Defending Rick Santorum…

Photo credit: Catholic Moxie

I do not come to praise Rick Santorum, nor condemn him. But I’m here to defend him.

What? You don’t believe me?

This is the brief backstory on recent criticism of Santorum: His wife Karen — a non-practicing attorney, nurse and mother of three at the time —  brought a medical malpractice case  concerning a violent chiropractic manipulation in 1996. (Santorum Malpractice Complaint). It resulted in a herniated disk in her lower back that required surgery. She sued for $500,000, and a  jury awarded her $350,000 in 2000. The judge subsequently reduced it to $175,000.

Given Rick Santorum’s prior advocacy of a $250,000 cap on malpractice cases, folks have screamed hypocrisy ever since.

With Santorum almost winning the Iowa caucus, and set, perhaps, to do well in South Carolina shortly, more attention is being paid to him as a potential Republican nominee, and this tort “reform” issue has reared its head again. (See, ABC News from 1/6/12,Rick Santorum in 2005: Double Talk on Tort Reform?)

On Friday, my friend Jordan Rushie sent this tweet my way:

 

It’s time for me to defend Rick Santorum against charges of hypocrisy for his wife’s suit. Because I don’t think he earned it.

First  up, spouses are entitled to have differing opinions.

Exhibit A –> High profile Democratic consultant James Carville is married to high profile Republican consultant Mary Matlin.

Exhibit B –> George Bush was anti abortion and gay rights. But Laura Bush supports both.

Now look at your own family and ask yourself if everyone agrees with everyone else. Do I really need to say more? Rick was not a party to Karen’s suit, so you can’t honestly call him a hypocrite  for it (unlike, for example, Judge Robert Bork and his slip and fall suit). And it’s foolish to suggest that the chiropractor gets immunity from negligent conduct simply because the patient’s spouse has a different political belief on this issue.

Second up: Rick testified at his wife’s trial, doesn’t that make him a hypocrite? Answer, no. He was a fact witness. Fact witnesses offer up their observations. He testified, according to the post-trial memo, about how the pain restricted her ability to care for their children, restricted her activities, and was a factor in significant and demoralizing weight gain. He could, technically, have been subpoened to testify if he refused to voluntarily come to court. I doubt that happened, of course, as he probably doesn’t want to sleep on the couch.  While it would be easy to simply quip “happy wife is happy life,” the legal reality is that he had no choice but to testify if that’s what one of the parties to the suit wanted. If Santorum witnessed your auto accident, you could force him to testify no matter how much you like/dislike him.

Third up: He probably gets to enjoy her money, doesn’t that make him a hypocrite? The answer again, is no. This issue of  money comes up often in the personal injury field, of course, as people want to know what will happen if a claimant prevails. But the money isn’t a prize, nor a lottery, nor a windfall of any kind. (And it isn’t “winnings” as Shpoonkle thinks.) It’s compensation. Someone suffered a loss and the money is designed to make that person whole.

Does it matter if Karen shares the money with Rick? Of course not.  I would never tell people what they should do with money they’ve received as compensation in a lawsuit. If Karen wanted to donate it to a charity, she could. If she wanted to spend it on her kids or her husband, she could. If she wanted to squander it on fast cars and loose woman, more power to her and let’s sell a few tickets. But it isn’t for us to say what she should do with her money that was awarded simply to make her whole.

Are there times when a jury gives an outlier verdict that’s way too high or way too low? Sure. And that’s why, in Pennsylvania, the judge was empowered to order a new trial if Karen Santorum didn’t accept a lower award. That’s the way the system is supposed to work. There’s no need for a one-size fits all cap when there is already a three-tiered system to protect litigants: 1) jury; 2) trial judge; and 3) appellate court. And that is the way New York also works (See: How New York Caps Personal Injury Damages). Ironically, the very outcome of the case, with the judge knocking down the award, is stark evidence that Rick Santorum’s own ideas of artificial one-size-fits-all caps are utterly unnecessary, and would only further victimize those who’ve been most badly injured in the first place. (See: Does Tort “Reform” Kill Patients?)

