Archive for the ‘tort reform’ Category

Trial Lawyer Lobbying in Albany (A lot or a little?)

It is often said —  but only by those who scream for tort “reform” — that the reason the laws on personal injury and personal accountability don’t change is because of all the money that trial lawyers pay to lobbyists and to political campaigns.

Well it seems that, when it comes to lobbying in Albany, we trial lawyers don’t even crack the top 10 according to this just-released report by the New York Joint Commission on Public Ethics (download report). But, look who does make the top 10:


And if you are wondering about the top dog, the Committee to Save New York, it is a business group of mostly real estate developers.

One day I’d love to see a study of how much the Fortune 500 companies donate to campaigns and compare that to donations by consumer activists.

Something to think about.

Oh yeah, we trial lawyers spent just 355K for lobbying according to the report:

House GOP Again Attempts Federal Power-Grab On Medical Malpractice Lawsuits

House Republicans like to claim that they believe in shrinking the power of the federal government and making sure that states retain the rights they were given in the Bill of Rights under the Tenth Amendment.

But that, apparently, is only what they say, not what they do. As I sit at my keyboard, Republicans are once again hypocritically attempting to subvert the power of states to make their own laws when negligent conduct by doctors injures patients. In a vote set for next week, the House is to decide on a bill that would, in part, cut a rationing board that could force Medicare cuts without congressional approval.  This board is the infamous (and mis-named) “death panels” that Sarah Palin tried to conjure up the debate over health care.

Because this cut would increase federal expenditures, the GOP figures it would take the opportunity to jump on a long-favorite subject of theirs: Granting federal protections and immunities to the medical profession when their negligence causes injuries to patients, under the guise of calling these cuts in federal funding. This would override state tort laws. Their touted theory is that, if there are less concerns about lawsuits, there will be less “preventive medicine.”

They call this tort “reform,” but we call it what it really is, a payback to the massive insurance-healthcare conglomerate that supplies so much cash to the Republican party. There is no other explanation, since the act of seizing more federal power and subverting state laws runs directly contrary to conservative political theory. Even conservative theorists agree. But the House Republicans are elected officials, and political theory takes a back seat for many of them to something vastly more important: Money.

It’s also worth noting that cutting the rights of people who have been injured does not decrease Medicare expenditures. They tried this trick in Texas, and they found that costs escalated even faster than they went up elsewhere. See: The Failure of Medical Malpractice Caps (Healthcare Costs Rise in Texas).

Is this a good time for me to say, “I told you so?” Back in January 2011, when the Republicans took control of the House, their first order of business was to read the Constitution, and pledge to defend it. At that time, I wrote:

But will Republicans really follow the Constitution when it comes to tort “reform?” My bet is no, based on a history of Republicans trying to limit consumer access to the courts. One academic favored by the right wing, Richard Epstein, arrogantly refers to the constitutional right to a civil jury trial as a “procedural feature.”

So there you have it. The Republicans are once again trumpeting tort “reform” despite the fact that it violates their own political theory of smaller federal government, despite that it grants protections to those that injure others due to negligence instead of holding them accountable, and despite the fact that it doesn’t actually do what they want it to do.

See also: House Attack on ‘Death Panel’ Doubly Hypocritical (Jay Bookman @ Atlanta Journal Constitution)

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.

Indiana State Fair Stage Collapse (And the Brutality of Damage Caps)

Back in August a stage collapsed at the Indiana State Fair as the band Sugarland was about to take the stage. Seven were killed and dozens more injured. And now the State of Indiana is waltzing away from that tragedy having paid a mere $5M in total to 63 of the 65 victims and their families. For the families of those killed, a paltry $300K. If one of those killed or badly injured was a parent, that money will vanish quickly.

Why $5M? Because Indiana decided to limit its responsibility when it handed itself this brand of immunity and protection. A State distancing itself from its own responsibilities as people are killed on its property under its watchful eye? Sounds an awful lot like the old Soviet Union. (Ironic that this tort “reform” stuff is pushed by so-called conservatives, no?) Hey, Indiana don’t need none of that stinkin’ personal responsibility crap. That’s for the little people.

So even if there were 100 victims, the answer to them would be: Too bad. Go suck an egg. Get lost.  And let’s hoist the hammer and sickle flag.

