Friday, February 14, 2003

Even back in the last century [1999], a comprehensive study showed that "tort reforms" do not produce lower insurance costs or rates. AND, tort reformers, when pressed, admit it:
Specifically, Sherman Joyce, president of the American Tort Reform Association
(ATRA), when asked to respond to Premium Deceit, told Liability Week (July 19, 1999),
"We wouldn't tell you or anyone that the reason to pass tort reform would be to reduce
insurance rates." Victor Schwartz, ATRA's General Counsel and one of the principal "tort
reform" lobbyists in Washington on behalf of business interests, told Business Insurance
(July 19) that while he thought some severe "tort reform" measures could reduce
insurance rates, he said when pressed that, "[M]ore importantly … many tort reform
advocates do not contend that restricting litigation will lower insurance rates, and 'I've
never said that in 30 years.'" (emphasis added.) Further backing-down, Mr. Joyce
followed with the comment, "'We think the real focus (of tort reform) should be on
(restricting) the payment of punitive damages,' rather than on lowering insurance costs."

Remember, this was four years ago.

Here's more proof that insurance premium increases are linked to the state of the economy, and not malpractice verdicts:
First, over the last 8 years, the amount that medical malpractice insurers have paid out,
including all jury awards and settlements, has approximately tracked rates of medical
inflation or fallen. When measured in constant dollars, the average payout per doctor
rose somewhat from 976 to 983, but was stable to slightly down between 984 and
00 . In other words, medical malpractice claims payments (in constant dollars) have
been flat over the last decade.

Second, medical insurance premiums charged by insurance companies over the last 30
years in New York have not corresponded to increases or decreases in payouts. Rather,
premiums have risen and fallen in concert with the state of the economy — insurance
premiums (in constant dollars) have increased or decreased in direct relationship to the
strength or weakness of the economy, reflecting the gains or losses experienced by the
insurance industry’s market investments and their perception of how much they can earn
on the investment “float” (which occurs during the time between when premiums are
paid into the insurer and losses paid out by the insurer) that doctors’ premiums provide.

Anybody listening?

The ABA House of Delegates has endorsed severe restrictions on asbestos victims' right to sue and recover damages. I reported on this impending action last week. The ABA press release underplays it significantly:
In another matter, it supported establishing medical criteria for claims for non-malignant asbestos-related disease in either state or federal courts

Makes it sound like there previously weren't any criteria for such claims, doesn't it. Here's the message from ATLA's president, Mary Alexander:

On February 11, the ABA House of Delegates endorsed the Report of the ABA'S Commission on Asbestos Litigation.

The ABA Report calls upon Congress to pass legislation blocking access to the courts for hundreds of thousands of victims who suffer from asbestos-related disease. Under the Commission's recommendation, unless individuals can meet extremely arbitrary and restrictive medical criteria and satisfy various other rigorous procedural requirements, their claims are to be summarily dismissed. The Commission's Report would eviscerate the rights of every asbestos victim who suffers from serious but non-malignant asbestos related disease. Presently, the claims of these victims are valid under the law of all fifty states.

ATLA worked hard to persuade the ABA not to abandon its historic commitment to the rule of law as enunciated by the laws of the fifty states. Members of the U.S. Senate, too, including Senators Max Baucus (D-MT) and Patty Murray (D-WA), urged the House of Delegates to step back and reconsider the Report.

In choosing to ignore these pleas and, more important, the rights of these victims, the ABA has made a bad decision. I am confident that once they learn the truth, the American people and their representatives in Congress will demand that the greedy companies that caused the asbestos epidemic be held responsible for the destruction they caused.

Apparently, none of the ABA's House of Delegates suffer from asbestosis. Tells you something about the composition of that body, too.

Michelle Dulak asks about joint and several liability. This doctrine is usually applicable in states that still retain the concept of contributory negligence. In contributory negligence jurisdictions, a plaintiff who is even 1% at fault in an accident situation recovers zero. Joint and several liability is kind of like the other side of the coin; where a defendant has even 1% of fault, that defendant is 100% at fault. In contrib jurisdictions, you see these 2 complementary public policy considerations at work. If defendants can show plaintiff at all at fault, plaintiff gets nothing; at the same time, if plaintiff can prove any fault by any defendant, plaintiff recovers all from any one defendant, or from all the defendants. Contrib, and joint and several liability, are on the way out.