In sum, there is no colorable argument on why the courthouse door should have been slammed shut on Karen Santorum. And if she can’t be faulted for bringing the suit, then her husband really can’t be called a hypocrite because of it. We should not be in the business of looking for ways to give protections and immunities to those that injure others. Our civil justice system is built on the concept of personal responsibility.

There may be, of course, plenty of reasons for people to say negative things about various candidates and their tort “reform” platforms, though it always seems to be Republicans that advocate them. Despite  all of the cadidates running on small-government platforms, most (all?) advocate big government protectionism  for those that injure others through negligence. And they advocate such federal intrusions on purely intrastate matters.

Why would  small-government candidates prostitute their principles on this issue? I have only one viable explanation: That the lure of campaign contributions from Fortune 500 companies that are most likely to benefit from an evisceration of the civil justice system is just too great. And when substantial amounts of money talk, principles fall by the wayside.

I’ve addressed this topic numerous times, and won’t bother to repeat it all here. But when so-called small-governement candidates use tort “reform” to woo Tea Partiers and other conservatives, then I think they face serious hypocrisy problems by advocating big government protections for people or companies that injure others. And for more on that, you can read this: Does the Tea Party Believe in Conservatism or Tort “Reform”? (8 Questions). See also: Second Tea Party Leader Opposes Federal Tort Reform from Andrew Cochran at 7th Amendment Advocate.

———-

See also, the transcript of a radio interview on this subject from 2000: Santorum On Tort Reform.

Hat tips to Jordan Rushie, Christopher Sawyer, and Ben Glass (source of documents), who may not agree with my conclusions.

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22 Responses Leave a comment

  • David Sugerman 2012.1.9 at 09:08 | Quote

    You’re missing the mark on this one. Full disclosure: In a recent blog post, I referred to Sen. Santorum’s hypocrisy.

    The hypocrisy comes on two levels. First, Santorum and company advocate for caps that they know are wrong. In other words, Ms. Santorum apparently believed her claim worth more than the proposed cap, and the jury agreed. He has first-hand proof that one-size-fits-all damage caps are wrong, and he pushes forward anyway.

    Second, advocating for a policy like this after taking the benefit is a bit like pushing for a ban on all abortions after your wife apparently had one for medical necessity. (She reportedly did that, too.) Do as I say, not as I do.

  • Eric Turkewitz 2012.1.9 at 10:21 | Quote

    In other words, Ms. Santorum apparently believed her claim worth more than the proposed cap, and the jury agreed.

    You have conflated Mrs. Santorum with Mr. Santorum. As I noted, spouses are allowed to have different beliefs.

    Second, advocating for a policy like this …

    I haven’t seen Mrs. Santorum advocate for tort “reform.” If that existed, we would be looking at something much different, akin to Judge Bork’s slip and fall case, also noted in my blog posting.

  • Avi Goldberg 2012.1.9 at 10:40 | Quote

    Rick Santorum may not be a hypocrite, but he is a fool. If, after seeing how the caps that he supports can have a negative impact on a victim of malpractice, he still sticks to his position, he is indeed a fool (at best). At worst, he’s a cold hearted drone who slavishly lobbies for the overfed insurance industry.

  • ktb 2012.1.9 at 11:46 | Quote

    On an unrelated note:

    I am so struck by your statement “it isn’t “winnings”…. It’s compensation. Someone suffered a loss and the money is designed to make that person whole.”

    I work in the insurance industry, and this is a concept that many people seem unable to grasp. It’s delightful to think that there are such fundamental similarities between insurance and civil liability.

  • Eric Turkewitz 2012.1.9 at 11:50 | Quote

    My friend Mark Bower writes via email:
    ———————–
    Wow, Eric! You really are off base on this one.

    Right out of the box, for a plaintiffs’ personal injury attorney to justify Santorum’s outrageous “the rules apply to you, but not to me!” posture, is shocking. But because of the source (you), worse, it may be picked up by our enemies and turned against us.