This is the brutality of arbitrary damage caps. So find your local tort “reformer” and give him a pat on the back for figuring out how to further screw the injured.

And what of the children of those killed or badly injured? What happens to schooling, healthcare and home? By tossing these children aside like so much waste — and make no mistake about it that’s what Indiana is doing — are they more likely to become productive members of society or less likely?

Welcome to Indiana. It’s also like the Dark Ages. But with basketball.

The Failure of Medical Malpractice Caps (Healthcare Costs Rise in Texas)

Public Citizen released a report this week on the abject failure of a $250,000 medical malpractice cap put in place by  Texas in 2003. Why is this is important? Because as I discussed  two days ago, so-called conservatives are trying to expand federal power to implement a similar scheme on the federal level.

So it’s important to note that such a scheme fails not only on the constitutional level as viewed from exercising federal power over state claims, but that it fails on a state-wide level as well in that it does not lower healthcare costs as it was intended to do. It may lower the number of malpractice suits by its grant  of protections and immunities to those that negligently injure others, but it doesn’t improve healthcare costs.

Most significantly, the report contradicts the “defensive medicine” theory, which holds that fear of litigation is to blame for stark increases health care costs. While the number of lawsuits plummeted, and with it the fear of being sued, Medicare costs rose 13% faster than the national average. According to the report, “health insurance costs have outpaced the national average and the percentage of residents lacking health insurance has risen.”

Some other findings:

Medicare spending specifically for outpatient services in Texas has risen 30.7 percent faster than the national average;

Medicare diagnostic testing expenditures in Texas have risen 25.6 percent faster than the national average;

Premiums for private health insurance in Texas have risen faster (51.7 percent) than the national average (50 percent);

The percentage of Texans who lack health insurance has risen to 24.6 percent, solidifying the state’s dubious distinction of having the highest uninsured rate in the country;

The per capita increase in the number of doctors practicing in Texas has slowed to less than half its rate in the years leading up to the caps;

The per capita number of primary care physicians practicing in Texas has remained flat, compared to a sharp increase in the years leading up to the caps; and

The prevalence of physicians in non-metropolitan areas has declined.

This is the synopsis of the report, from Public Citizen:

“A common perception among policymakers and pundits is that medical malpractice litigation is significantly, or even chiefly, to blame for skyrocketing health care costs and steadily diminishing access to care. But analysis of data in Texas, which in 2003 imposed some of the strictest liability caps in the country, tells a far different story. While litigation over malpractice in Texas has plummeted dramatically since the caps were imposed, residents of Texas (except for people with financial connections to liability insurance companies and, to a lesser extent, doctors) have realized few, if any, benefits. Instead, the health care picture in Texas has worsened significantly by almost any measure.”

The full report is here:   A Failed Experiment; Health Care in Texas Has Worsened in Key Respects Since State Instituted Liability Caps in 2003

I had addressed the problems in Texas back in 2009 in this post:  Do Texas Med-Mal Damage Caps Work? (What Do You Mean By Work?)

So the bottom line is this for medical malpractice caps: Injured people have the courthouse doors slammed in their faces; Those that are negligent are protected; There is zero benefit to the public at large; And insurance companies pocket most of the difference.

The Conservative Attempt to Federalize Tort “Reform”

As many of you know, there is a congressional “Super Committee” set up to look for ways to better balance our budget via expenditure cutbacks and/or revenue increases. And among the ideas floated by certain conservatives, is to sneak medical malpractice “reform” into the package.

I’ve railed many times against the abject hypocrisy of conservatives seeking to enlarge federal power by giving protections and immunities to those that injure others by negligence. Without me repeating myself, these are a a few, then I’ll get to the link I really want to send you to:

The New Congress and the Constitution (Will they really defend it?) (January 6, 2011)

Does the Tea Party Believe in Conservatism or Tort “Reform”? (8 Questions) (May 3, 2010)

The False Premises of Medical Malpractice “Reform” (Response to Richard Epstein in WSJ) (June 30, 2009)

Today it is someone else’s turn to hold the torch, that being Andrew Cochran, founder of The 7th Amendment Advocate, a website dedicated to educating the public and policymakers on the centuries-long history of the right enunciated in the 7th Amendment to a jury trial for civil suits.

