Friday, February 28, 2003

Now, we have an Instapundit and an Antipundit. Antipundit writes:.
Even though I often disagree with his politics and his opinions, I am happy to say that I remain a devoted reader of Glenn "Instapundit" Reynolds. And, one thing that is coloring my perceptions of those bloggers who are Democratic-leaning (do the words "left" and "right" mean anything nowadays?) is the method they use to criticise him. He's demonstrated fairly well that accusing him of "McCarthyism" is nothing more than name-calling - and that it contributes nothing more to reasoned debate than, say, spewing the word "liberal" like it's a racial slur. Yet so many partisan Democratic bloggers quite happily use him as a target for insults that aren't even well thought-out - they just consist of political-hindbrain slurs like "McCarthyite."

My old dad used to say that classifications such as "left," "right," "conservative," and "liberal" were meaningless. Glenn is the personification of this observation. I've known him longer than either of us likes to admit, and he's basically an impossible-to-pigeonhole renaissance man. Mostly, he always has been. Maybe that's why I and those of us who know him just grin and scratch our heads at the world-wide response to Instapundit. We're used to it; he's always been like this. [I like this site!] wonders why bar commissions seem to discriminate against small firm practitioners. The linked article suggests some reasons, but I, in my paranoid ravings, have another reason. Small firm lawyers will get sanctioned more readily than large firm lawyers because small firm lawyers are usually representing plaintiffs in contingency cases. Large firm lawyers are usually corporate or insurance defense outfits. Is this not discrimination against lawyers because they are plaintiff's contingency fee lawyers?

There is a link to a Washinton Post article saying that lawyers from Jones, Day, Reavis & Pogue and Keller & Heckman LLP, two very large firms, actually hacked their way into an opposing expert's website by guessing at, and therefore stealing, the expert's password. Said a lawyer suing the firms for this practice:

I want you to tell me how someone guessing at the password is any different than someone guessing at the combination to a safe [in a bank] or guessing at the combination to a garage door opener to get into someone's house to steal their goods."

Kind of legal espionage going on here, and any lawyer -- or client's -- worst nightmare. This is a serious example of "cheating" in an effort to do anything, fair or unfair, to win your case. As a legal technology expert opines:

"It is a serious breach of ethics, and it is a potential serious violation of criminal law," said Mark D. Rasch, a technology law specialist and senior vice president for Solutionary Inc. of McLean. "It is the electronic equivalent of breaking into someone's office to get documents for discovery."

The worst part of this story -- and the part that dovetails with the theory that this is discrimination against plaintiff's firms -- is that these big defense firms, as a result of their hacking, got the expert's testimony excluded, won the case, and beat the ethics charges placed against them by the expert. Sometimes it just doesn't pay to get out of bed in the morning. has posted support for what I have always known anecdotally: personal injury claimants do better with lawyers than without them:
According to the article:
[Allstate's] campaign material was tailored to make an accident victim feel valued through efforts like its "Customer Service Pledge," which promised quicker, simpler settlements undiminished by attorneys' fees[...] The literature made heavy use of the word "fair," but didn't even hint at what Allstate's own studies reflected -- that, for claims in the $1,500 to $15,000 range, claimants with lawyers got settlements of two to three times more. Actual averages were $3,464 for claimants without lawyers, versus $7,450 for those who were represented, according to 1995 Allstate training manuals[...] In 1998, after serving as president of the Connecticut Trial Lawyers Association, New London's Robert I. Reardon filed the current action, aiming for class certification. White, a Voluntown resident, was offered a maximum of $50,000 by Allstate for auto accident injuries while negotiating unrepresented. Once she hired a lawyer, her claim settled for the $100,000 policy limits. Similarly, plaintiff Thomas Moore was offered $7,000 without a lawyer, and $20,000 once represented.

Even allowing for the average 1/3 contingency fees, the above statistics show that consumers still come out ahead with legal representation against insurance companies. So the next time you find yourself in competition with the insurance company for a client, throw out these stats and see if that does the trick."