Most states have adopted some form of comparative fault, which generally holds that each party bears his own percentage of fault. Thus, if plaintiff is 10% at fault, the gross verdict is reduced by 10%. Most comparative fault states have at the same time done away with joint and several liability. Thus, a defendant adjuged 35% at fault would only be on the hook for 35% of the verdict.

In Tennessee, the abolition of the doctrine has gone too far, in my opnion as well as the Chief Justice's. In the 2000 Carroll case, the Tennessee Supreme Court held that fault can be allocated against even a party immune from suit. Thus, if a defendant can get a jury to agree that, say, the state [which has sovereign immunity as to many tort actions] is to some degree at fault, then the net verdict to the plaintiff is reduced by that degree of fault allocated to an immune non-party. The policy consideration here is that, instead of making a partially at fault defendant pay the judgment, the plaintiff must bear the brunt of not even having a cause of action against the immune party.

Michelle also poses a question, I guess, about coverage and liability:

OK, two cases: (1) child on one-rope swing set up by Dad in own backyard -- rope breaks where attached to tree limb, child falls off and breaks clavicle. (2) ditto in public park, except that there it would be a rusty chain or something, not a rope. Anyway, support breaks, child breaks clavicle.

There might be negligence in either case. There might be *no* negligence in either case, just random failure. But what is certain is that the kid injured in the public park has a shot at damages in the mid-5 figures, and the kid injured in the backyard has no shot at anything. Unless they figure out how to sue the manufacturer of the rope.

To put it another way: You quoted at length an email from a juror in a trial about a broken ankle. If I break an ankle coming down the outside stairs of my apartment building, because a light is out, I might recover damages if I sued. If I did the same walking down the steps between levels of this apartment, because my roommate hadn't replaced a lightbulb as he said he would, I don't think I'd recover squat. But the ankle's just as broken, yes?

In the swing example, you can still make a claim, daughter versus daddy, if daddy negligently maintained the swing. Now, homeowners coverage normally excludes from coverage residents of the covered household, but daughter can still theoretically sue dad and recover, just with no payment by the carrier.

Same thing with the fall down the stairs. In a common area, by contract, the landlord is responsible for reasonable maintenance and upkeep. Not wthin the leased premises, however. You could sue the roommate, but renter's coverage will probably exclude her from coverage.

In both cases, you can still prove liability and get a judgment, but in both cases, because of the normal insurance policy language, there will be no coverage.

Finally, why does Michelle think $45,000 is too much for a broken ankle? Remember, out of the gross recovery comes medical expenses, which could be $10,000 or more, expenses of litigation, which could be another couple of thousand or more, and the attorney's fee, which is probably in the neighborhood of $15,000. And before you start moaning about the fee, keep in mind who's taking all the risk: the lawyer who is spending thousands of dollars and maybe 2 years of her time to try to effect a recovery. So, if you assume the previous numbers, the net recovery out of the gross of $45,000 is about $18,000. Low enough for you?

ATLA has prepared a Fact Sheet on H.R. 5, the malpractice reform bill. Hint: it covers more than malpractice.

Thursday, February 13, 2003

Been there, done that, and tort "reform" still has not worked.
This public opinion watch indicates that while the Bush Administration is selling its domestic agenda hard, not many people are buying.
How California solved its insurance crisis? Insurance reform: "The periodic insurance upheavals that afflict the nation have nothing to do with lawsuits or the size of damage awards, both of which, in the case of medical malpractice, have not increased significantly. Rather, insurance companies manufacture these "crises" when they decide to boost premiums in order to offset investment losses." Here's a chart detailing the industry's premium rates. Conclusion based on actual experience: from 1976, when caps were enacted, to 1988, when insurance regulation went into effect, malpractice premiums rose 190%. After 1988 and insurance reform, those same premiums went down 2%.

According to this writer, the author of the Proposition 103 measure that caused the reduction in premiums, insurance company profits "soared by $11.9 billion in the first three quarters of 2002." And, "What about the huge losses that insurers insist are forcing them to increase rates? They’re as phony as Enron’s bookkeeping."