    The three rationalizations to justify Santorum’s position, are badly thought out:

    1. “Spouses are entitled to have differing opinions.” Well, yes. But who says that this couple actually have different opinions? Who says Rick and Karen Santorum are an odd couple like Carville and Matalin?! (Is anyone foolish enough to think that if either Carville or Matalin ran for office, the other would stand on the podium next to them, gazing adoringly at them as they promoted positions they hate?!) I have never seen, heard, or read anything that suggests that Mrs. Santorum is anti-tort reform, although her husband is rabidly for it. So this rationalization has no apparent basis, and most likely, is contrary to fact.

    2. “Rick was only a fact witness at trial.” Not exactly. He was a U.S. Senator Pennsylvania, testifying before his electorate in a trial in Pennsylvania. It is not likely a coincidence that when a sitting U.S. Senator testifies on damages at trial, the jury rendered a verdict that the judge had set aside as excessive. A man who promotes caps on damages for everyone but his own wife, does not get a free pass on hypocrisy by claiming to simply be a “fact witness.”

    3. “His sharing in the trial proceeds doesn’t make him a hypocrite.” Huh? Why, exactly, doesn’t it?

    The blog post goes on to say that the courthouse door should not have been slammed shut on Karen Santorum. No, of course not. But Karen Santorum is a political wife, i.e., a campaign prop for her husband’s political ambitions. Her public support for her husband’s politicking is out there, in your face. If she differs from him on caps and tort reform, she has kept that hidden very well. This makes her a perfect hypocrite, at least on that issue. , Suggesting that she and her husband aren’t married in that hypocrisy, is silly.

    I think what you meant to say, is that the courthouse door should not be slammed in anyone’s face, including the hypocritical Santorum family. Everyone should have full, fair, and equal access to the civil justice system, even tort reformers. But extending them that right, while they would limit or take away that right from everyone else, does not balance the scales of justice.

    You have my permission and blessing to print this as an opposing viewpoint, if so inclined.

  • Eric Turkewitz 2012.1.9 at 11:52 | Quote

    I have never seen, heard, or read anything that suggests that Mrs. Santorum is anti-tort reform

    If there was such a thing, I wouldn’t have written the piece. Then she would be like Judge Bork.

    If she differs from him on caps and tort reform, she has kept that hidden very well.

    So, she keeps it hidden. As did Laura Bush who is pro-choice and pro gay rights. If spouses (or close advisors) shot their mouths off in public about political differences, they would lose their value as advisors.

    I think what you meant to say, is that the courthouse door should not be slammed in anyone’s face

    I’m glad that my message wasn’t lost.

  • Max Kennerly 2012.1.9 at 12:05 | Quote

    Santorum says, “we should made a law that says anything over $250,000 for non-economic damages is too much.” His wife was awarded over $250,000 for non-economic damages.

    When pressed on the issue, he lied about it, claiming “That’s where again you’re misled is that a lot of, there was cumulative damages … The medical bills, lost income, all those other things that were out there.” Source: http://abcnews.go.com/Primetime/story?id=1300271#2

    I don’t hold him responsible for his wife’s lawsuit. I do hold him responsible for refusing to admit that, under his stated political beliefs, his wife was awarded “too much,” and for lying about it.

    Either he thinks anything over $250,000 is “too much” for non-economic damage or he doesn’t. If he claims one rule for the rest of us and a different rule for his wife, he is a hypocrite. Simple as that.

  • Eric Turkewitz 2012.1.9 at 12:12 | Quote

    I don’t hold him responsible for his wife’s lawsuit.

    But many do. And that was the point of the post.

    Either he thinks anything over $250,000 is “too much” for non-economic damage or he doesn’t. If he claims one rule for the rest of us and a different rule for his wife, he is a hypocrite. Simple as that.

    No question about that part. But now we’ve entered his policy area, as opposed to those that criticize merely because his wife brought the suit.