That's the reason Allstate -- and other carriers -- want to get you to settle your case before getting a lawyer. I've always said that the adjusters who get a claimant to sign a release for low money before getting a lawyer have a little star pasted on their record. I think I'm kidding on that. I think.

In a follow-up to a post I had on lawyer soliciations, Carolyn Elefant directs us to this site, discussing lawyer solicitation in more depth. There is a link to a Newsday article saying that 6 personal injury lawyers in New York have been charged with criminal enterprise corruption, bribery and other crimes as a result of using "runners" within hospitals to steer clients toward those lawyers. This is the worst cliche associated with personal injury lawyers: you pay a couple of hundred dollars per case to a guy and he goes around to the hospitals to try to sign up clients for you.

I have heard about runners all my career, and I have known lawyers who paid people to go troll for cases. It is a particularly slimy practice and, as indicated, as often as not it will not result in getting the case. It's tacky, disrespectful to the potential client, unethical, and by the way, illegal as hell. Running a case is cheating. As demonstrated by those New York lawyers who may be guests of the state for many years, cheaters never prosper.

Thursday, February 27, 2003

Kentucky: caps won't lower, and could raise, premiums. Duh.
Since Sen. Rick Santorum's wife got a $350,000 verdict in a malpractice case in 1999, he better be against caps, or else he's a hypocrite.
AARP to Tennessee Legislature: Fix Nursing Homes!
Karl Rove invented tort reform! Plus, it looks like the president's senior advisor may have perjured himself:
Rove's claim of responsibility for the tort reform issue is somewhat at odds with a deposition he gave during the tobacco lawsuit. Asked whether he discussed overhauling civil liability law with then-Gov. Bush, he replied: "I can't say that I did. But I can't say that I didn't. I do not recall. I know that tort reform was a significant part of his legislative agenda but it was not my area."

With bozos like this one at the pinnacles of power, my confidence in our government continues to soar....

Here's a very interesting email I got from the Tennessee Trial Lawyers:
Santa Monica, CA - As Illinois physicians strike today over their malpractice rates, a secret e-mail from striking New Jersey doctors offers a rare glimpse at the cynical strategizing behind the scenes among the doctors who staged the walkout.

The leaders of the New Jersey strike announce their intention to "cause confusion and inconvenience," pressure reluctant colleagues "both professionally and economically just as any other 'scab'," divert blame from malpractice insurers, and not reschedule cancelled patient appointments in order to "significantly inconvenience them."

The e-mails were obtained by the Foundation for Taxpayer and Consumer Rights (FTCR), a non-profit, non-partisan organization that has studied the medical malpractice crisis. They are available online, at
"New Jersey physicians have shown their real intention is not to protest insurance premium hikes but to terrorize patients, colleagues and the public into becoming converts to their cause," said Doug Heller, senior consumer advocate with FTCR. "Putting patients at risk for cynical political ends is moral malpractice."

In the e-mails, doctors are advised that when they cancel appointments with patients they:

"SHOULD NOT RESCHEDULE) .We can significantly inconvenience them(which is NOT irresponsible) and direct their anger from this to help our cause. Educate them, have them write letters, make phone calls , write letters to the editor of your local newspaper etc... MOST IMPORTANTLY, our pts must TRULY EXPERIENCE significant delays, inconvenience and INABILITY TO CHOOSE a physician"

The e-mails, which originate from Steven P. Shikiar, MD, FACS, tell doctors that they "must stay on message" when they talk to reporters. According to one of the e-mails, doctors must not "talk about your falling income, rotten HMO's, your busy life, the cost of vacations and cars, your malpractice history. These are irrelevent!" The e-mail also describes the hiring of public relations firms to spin the news.

Another e-mail calls for ostracizing physicians that do not strike through economic pressure, presumably by not offering referrals.

"Any physician who doesn't want to participate shows just how disrespectful he is of his colleagues and of his profession. He should be ostracized by his colleagues both professionally and economically just as any other 'scab'."