Joanne Doroshow, executive director of the Center for Justice and Democracy, makes some salient points in her interview opposing tort limitations. Such as:
1. There is no basis for tort reform whatsoever. Lawsuits, lawsuit filings, jury verdicts are down, and they’ve been that way for years. But insurance companies are blaming juries and victims for their own mismanagement and lost investment income. So, that’s why it’s a scam.

2. Doctors, hospitals and HMOs don’t want to be sued. They don’t want to be second-guessed when medical errors occur. And one way to certainly stop patients who have been injured from suing is to take their rights away, which is what tort reform does.

3. Federal law limiting damages in this type of case sets a very dangerous precedent, and could lead to other industries seeking limitations on damages in years to come.

4. There is danger in limiting one's right to sue, because often the results of a lawsuit lead to changes within the targeted industry to make it safer.

5. There is no "lawsuit abuse:" only one in eight people who are hurt by malpractice even make a claim for compensation, an extraordinarily low ratio.

Nice interview. Read it all. has weighed in and says that "if discouraging 'frivolous' lawsuits is the goal, why cap damages in successful suits, those that, by definition, are not frivolous?" And:
The current insurance "crisis" is, in fact, just the latest push in a decades-long effort to pass "tort reform" -- a campaign by corporations, doctors and insurance companies to insulate themselves from legal accountability by tying jurors hands.

"The people pushing tort reform have used campaign contributions and lobbying to compromise elected officials and regulators," says one consumer advocate. "Juries are the last line of protection for consumers. Jurors don’t take campaign contributions. They can’t be lobbied. What tort reformers fear most is 12 people they can’t control."

I got the links from Eric Alterman at Altercation [scroll down almost to the Rush Limbaugh apology -- thanks, Instapundit].

Here's a nice email from a lawyer who's seen this type of work from both sides:
I am a lawyer in Atlanta (native of Tennessee-UT undergrad, Vandy law). I have been practicing 14 years, the first half at a large defense firm (King & Spalding) and now as a plaintiffs' lawyer. I feel I have a good sense of the realities of the tort world.

One thing I know is that the public perception of the tort system as defined by the "reformers" is completely unrelated to the reality in the trenches. Specifically with regard to medical malpractice, there is no harder case for a plaintiffs' lawyer to pursue. In Georgia, as in most places, doctors win the vast majority of the trials (statistically over 70%) even though no case can even be filed here without a qualified doctors swearing under oath that the defendant doctor was negligent. This is the result, in part, of a "Marcus Welby" view of doctors as benevolent caregivers and the propaganda jurors hear about the evils of the civil justice system. Every plaintiffs' lawyer knows that when he or she goes to strike a jury there will be a significant number who will vote for the defense no matter the merits--this is just the real world we face.

These cases are very expensive to pursue (experts are the prime expense) and hard to settle much less win at trial. Because the insurers know they have the upper hand at trial regardless of the merits, they have significant leverage in settlement and they often refuse to settle. Because this risk versus benefit is so treacherous, any lawyer who wants to remain in business has to screen these cases very carefully and only take those that are clearly meritorious. Taking an iffy case has the very real possibility of ending 3 years later with no recovery and hundreds of hours and much money spent. Thus, the reality is that in this country where there are tens of thousands of documented cases of neglect each year many, in fact most, of these situations end with the victim being without recourse.

No one wants health care to suffer because doctors quit practicing due to insurance premiums. If it were shown that insurance rates were increased by jury awards and not the effects of the economy on insurers' bottom line (through investment losses), then a change in the system would be worth considering. However, whether the message gets through the propaganda or not, the truth is that large jury verdicts are exceptionally rare and that t most victims are left uncompensated.


Wednesday, February 12, 2003

The Insurance Consumers Advocate Network has had a position paper opposing tort reform since 2000, which shows that these issues are noting new. Only the latest concerted capmapign by Big Insurance is.
It's fallen, and it can't get up:
the rush to cap awards ignores the problem of medical negligence in America, which accounts for 44,000 to 98,000 preventable deaths a year, according to a 1999 study by the Institute of Medicine, part of the National Academy of Sciences. "The so-called crisis with medical malpractice is another symptom of a health care system that is broken and out of control," said Dena Mottola, acting director of the New Jersey Public Interest Research Group. "There's a lot of misinformation out there, but whether or not you agree with the numbers, until we fix the underlying problems, nothing will change."