  • Penny Wolowitz 2012.1.10 at 02:49 | Quote

    Santorum is all about hypocrisy. He knew what his wife was doing, yet he still advocated his cap. He also went to college, yet advocates that not everyone should. If anything, he’s the epitome of elitism because he wants to regain control of the lower class by keeping them poor and stupid. I’m sure he does give a damn about privacy too [ed: link that was unrelated to subject was deleted]

  • Chris Hitchens 2012.1.10 at 11:01 | Quote

    Its only compensation if its for lost wages or out-of-pocket medical bills or any other costs you are actually out of pocket.

    There is no such thing as “compensation for “pain and suffering”. That’s something that was invented by the plaintiff’s bar.

    Its a gift for most people. I’ve personally seen how some people live after receiving large PI awards. Living high on the hog, not having to work — yet perfectly healthy.

    They have received a lottery ticket.

  • Eric Turkewitz 2012.1.10 at 11:05 | Quote

    There is no such thing as “compensation for “pain and suffering”.

    Of course there is. Living in pain is a loss. Money is used as compensation for it.

    I’ve personally seen how some people live after receiving large PI awards. Living high on the hog, not having to work — yet perfectly healthy.

    Please name them. Otherwise you are just another anonymous troll.

  • Max Kennerly 2012.1.10 at 11:12 | Quote

    Chris — A week ago I met with a 24-year-old who was rendered quadriplegic by an accident. Prior to the accident he was a perfectly healthy, active young man who hit the gym three times a week and spent most of his time outdoors.

    Let’s assume he wins his case and recovers a million dollars for pain and suffering. If given the chance, would you trade your life with his? After all, he just won the lottery, right? I mean, who wouldn’t give up the ability to feed, bathe, and toilet yourself for some money in the bank?

  • Avi Goldberg 2012.1.10 at 11:19 | Quote

    To Chris Hitchens:

    The concept of compensating a person injured due to someone else’s negligence (or willful actions) goes back thousands of years. the Bible includes the phrase, “an eye for an eye, a tooth for a tooth”. That phrase is not meant to be taken literally. Rather, it establishes the concept of providing financial compensation to someone who has been injured. the formula is a one for one formula. In other words, if the damage inflicted is worth $100,000, then the compensation must be $100,000.

    Also, the Talmud explicitely lists a number of categories of compensation including, compensation for pain and suffering and embarassment. Thus, it is abundantly clear that these concepts are nothing new and they certainly were not “invented by the plaintiff’s bar”.

    And if you think that these compensation awards are lottery winnings and the injured parties live high on the hog, let me ask you this: How much money will you accept to live in pain for the rest of your life? How much to have your right leg cut off? How much for a brain injury that leave you a vacant shell of your old self?

    Seriously. I want an answer.

  • Chris Hitchens 2012.1.10 at 11:32 | Quote

    I can’t out people here legally — they may sue for defamation as, by definition, those people are litigous. There are many examples of people living as if they won the lottery,after winning PI awards. And not in any current pain or hobbled in any fashion.

    I know a woman who had the horrible tragedy of a son being born with Cerebral Palsy. Of course, without any real evidence, she blamed the doctors in a bogus med mal suit. This was a woman who generally was not under the care of a doctor during her pregnancy and did not maintain anything close to a healthy lifestyle.

    While her son is now taken care of via a trust, she also gets the benefits of the trust that was established. Instead of the inner city where she came from, she now lives in a luxury house in the suburbs and drives luxury cars. This is a woman who worked part-time in pizza shops before she and her lawyers scammed the system (while benefiting her son — the doctors did not cause her son’s injuries). CP can and does happen without negligence or malpractice.

    Because of the obvious sympathy her son would generate, the doctors and hospital settled out of court. Meanwhile, the mom now lives high on the hog, and the son is watched by nannies.

  • Max Kennerly 2012.1.10 at 11:36 | Quote

    A poor person with a kid permanently disabled by malpractice was able to move into a nice neighborhood. Is there no justice in this world?