And he writes today on the many conservative voices in academia that have risen up to oppose as unconstitutional the attempt to use federal power to limit the rights of the citizenry in state court claims: Letter to “Super Committee” Opposing Federal Tort Reform Proposals

Among those conservatives that have spoken out against the hypocritical usurpation of state rights are:

Professor Randy Barnett; longtime tort reform proponents Walter Olson and Ted Frank; Republican Members of Congress such as Sen. Tom Coburn and Reps. Ted Poe, John Duncan, and Ron Paul; and the largest association of state legislators in the country

Cochran today sends a 10-page letter to the Super Committee members, dwelling mainly on this issue: That conservatives cannot scream that President Obama’s health care law is unconstitutional as a federal power grab while at the same time asking to give the federal government more power.

The letter, filled with essential links and quotes, is here: Letter to “Super Committee” Opposing Federal Tort Reform Proposals.

Tort “Reform” Claims more Victims

Remember the Metrolink train crash from 2008 out in Southern California? It claimed the lives of 24 innocents people and injured over 100 more because a train engineer was texting while driving and missed a signal.

But Congress granted immunity for all claims over $200 million, forcing a local judge to make a Sophie’s Choice among victims, while the negligent corporation went skipping merrily away after paying the cap.

Andrew Cohen has the heartbreaking story at The Atlantic: The Real Victims of ‘Tort Reform’

Hot Coffee Tonight

Late last year I wrote about Hot Coffee, a documentary about the tort “reform” industry. The movie, which debuted at the Sundance Film Festival, included much about the McDonald’s hot coffee case where the late Stella Liebeck was scalded from the brew. I would tell you more about the case, except that you already know the story.

Or, perhaps, you only think you know about the story. Hot Coffee looks not only at that, but at why you think you know about the case and how the publicity campaign got you to form opinions. The move airs on HBO tonight. The trailer is here.

And this is the lede for a review by Hank Stuever from the Washington Post:

We get a lot wrong in our media-transfixed culture, where a wry quip and populist outrage almost always trump any understanding of complicated facts. But rarely do we get someone as wrong as we got Stella Liebeck.

Was the movie good? Steuver reaches this conclusion:

Unlike so many documentaries these days, “Hot Coffee” is refreshingly unadorned or manipulated for artistic or tear-jerking effect. It winnows down complicated legal arguments and anecdotal cases with compassion and clarity. It does everything a documentary can do — which, in terms of effecting change, isn’t much. But if nothing else, it has at least given Stella Liebeck what McDonald’s and Jay Leno did not: understanding.

So if you have HBO, it seems like this is something you might want to tune in to. Especially if you are on the other side of the aisle from where I usually stand. Because it isn’t just about coffee.

Other reviews of the film after it debuted at Sundance can be read here.

Barney Frank: Injured People Must Sacrifice Even More

Frank: The injured haven't suffered enough.

Rep. Barney Frank has decided to join the tort “reform” movement, asking that those who’ve been catastrophically injured should pitch in more to help with national financial troubles caused by others. In an article today in The Hill, he had this to say:

“I also am ready, as a liberal, to look at the whole question of malpractice and liability reform,” Frank said during an appearance on MSNBC’s “Morning Joe” program, according to a transcript. “People who are injured ought to be compensated, but I do think that that’s something that I would throw in if we had an otherwise overall compromise [on the national debt], because I recognize everybody’s got to give something to get this.”

In other words, those who have been most badly injured (the ones most likely to be most affected by restrictions on civil suits) haven’t sacrificed enough by virtue of their disabilities, diminished (or lost) employment, and destruction of lifestyle.

Now, according to Frank, they also need to give some level of immunity to those whose negligence caused them to be injured in the first place.

And somebody in his office ought to give him a copy of the recent study from Columbia Presbyterian/Cornell. That’s the one where the obstetrics and gynecology department lowered their malpractice costs by over 90% by improving patient safety.  You see, the best way to lower malpractice costs is to lower the incidents of malpractice. But if you choose immunity instead,  you will only end out killing patients by killing the incentive to improve.

See also: Why Medical Malpractice “Reform” Will Increase the Deficit, Not Reduce It (Joanne Doroshow @ HuffPo)

Photo by Martin Schoeller, The New Yorker

My Op-Ed in The Journal News

I have an op-ed in today’s Journal News. This is a Gannett paper that serves the suburban counties just north of New York City:

Cuomo’s medical malpractice ‘reform’ will hurt victims and taxpayers

Gov. Andrew Cuomo is now proposing to grant immunities and protections to hospitals that injure or kill patients by acting negligently. Voters and consumers should be alarmed, because the effect of the proposal will shift the burdens of those most seriously hurt onto both the victims and the taxpayers. The beneficiaries are the insurance companies and those that acted negligently.