The misiformation is in the propaganda that large verdicts are routine and commonplace. They're not.

You know those take home instructions that the hospital gives you when they release you? Apparently, they don't work too well. Either that or the hospital is releasing people too soon. On the other hand, hopsitals are often between a rock and a hard place in terms of the timing of discharge. The longer one stays in-patient, the more likely it seems to be that the patient will catch one of those nasty bugs that always seem to be running around in the hospitals.
Well, in a show of good faith, I have now registered the domain name of So, for those of you who like to type as little as possible, should now take you directly here! Also, the blog has now become Thanks for tuning in!

Tuesday, February 11, 2003

Florida's malpractice task force findings are a dud. For instance:
If even the insurance industry promises no near-term rate relief, why should the governor and the Legislature -- or the doctors themselves -- believe in it? That rates are lower in California, which has such a cap, proves nothing. California's average premiums are still higher than those of 10 states that don't arbitrarily restrict the rights of injured patients.

Got that? Even if tort "reform" is passed, Big Insurance promises no rate relief. You know, I saw a movie once, and it was called "The Sting"....

Read this sad tale, and ponder that this couple probably wouldn't have been able to get a lawyer with medical negligence caps in place.
Public to doctors and Big Insurance: Stop lying!
The medical lobby's campaign for tort limitations launched in New York State this year is a campaign of deception, according to this report.
A high proportion of the doctors who do delicate medical procedures — and many of the hospitals where they are performed — have relatively little experience at them, says the New York Times. For the raw data, see the Center for Medical Consumers.
California's system of insurance regulation, not malpractice caps, lowered medical malpractice premiums for physicians in that state. This conclusion is based on a report from the California-based Foundation for Taxpayer and Consumer Rights (FTCR). The report in summary finds:
Twelve years after the enactment of malpractice caps, doctors’ premiums had nearly tripled and reached an all-time high in California.

Insurance reform Proposition 103 reduced California doctors’ premiums by 20% within three years.

Insurance reform required medical malpractice insurers to directly refund more than $135 million to policyholders.

Three of the state’s largest malpractice insurers – The Doctors Co., Norcal Mutual and SCPIE – refunded $69 million to doctors to comply with Proposition 103.

Which just proves what I've been saying....Doctors should pay heed to this report; if they want measurable, significant rate decreases, then we ought to be looking at the California experience, as opposed to the unsupported bald allegations of Big Insurance and their shills, the panicking doctors and the Administration.

Kentucky's malpractice bill failed to pass the state senate. Moral: count the votes before bringing it to the floor.
John Kerry has prostate cancer.
What? Me Worry? Well, apparently the Bushies are scared of John Edwards. Edwards' spokesperson says "We're flattered by all the fuss and attention being heaped on John Edwards by the White House. . . ." Apparently, the White House has been saying, of Edwards, that he's ". . .a Friend To His Fellow Personal Injury Trial Lawyers." Like that's a bad thing?
Ernie the Attorney picked up my post last week from the juror in the medical malpractice case. Thanks for looking, Ernie.
Because I'm now obsessed by this dern blog, I did a Google search to see if I've been quoted by various and sundry. First hit was this nukevet guy/gal. He/she took umbrage at my statement about the Columbia breakup: "Frankly, it's a miracle somebody didn't get knocked on the head by one of the thousands of pieces of raining disaster." Apparently this blogger thought I was implying that litgation was in the offing. Touchy, touchy.... In fact, I was truly surprised that, given the number of fragments that there were, no one got hit. I don't know whether there would be a cause of action [well, probably, because NASA is already soliciting property damage claims], but this person apparently thinks I've got no sense of propriety in the matter. Wrong, bucko.

He also says: "While the cost of malpractice insurance may not fall strictly within the realm of greedy trial lawyers, I think the number of frivolous suits looking to place blame where none exists certainly does." Why does the word "greedy" always seem to come before "trial lawyers" for these types of folks? How come nobody says "greedy doctors" or "greedy insurance executives" -- you know, the ones who make zillions of dollars a year. And, if this guy has got some real data on what he assumes are a significant number of "frivolous" lawsuits, then I wish he'd post the data, instead of throwing out those types of irresponsible zingers.

