05/03/2010 05:12 am ET Updated May 25, 2011

Please No Caps on Lawyer Malpractice

One of the Republican objections to the proposed health care legislation is the failure to include tort reform as it relates to medical malpractice. One of the many proposals is to place a cap on certain damage awards, thus giving to injured victims less than they might obtain under the current system.* The Supreme Court is considering a similar issue on the criminal side: whether there should be a cap of sorts on a lawyer's malpractice even when to impose it might result in the victim's execution.

What would probably appear to be a "no-brainer" for the average citizen is the question of whether a criminal defendant should be given an extension of time because of his lawyer's negligent failure to file a required pleading on time. In the case of Albert Holland the malpractice is exacerbated by the fact that he did everything possible to make certain that his lawyer filed the required petition for habeas corpus relief necessary for a review of his conviction by a federal court.

Incredibly the 11th Circuit denied his request on the grounds that even the lawyer's gross negligence and misconduct was not sufficient to extend the time for filing---the "equitable tolling" the law allows in some instances in which deadlines are not met. Closure and finality are worthy goals in our judicial system and the enforcement of rules an important element in the orderly administration of justice, but they do not and should not override or supersede fundamental fairness and common sense particularly where a person's life or liberty is at stake.

*I have written on this subject in an earlier post: Is Malpractice Reform the Missing Link to Health Care Reform?