These new proposals are tucked inside a document, far from public view, called the Medicaid Redesign Report. The proposed new law would create an artificial one-size-fits-all cap of $250,000 on medical malpractice pain and suffering claims — even for those who’ve been paralyzed or brain damaged from negligence. It would also strip rights away from neurologically impaired infants by creating a new government-created fund, so that taxpayers end up subsidizing malpractice. The authors of the report are insurance companies and medical institutions. There were no patient representatives on the committee.

This is an anti-consumer bill that is flawed on both public policy and monetary grounds. The New York State Bar Association — the largest bar association in the state, with lawyers who represent both doctors and patients — has condemned these two proposals. Essentially, the taxpayers will be picking up the tab for the negligence of others.

Currently, New York caps personal injury cases for those runaway verdicts you see in the papers from time to time. These caps are geared to individual cases, a process the state has undertaken for almost 200 years. Fundamentally, if a verdict “deviates materially from what would be reasonable compensation” (either by being way too high or way too low) the trial court, or the appellate court after that, will order a new trial. So the system in place has both a belt and suspenders to protect litigants from the occasional outlier verdict.

What is the advantage of changing a system that isn’t broken? Well, by limiting the rights of the citizenry to a trial by jury, it gives a healthy dose of immunities and protections to those that committed the wrongful acts. Is that an advantage? It is if you are the one that caused the injury.

If the arbitrary cap is in place, of course, the injuries won’t be diminished. The only thing that will change is that the economic burden of those injuries will be borne by the victim instead of the party that caused them. To the extent that people are bankrupted by the toll of their injuries, the taxpayers will then foot the bill for Medicaid and a host of other social safety net programs.

Is it sound public policy to victimize the injured person a second time and discard the concept of personal responsibility? Should taxpayers bear the burden of loss instead of the insurance companies that collect premiums for just this reason?

Natural cap

Factors already keep malpractice cases in check. First, the suits are very expensive to bring. It could cost more in experts, records and depositions to get a verdict. Second, New York’s low legal fees, the result of “reforms” that were enacted in the mid-1980s, are a disincentive to lawyers to overreach. Legal fees start at 30 percent of the first $250,000 and rapidly slide down to 10 percent of anything over $1,250,000. In other words, complex and expensive malpractice cases have lower legal fees than the norm, causing a predictable drop in the number of attorneys willing to undertake these difficult cases.

The result of that “sliding-scale” fee structure is that doctors and hospitals in New York now enjoy significant immunity from medical malpractice cases. It is simply too expensive to bring many of the actions, even if they have merit.

The insurance companies and medical professionals that drafted the “reform” proposal now ask for a second giant helping of immunity by eviscerating the pain-and-suffering damages. The ones who will be hurt, of course, are those who have been most seriously hurt. It will have no effect on frivolous cases, as they do not have a value over $250,000.

If the government wants to cut Medicaid costs, and cut lawsuits, the efforts must be devoted to patient safety, not killing patient rights. Telling people they can act with impunity doesn’t increase safety. According to the February issue of American Journal of Obstetrics & Gynecology, New York Presbyterian Hospital/Weill Cornell reduced errors and slashed their medical malpractice payouts by 99 percent due to enhanced patient safety initiatives. The message is clear; tort “reform” does not equal patient safety.

With respect to the plan for a new fund to pay the costs associated with those lives that been devastated the most — neurologically impaired infants — testimony in Albany on this issue uncovered a startling fact: They haven’t figured out how to pay for it, though a “baby tax” is contemplated on people and companies that buy insurance. This gets the insurance companies off the hook for paying for the errors of the people they insure, and places more burdens on the taxpayers.

If Big Hospital Inc. commits malpractice and injures someone, why should the taxpayers subsidize that malpractice? Ultimately, of course, someone will pay, and it makes sense that the one that did the damage should pay the bill.

This scheme makes no sense on either public policy or economic grounds. There will, however, be a windfall profit for the insurance companies and those doctors who hurt the most people and make the biggest mistakes.



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