On the bright side, he does say "But ya gotta give the guy some credit - he is battling one of the hardest PR battles I can think of, and offering us a perspective we usually don't see." So, maybe this guy's not all bad either. Heh.

Dominick Dunne is out to get Gary Condit, and Condit is returning the favor in the form of a defamation lawsuit. For a defense lawyer's perspective on why Condit should drop it, see this link.

Defamation actions against public figures are almost impossible to win, but come on. Dunne apparently accused Condit of being complicit in a plot whereby Chandra Levy was kidnapped by middle eastern types and then dropped in the ocean. He even repeated the allegation after her body was discovered, according to John W. Dean's thoughtful argument in favor of carrying on with the lawsuit.

Lawyers are "devils" who are trying to undermine the Constitution, says this guy, accused of "tampering" [whatever that is], who requested Jesus Christ as his court-appointed attorney. The judge declined his request. Courteously.

COMMENT 1: would Jesus have good jury appeal? COMMENT 2: would the judge make him wear a coat and tie? COMMENT 3: hee-hee!

FoxNews had this to say about the American Bar Association's move to restrict court access for certain asbestos cases:
[The ABA] had a hard time deciding the timing of a debate on a controversial asbestos lawsuit proposal. The vote had been scheduled for Tuesday, the final day of the group's meeting in Seattle. ABA leaders moved it to Monday, then switched it back again by a vote of 227-226.

Opponents of the plan handed out literature outside the group's meeting. They also brought victims of asbestosis to Seattle to lobby against the proposal that would limit who could sue.

The plan, intended to help courts deal with massive numbers of lawsuits, restricts court action to people with asbestos-related pulmonary disease.

If that 227-226 vote is any indication, then the ABA is very much divided on this move, which I blogged about last week.

Star Watch: Catherine Zeta-Jones and Michael Douglas are suing in an English court because paparazzi took their photos after their wedding: " The couple are suing for 500,000 pounds ($815,000) for loss of income, stress and damage to their careers because of the poor quality of the shots." Apparently, they had contracted with one magazine, and are upset that another magazine scooped the one with which they contracted.

Does the previous quote mean that, had the photos been better quality, there would be no case? Or, to carry on this ridiculousness, what would happen if the photos from the authorized magazine had been of poor quality. Do the Douglas's have a breach of contract action against them?

Now this is a silly case.

UPDATE: Here's CNN's take on the same story. It doesn't mention the quality of photos factor. I still think it's silly.

Elizabeth Kerl Caucci sent a link to Centers for Disease Control statistics on mortality from various causes. When the intent and manner of injury was ""All Intents" and the mechanism of injury was "medical care, adverse effects," it shows 2,804 deaths [and deaths only, i.e., not inclusive of injuries where the patient survived] in 2000. When I went general, and got the numbers for all intents and all mechanisms of injury, I got 151,268 for 2000. Thus, deaths from adverse medical care accounted for 2% of all CDC-reported mortality in 2000.

Monday, February 10, 2003

On the subject of litigation, and in light of that weird documentary last week on ABC, here's the affidavit of the poor young man who says he was sexually molested by Michael Jackson. WARNING: the post contains an image of an affidavit that is sexually graphic and disturbing. Not for underage readers or the weak of stomach

Assuming it's true, then however much the kid got wasn't enough. He has had to live under an assumed name since. NOTE: Go down the column a bit to find the piece about Jacko.

OK, I was going to use this story to illustrate why some lawsuits are good; instead, after reading it, I really think it's a dumb case. I just can't comprehend how the nursery rhyme "Eenie, meenie, minie, moe; pick a seat, we gotta go" is racist, especially when spoken by a young woman who wasn't even close to alive when a similar verse apparently was part of a racist rhyme: "Eenie, meenie, minie, moe; catch a n----- by his toe." I've been alive 42 years, and I've never heard the latter rhyme, despite being raised in Tennessee. I hope the plaintiff's lawyer has got more proof than cited in the FoxNews story.

M. Chase writes:
I work as a part time paralegal for a defense firm after years as a risk manager in a hospital, so I think I have some insights on your discussion. I have met many many attorneys over the years, both Plaintiff and defense.

