2019 Legislative Session Concludes - Several Problematic Bills Defeated - More Fights Ahead

The final vote on HB 1955, the Workers Comp Made Whole Bill.

The final vote on HB 1955, the Workers Comp Made Whole Bill.

As one of my last responsibilities serving Arkansans as the President of the Arkansas Trial Lawyer’s Association was working at the state capitol during the 2019 legislative session. I am happy to report a successful session defending the rights of injured Arkansans to seek justice against negligent actors and wrongdoers. Each legislative session, our legislature may refer out three proposed constitutional amendments to the voters. You may remember this is how Issue 1, the previous attempt at sweeping tort reform, was referred to the voters in 2017 before being removed from the ballot despite being widely unpopular in the polls and facing defeat at the ballot box. The same group of legislators tried again with another sweeping tort reform amendment. That provision (also called SJR8, the same bill number as in 2017) failed to gain any traction and never reached a vote in any committee.

However, this was not the only attempt at limiting the rights of injured Arkansans to seek justice. Here are a few bills that were defeated in the session:

HB 1955. The proposed workers compensation “made whole” bill. This bill, known colloquially as the “injured worker indentured servant act,” would have thrown out the doctrine of made whole in workers compensation cases. It would have placed the corporation BEFORE the injured worker if a settlement or verdict was returned in the injured worker’s favor. This was defeated twice in committee before it was rushed out in a quick and hurried vote when Rep. John Payton (R) declared “he was hungry.” That vote was short lived, because due to yeoman’s work by our lobby team, the bill was trounced on the House floor with only 35 yeas. It needed 67 to pass. You can read more about HB 1955 below.

In addition to HB 1955, a “made whole” bill that would have applied to a wider swath of cases, including auto med pay, was filed in the Senate as SB 566. However, after legislators on Senate Insurance and Commerce learned how much the bill would harm Arkansans, it never gained traction and was never brought to a vote.

SB 543, which would have changed the Uniform Contribution Among Tortfeasors Act, passed in the Senate, but went nowhere in the House and died in House Judiciary upon adjournment sine die. Likewise, SB 544, which would have done away with the collateral source rule, never gained traction in either chamber and died upon adjournment.

While it was a successful session for Arkansas consumers, vigilance is key. There will be further attempts at limiting rights in the future that must be addressed and defeated. Thanks to all friends and clients of the firm who reached out to legislators to communicate their opposition to these harmful bills. Your contributions are key and greatly appreciated.

2019 Legislative Session Kicks Off January 14, 2019

The 2019 legislative session kicks off next Monday, January 14th. Watch this page for legislative updates and information. Pre-filing began some time ago, and after some niceties and introductions, the legislature should be in full gear in short order.

If you have questions or comments, please post them here, and I will try to work my way through them as quickly as possible!

Arkansas Capitol.jpg

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

Political Animals.jpg

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.  

Jesse Gibson Named President-Elect of Arkansas Trial Lawyers Association

Jesse Headshot.jpg

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!




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.


Please, Please, Please Do Not Disclaim Medpay, Underinsured, and Uninsured Coverage

Often, when I meet with clients, it is days or weeks after the worst days (or one of them) of their life.  Either they or a loved one has been in a horrible accident, and they need lots of medical care.  Or they are injured due to someone else's negligence, but quickly learn that the person that hit them only has the statutory minimum insurance coverage of $25,000 per person, and they are faced with bills 5 times that amount.  Or even worse yet, they are hit by someone with no insurance coverage at all.  

Sometimes when faced with these situations, and I ask "What kind of insurance coverage do you have?" I am met with blank stares because they don't know.  This is entirely common.  Most folks buy insurance because they are legally required to, and never give it a second thought.  This is an easily solvable problem.  The real tragedy occurs when I locate their declarations page and discover they have disclaimed med pay (PIP) coverage, Underinsured Motorist (UIM) coverage, or Uninsured Motorist (UM) coverage.  This decision saved them a few bucks every six months when they purchased their policy, which sounded like a great deal.  Little did they know that they might need that coverage in case the worst happened.  When someone injures you, and you need additional insurance coverage to help pay for medical care or lost wages, those few bucks seem wholly insignificant.

I try to educate my clients one at a time of the value of purchasing the most med pay, UIM, and UM coverage they can afford.  As you might guess, I am insured out the wazoo, and my med pay, UIM, and UM coverage is about $40 every 6 months.  So don't skimp.  Don't try to save what is the equivalent of a pizza dinner for your family.  Spend the money and get as much med pay, UIM, and UM coverage as you can afford.  You only need it when you need it, and old Benjamin Franklin is right in this regard.  An ounce of prevention is worth (MUCH MORE) than a pound of cure.  #arlx


Frequently Asked Client Questions - Part 1

Closing in on 20 years of practicing law, with the past 15 dedicated almost solely to a personal injury practice, I have been asked some pretty strange things.  Everything from "Can I sue Waffle House for having dirt in their coffee?" to "My neighbor put a tracer in my brain so aliens can track me.  Can I sue him to get him to stop?"  But although there are some outliers, the vast majority of folks are good, hard working people who have been wronged, need help, and only desire justice and fairness.  Here are a few things that these folks tend to ask:

1.  What is my case worth?

We could talk about this issue for hours or days.  Every case is different.  And it matters what county the case is filed in, who the defendant wrongdoer is, the extent of injuries, and a vast array of factors.  But the garden variety personal injury case will be driven by medical bills and evidence, lost wages, missed work, and non-economic factors such as pain and suffering or scarring.  Further, while not every case justifies it, if punitive damages are on the table, that could greatly affect case value.  The key is to get all information to a skilled and experienced personal injury attorney.  At the end of the day, the true value is what that attorney can convince a jury of 12 people of.  To do that, you need an experienced advocate.

2.  Is my case recovery taxable?

Great question. And the answer is . . . maybe.  While speaking generally, personal injury recoveries are not taxable, certain types of recovery are indeed taxable.  It depends on the type of case and the type of recovery obtained.  It will depend on whether the recovery is for pain and suffering, medical bills, lost income, or another form of damages.  Again, you need a skilled and experienced trial attorney to walk you through he ins and outs of this issue.  You don't want to "win," in court and then ultimately "lose" to the IRS.

At Gibson Law Firm, we strive to give our clients top notch representation and skilled advocacy.  We will always be there to fight for our clients and to answer any questions, no matter how frequently they are asked.