  Those actions were still within the "course and scope of employment," and workers' compensation will pay for the medical care.  However, the worker may still have a negligence case against the drunk driver.  Under existing law, the "made whole" doctrine applies.  The made whole doctrine provides that unless and until the injured party is made whole from his injuries (pain and suffering, permanence, lost wages, etc) then and only then does the workers comp carrier have a right of "subrogation."  Subrogation is when an insurance company, despite being paid premiums on the front end, double dips into any settlement or verdict to get repaid for the benefits it paid.  It gets paid on the front end in premiums and on the back end by getting into its own insured's pocket.  

This was the law in Arkansas for years and years.  But this bill seeks to abolish made whole in the workers comp context and provide that the first person who gets paid out of any third party verdict or settlement is not the worker who was injured through no fault of his own, but instead the workers comp carrier.  Oftentimes, an individual may be permanently injured or disabled, but under this bill, that is not important.  HB 1768 wants to make sure that the comp carrier gets a windfall.  

Why is this bad?  Several reasons:

1.  Injured or disabled workers are made indentured servants to their insurance companies under this bill.  If they pursue a case against a third party tortfeasor, they are doing so only so the insurance company can come take it.  This bill would deprive these injured workers from any form of complete recovery. 

2.  This bill will likely force individuals onto government programs that the taxpayers will pay for.  If someone is disabled and no longer able to work due to a workplace injury, a third party settlement or verdict will assist them in obtaining suitable medical care they need.  If HB 1768 passes, disabled workers will often have nowhere to turn than Medicare or Medicaid.  These programs are funded by us, the taxpayers.  This bill would give money away to multi-billion dollar insurance companies and let the taxpayers pay for the medical care these workers need.  This is the definition of big government.  

3.  This bill puts profits over people.  It values the insurance company's bottom line over the workers that are out there sweating and toiling to put food on the table.  This bill sends a clear message that those workers are less valuable and less important than a nameless, faceless, heartless insurance company.  

4.  Insurance companies are allowed to double dip.  They make a net PROFIT when their insureds get hurt.  How?  They get all the premiums up front and then they force the workers to go out and get their money back on the back end.  Do they refund the premiums if they get subrogation?  Of course not!

This is another horrible bill that is currently before the Arkansas Public Health Committee.  This is bad policy.  This is a bad bill.  It hurts working people.  Please contact your legislators and tell them to vote NO on HB 1768.

Your Legislators Value Your Insurance Carrier's Bottom Line Over You - HB 1907

Representative Micah Neal (R) - Springdale recently filed HB 1907.  This bill seeks to obliterate what is known in Arkansas as the "made whole" doctrine.  Let me explain why this is a truly bad bill, and seeks to enslave Arkansans to work for multi-billion dollar insurance companies for FREE.

Oftentimes, when a person is injured by the negligence of a third party and no fault of their own, the injured party's insurance company pays benefits for the health care the injured party receives.  Makes sense, right?  You paid your premiums for health insurance in case something bad happens, and something bad happened.  That's what it's there for, right?  But we all know that insurance companies don't really like paying claims, do they?  So they often seek "subrogation," where they step into the shoes of their insured and seek to have those benefits reimbursed by the negligent third party's insurance carrier. 

The made whole doctrine provides that unless and until the injured party is "made whole," the insurance has no right of subrogation.  Unless the person who is injured has been fully paid for all of the injuries, lost wages, pain and suffering, etc, then and only then does the health insurance carrier have any right to be reimbursed or to "subrogate."  Makes sense again, right?  Been the law in Arkansas for years and years and years . . . until the 90th Arkansas General Assembly got together.

This bill would do away with the made whole doctrine and provide that the first entity that had to be paid out of any settlement or jury verdict is . . .who?  The injured party?  Nope.  Your insurance carrier.  Oh, but the health insurance carrier has to repay all the premiums they collected from you, right?  That would only be fair, right?  Nope.  They get to collect your premium payments and stick them in their pocket AND take money out of any settlement or verdict to repay them for the benefits they paid.  They get paid on both sides of the equation.  It's a classic double dip.

Why is this bad?  Several reasons.

1.  It requires ordinary folks who purchase insurance with their hard earned money to act as their insurance company's collection agency.  They get your premiums on the front end, and then you are pressed into service to get that same insurance company's money on the back end.  Didn't you pay them in the first place to cover you if something happens?  Guess what?  You now work for them and your insurance company gets a windfall.

2.  It's free to the insurance companies.  You and your lawyer pay through the nose.  The bill provides that no cost of collection or attorney's fees are payable to either the insured or their attorney.  Again, the insurance carrier hits the jackpot and you foot the bill.  

3.  Cases can never settle if this passes.  If you know you have to repay your insurance company every single dime before you ever see a dollar of any settlement or verdict, no one will ever have the impetus to settle a case.  The result will be even MORE litigation, MORE expense, and MORE uncertainty.  It will hardly ever make sense to settle a case, because it will almost universally go to your insurance carrier.  There will also be MORE dollars pumped into the insurance company's bottom lines.

4.   This applies to all kinds of insurance.  Not just health insurance.  Homeowners, MedPay or PIP, car insurance.  Everything.  All coverage.  You will now have a second job as a collection agency for every single insurance company you have coverage with if, God forbid, they actually have to pay something when you make a claim.

This is slot machine legislation.  Insurance companies take your premiums hand over fist every month and when they have to pay back, they enslave you and your lawyer to go get it back for them.  This is bad policy.  This is bad law.  Contact your legislator and urge them to vote against HB 1907.