Because of the years I spent working in a hospital I am well aware of the number of medical errors that happen every day. I knew of many times someone should have been sued and was not. I saw where medical staff members were reluctant to discipline or remove poor performing physicians, who continued to practice.

While at the hospital I was involved in a case with one of the Plaintiff attorneys from hell. When it finally settled, five years after the event, they only one who made out was the attorney. (I know from the hospital's standpoint we would have settled for the same dollar amount four years earlier.)

There is no simple solution to our mal practice "crisis". To think that putting a cap on awards without fixing the underlying issues (insurance companies, physicians, staffing problems, poor reimbursement, to name a few) will fix the problem is ludicrous.

If, after five years, the only one who "made out" was the attorney, the case must not have settled for too much, meaning that the attorney didn't make out too well. And if the hospital would have settled for the same amount four years earlier, why didn't it? The emailer didn't say, but my guess is that the insurance company wouldn't put any authority on the case. Which happens routinely, especially in medical negligence cases.

On a non-lawyer note, Iraq has finally agreed to U-2 flyovers. Ol' Saddam plays a dangerous end game. He's clearly doing just enough to keep casting doubt on the legitimacy of the U.S. going to war against him. The Administration is not biting, however, and continues to beat the drums of disarmament or war.

I swear I don't know where I stand on the war question. Jounalist Joe Klein, in "The Natural," posits that Americans don't much like to go to war unless first attacked. That notion rings true to me. Given the tenuous links between 9/11 and Iraq, we can't exactly say that 9/11 is the reason we're going after him. So, the case for action against Saddam, as made by Secretary of State Powell, is that there is clear evidence that he is covering up his development of weapons of mass destruction. Is this fairly abstract case enough to justify initiating military action against him? I am not in favor of appeasement, such as in the context of the world's acquiescence of Hitler's power grabs in the late 1930s. Does my reluctance to approve of war in Iraq make me an appeaser? And the irony of my reverie is that I remember saying on 9/11/01 with some satisfaction, while the buildings were coming down, that this gave us the green light to go after Saddam.

I fear that W. is pushing so hard on this out of some sense that his dad started it and he's going to finish it. I fear that if we corner this wounded animal [Saddam], he will have no reason NOT to use any weapons of mass destruction he does have, just to survive. Could this exercise in war-making be opening up a pandora's box? Our president -- like it or not -- has threatened to go nuclear if Saddam uses WMD. If that happens, and we use nuclear devices for the first and only time since Nagasaki, could India and Pakistan see that as a green light to go nuclear in their ongoing disputes? Or North and South Korea for that matter. It's scary, and I have no confidence whatsoever that this Administration is actually considering the tangential implications of such potentially devasating actions.

I hope I'm just a worry wart. We'll see....

My friend Glenn the Instapundit [I think we should just shorten it to Glennstapundit] says: "Many of the frivolous cases (e.g., the McDonald's fat case) are really brought on grounds of ideology rather than profit." Which put me in mind of the Paula Jones harassment case against Pres. Clinton. It was funded by the far right wing, and she was placed on salary during the pendency of the case. Anybody remember seeing her driving around in that Mercedes, and hanging out with her "spokespeople?" I gotta remember to tell my clients to stop with those pseky spokespeople....

He also speaks the truth when he says that contingent fees are the best guarantees there are to ensure that a lawyer doesn't run with a poor case. If it ain't gonna pay, there's no reason to play.

Are doctors really leaving their practices? ATLA, with support, says no.
"Bush to Renew Emphasis on Economy" Oh, save us!
I saw a story on the Today show this am about a doctor who left a LARGE medical device inside a patient during surgery. Katie Couric [gosh, she's cute!] was astounded that such items as clamps, scissors and retractors could be missed by the surgeons and/or nurses. Funny -- there's no link to the story on the Today/MSNBC site. On the other hand, you can check out "Handling the Challenges of Stepmotherhood. . . ."
John Grisham disagrees [watch the video of his Today Show interview] with a review of his latest book, "The King of Torts." Interestingly, Matt Lauer misquotes the review when he leaves out of his quote who the book is about, and when he says "parantheses tort lawyers." The full review quote is"John Grisham's new novel is several things -- a great read, a love story, a parable of sorts -- but above all it is a scathing attack on the lawyers who have amassed great wealth by winning class-action lawsuits against the tobacco industry, pharmaceutical companies and other corporate malefactors. These mass tort boys, as Grisham calls them, are presented as shameless, greed-crazed ambulance chasers who enrich themselves off the misery of others and whose only real interest is acquiring ever-larger yachts and ever-younger women. I can't think of a bestselling novelist since Sinclair Lewis who has so relentlessly bludgeoned a particular segment of our society." The book is about mass tort lawyers who handle class action lawsuits, a very small subset of plaintiff's litigators. Apparently that distinction is too fine for the folks over at Today.