  • Chris Hitchens 2012.1.10 at 11:38 | Quote

    @Avi Goldberg@Max Kennerly

    There are some catastrophic claims that can be just, but those aren’t the bulk of PI claims. A person in an auto accident (notice the word “accident”), who has some pain in her neck (that can’t even be definitely proven as actually even existing)for a few months and collects $15,000.00 to go away is bogus.

    And that’s just one example. For plaintiff’s lawyers there are no “accidents”. Someone has to be blamed and money collected. Not every injury deserves compensation.

  • Chris Hitchens 2012.1.10 at 11:39 | Quote

    Max Kennerly:A poor person with a kid permanently disabled by malpractice was able to move into a nice neighborhood. Is there no justice in this world?
    ReplyQuote

    Umm, there was no malpractice. Read again.

  • Eric Turkewitz 2012.1.10 at 11:46 | Quote

    A person in an auto accident (notice the word “accident”), who has some pain in her neck (that can’t even be definitely proven as actually even existing)for a few months and collects $15,000.00 to go away is bogus.

    Unless, of course, it happens to be your neck that’s in pain.

    May I refer you to the lawsuit of former Judge Robert Bork, who claimed such suits were akin to “Barbary pirates.” Until he was injured. And brought a lawsuit for those injuries.

  • Avi Goldberg 2012.1.10 at 14:28 | Quote

    @ Chris Hitchens:

    Are you an attorney? Do you have regular exposure to PI cases? If so, where do you practice and in what areas do you practice?

    I might be wrong, but I get the impression that you aren’t an attorney. Most, if not all, attorneys – even those that practice on the defense side of the bar – recognize that the large majority of cases filed have merit and are not frivolous. In the area of PI litigation, an attorney doesn’t get paid unless and untill he/she collects money for the client. I have worked in this field for 10+ years now and I have seen many many cases turned away because they lack merit or because the damages are too small to make it financially feasable for the attorney to take on.

    Yes, there are some attorneys who will take on cases with questionable merit and with little value, however, it is a rarity. Also, don’t forget that the attorney’s role is to be an advocate for the client; not the ultimate judge of the client’s claim. The attorney’s job is to take the facts of the situation and make the best legal argument he/she can.

    As far as your contention that many cases are settled just to make plaintiffs ‘go away’… again, I have to wonder where you get this information from. In my experience, an insurance company MIGHT offer one or two thousand dollars on a small case to make it go away, but most cases do not fall into that category and most clients would not take such an offer (all offers must be communicated to the client no matter how small or large the offer may be).

    The fact is that insurance companies often hold back on settling meritorious claims. The longer they hold out, the more money they make off the premiums. They also hope to drag the process on for so long that the plaintiff will grow impatient and decide to take a lower offer. Some insurance companies have even been caught in outright lies about the extent of the coverage their insured has.

    And finally, Chris, I wonder if you or a close family member have been sued (and lost). Based on your posts, I think that’s a distinct possibility.

  • Ron Miller 2012.1.25 at 15:28 | Quote

    @David Sugerman -

    I don’t think the idea Mr. Sugerman puts out there which is “they know they are wrong.” I think caps are wrong on lots of levels. But people – smarter than me and Mr. Sugerman – disagree. I don’t think the debate should be “the other side is wrong and they know it.”

  • David Sugerman 2012.1.25 at 15:46 | Quote

    @Ron Miller
    Thank you. Good point. By simply saying, “wrong,” I do little to advance the discussion.

    In this case,”wrong” is shorthand for several concepts. First, there is very little credible evidence that caps lower health care costs or liability insurance premium rates. Second, “wrong” is the notion that Congress is competent to set the value of every case about which it knows nothing, while a jury hearing the evidence cannot fairly and accurately set the actual value. Finally, “wrong” refers to the constitutional offense against the 7th Amendment and various States’ constitutional trial by jury provisions. Thanks for pointing out the danger of sloppy rhetoric.

  • Ron Miller 2012.1.26 at 10:30 | Quote

    @David Sugerman I agree with all of that.

Comments are closed.


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