Also, Grisham, I think, unintentionally misstated the attorney's fee in mass tort clas actions. I believe, if memory serves, that the fee first is set by the Court, and second is only in the neighborhood of 25%. His references in the interview about taking from 33% to 50% does not apply to the typical -- if any -- class action.

Leah Rudolph has another harrowing story of her jury service, in which she agreed with a verdict for $75,000 in favor of a woman who broke her ankle on the premises of a business during an open house. The jury also found the woman to be 40% comparatively at fault. Net verdict to the plaintiff would therefore be 60% of the gross total, or $45,000. This writer thought that to be too much, and says: "Economic damages are not being disputed, as victims should get recompense for their injuries, based on what they fairly deserve. But, what lawyers continue to omit in this debate, is non-economic damages are basically more than what people deserve and the Constitution does not imply people are entitled to more than they deserve. This aspect has become known as a jackpot lottery. Other states have caps and they work. It is just one approach that has to be addressed before we all loose. And therein lies the true crisis."

I don't see the "jackpot" here, at least. This plaintiff only got $45,000 for a fractured ankle. And that's before attorney's fees and litigation expenses come out of it. Caps wouldn't help the situation; most state's caps and the proposed federal cap apply only to medical negligence cases, and they are higher than the awarded amount anyway. Also, caps don't solve anything other than to arbitrarily limit damages. Would this writer think this way if the plaintiff had been paralyzed from the waist down? Would caps on pain and suffering have been appropriate then? Further, those who seek to limit pain and suffering damages seem to be those who never had a serious injury. What about the lady who was sent home from the ER with a dissecting aortic aneuysm and bled to death in her chest? Or the baby who is profoundly brain damaged, blind, unable to walk or talk and suffers from severe cerebral palsy? Or the little girl who was burned and scarred over 38% of her body because of a defective water heater and has to have surgery every year to break open the scar tissue to allow her to grow? Who are we to say that these people only suffered to the extent of $250,000?

Finally, if this writer disagreed with the verdict, why did she cave in to the "arrogant" jurors who proposed giving more? If she had held her ground, she would have hung the jury. If she thought the other jurors were improperly deliberating on the case, as she suggests in her email, then that's what she SHOULD have done.

Elizabeth Kel Caucci writes:
Regarding your post on Thursday, February the 6th, the IOM study that says 44,000 to 98,000 people each year die from medical errors. That has been debunked by the very same doctor, Troyen Brennen, who did the original research (in only TWO hospitals) and who further noted that patient non-compliance in medication instructions and illegal drug use were included as "medical errors" in the study. Hardly a strong indictment of the medical profession [read: not malpractice]. These twisted extrapolations for the entire nation (from only TWO hospital -did I mention) in this small study were never intended by the authors, as they have repeatedly stated in follow up journal articles. The original study was also not designed to determine any causal relation in the sampled mortality cases by identifying the presence or absence of any medical error by subjective physician chart review.

I am terribly sorry if the truth in any way disturbs your rhetoric. I am even more sorry to think that you probably were aware that the IOM study was never about physician errors and just don't care. However, perhaps your professional ethics compels you to print some sort of retraction or clarification.

Gee, did I get somebody mad? First, I included the link to the underlying media reports in the post to which this writer refers. Second, the writer includes no links to support her assertion. If she sends them, I might just post them. Third, it seems to me that the IOM report is about medical "errors"; take out the categories to which the writer refers and I'll still bet that you get a lot of those "errors." Fourth, "rhetoric?" Please. Fifth, professional ethics don't enter into this Blog, which does not purport to give advice or be the manifestation of legal representation. I included the email because, most of the time, I'm fair-minded. If my previous post was -- at least to some extent -- inaccurate, I'm willing to post reasonable responses. I think the point of the underlying articles is still valid.

Frankly, though, I think you're trying to climb a large mountain if you're trying to say that there isn't any malpractice going on. If you assume that most lawyers are like me, in that they turn down 99% of the cases they hear, and if you further assume that, like me, most of those cases state a claim for medical negligence but that damages are not serious enough to justify the financial risk, that in itself proves that there are a tremendous number of "errors" in medical treatment today.

Kevin Ford asks why we are not paying attention to the "frivolous defense" of valid lawsuits where the insurance paid attorney purposefully plays out the string of needless discovery etc. while all the while billing his client - big insurance company? Good question. Considering that I see cases zealously defended constantly where they should be settled, it's a pervasive and ongoing problem. Too many times, we see the defense lawyer, who gets paid by billing his time, insisting on going through discovery and pretrial procedure, for no other apparent reason than to make sure he makes his money on that particular case. Now, my insurance defense lawyer friends all deny that "churning the file" in this manner occurs in their practices, and I believe them. But there are a lot of others out there who must be churning cases that are going to be settled eventually anyway.
Gary O'Connor has an interesting new Blog up, called Statutory Construction Zone. His goal for the Blog is "that someone who wants to keep up with current federal statutory-construction case law (which statutes are being construed, which arguments judges are accepting or using, etc.) would be able to do so by checking this web site for 5-10 minutes every week or two." Check it out!
William P. Logan writes:
I think that the vast majority of people who
complain about the jury system have never been on a jury and probably
try to get excused whenever they get called. Six years ago (1997) I
was on a jury in an asbestos trial in San Francisco, CA, which is
normally thought of as having liberal (i.e. pro-plaintiff) juries.
Unfortunately for the plaintiffs in this trial, their cases got
defensed. The San Francisco Superior Court consolidates its asbestos
cases into groups based on type of injury and the firm filing the suit,
so there were six different plaintiffs in the one trial. The verdicts
(again, all for the defense) varied from 12-0 to 9-3. In short, we
felt that although some of the plaintiffs had quite serious medical
problems, it was not more probable than not that their problems were
due to their asbestos exposure.

Quite frankly, based on my experience as a trial juror, my respect for
the jury system has increased tremendously from what it was beforehand.

Meanwhile, Dr. Christopher May reports that most of his colleagues would not only like to see trial lawyers put out of business, but "tarred and feathered" as well. Which, of course, shows how difficult it is to have any kond of meaningful discourse on this subject. He says: "We see the whole system as being as random as a lightning bolt and having very little to do with quality of care." At the same time, he denies seeing the arrogance and "God complex" that is observed in many doctors by so many others.

I'm willing to bet that if you asked 10 trial lawyers about their philosophies re: case screening and their relationships with doctors, you would have nine of them say that they are as strict as I am in how they decide which cases to run with. As I have posted before, it's difficult, if not impossible, to remain in business if you pursue the marginal cases regularly. Dr. May's polite but ridiculous overgeneralizations, e.g., "Why sacrifice and study for half your life, only to see your house and everything you own
vanish in a puff of smoke, to reappear as a plaintiff attorney's Learjet?" make me crazy. If my law practice, or the law practice of any lawyer I know, allowed me or them to have a lear jet, then maybe I wouldn't comment. But the truth is that there are a lot more insanely wealthy doctors than there are lawyers. Oh, and by the way, we lawyers have sacrificed and studied half our lives, too. Consider that maybe we're not idiots, and that we operate with ethics and responsibility [we do, you know].

The bottom line is, as stated previously, that the insurance companies are at the bottom of this perceived problem, even to the point of creating the perception of a problem. We keep taking at its word Big Insurance's contention that high verdicts are the cause of the increase in malpractice premiums. I don't believe it, and I have been shown no independent data to support the bald assertion. Why did my firm's health insurance go up over 25% -- the trial lawyers? Big Insurance is scapegoating the trial lawyers as a group, and they are using Big Lie techniques [say it loud and long and hard, and people will eventually believe you] to sell their message. Dr. Goebbels used much the same techniques in the 1930s and 40s. Unfortunately, the doctors are being squeezed into being used as the tools of Big Insurance in its quest for ever-greater profit.