They also illustrate that the urgency of the so-called "insurance crisis" appears to be more closely tied to political opportunism and timing than any true malpractice crisis. One e-mail urges doctors to act immediately and not lose the opportunity of the moment:

"1 Month from now we will be at war with Iraq. Perhaps their will be more acts of terrorism perpetrated by maniacs from abroad. The legislature, the press, and the public will not be concerned about our plight and frankly neither will we. The time is now."

FTCR called on New Jersey doctors to immediately call off opportunistic strikes which are harming patients to meet physicians' political goals.

Boy, the medical profession sure is a sacred calling.
UPDATE: Here's a link directly to those emails.

Florida's new Chief Financial Officer says in this piece that rapidly rising malpractice insurance premiums are largely because of insurers' practice of undercharging for coverage in previous years:
"In hindsight, rates probably should have gone up about 10 percent a year over the past seven or eight years, and they didn't,'' Gallagher said. ``And when that doesn't happen and should have, you're left with a very large hole, which means we allowed rates over those years to be lower than they should have and created a crisis at this point.''

Gallagher said other factors contribute to medical malpractice problems, including huge losses in the reinsurance market. Reinsurers insure insurance companies as a safety net against catastrophic losses.


They want caps, but not for themselves: A doctor in South Carolina sued for and received a verdict for over $30 million in a defamation case. Here's the article, which is not available online without a subscription:
A recent $30.25 million verdict in South Carolina demonstrates that the value of intangible injuries -- a doctor's reputation in the case -- can be substantial.

Gregg Meyers, the Charleston, SC, solo, who represented the plaintiff, said that giving jurors a sense of the value of tangible items helps them gain perspective on the true value of a person's professional reputation -- in this case, that of a medical doctor whose ability to practice medicine was severely diminished by defamatory comments made by the manager of the defendant health care center.

He said the key to success in these cases is letting the jury decide the actual dollar amount.

"I've been trying intangible injury cases for a while now," said Meyers.

"Don't ever tell [a jury] what the value of a case is, but give them a sense of what other [tangible] things are worth," he said, using automobiles or works of art as an example.

On Dec., 19, 2002, after a three-day trial and less than a day of deliberations, a Charleston, S.C., jury awarded the plaintiff $30.25 million. The verdict included a quarter-million dollar award for conversion of a patient list by the employer, Trident Medical Center.

The decision may be one of the largest defamation verdicts nationwide, according to Meyers.

M. Dawes Cook of Charleston, S.C., attorney for the defendant, said that post-trial motions have been filed and are pending, but would not comment further on the case.

Office Conflicts

Dr. Bruce Skinner was an internist who went to work for Trident Medical Center in 1998.

After taking more than a year off for personal medical leave, he returned to work, but was reassigned to a different Trident facility in the small town of St. Stephen, where his employer said he would work until construction was completed on a new, larger facility.

Unfortunately for Skinner, he never made it to that facility.

He quickly discovered many problems in the small office, including the physical condition of the building, which he repeatedly insisted Trident address. But the physical condition of the facility was just the tip of the iceberg.

"They wanted him to bill as much as possible to the people he was treating," said Meyers. But Skinner was trying to provide quality care without expensive treatment, and didn't feel comfortable running up the costs of those services.

According to Meyers, his client was not comfortable with the pressure to bill more, particularly in a small town like St. Stephen.

To compound problems, there was a nurse in the office who was "exerting too much control" over patient care, according to Meyers. He said she was
providing treatment beyond the scope allowable to nurses, and Skinner wanted to put a stop to it.

He reported the activity to the office manager. After months of insisting that Trident address the issues that Skinner raised, they finally made the changes.

The squeaky wheel may get the grease, but in this case, the squeaky wheel also loses his job.

Meyers said that about a week after Trident addressed his client's concerns about the facility, the employer fired him by exercising its "not for cause"
termination provision in its employment contract, citing "business reasons relating to the marketplace," according to Meyers. The medical center added
that he was eligible for re-hire inside the organization.

According to Meyers, the office supervisor never had any complaints about Skinner as a doctor, and even gave him a written "personal commitment to help Skinner find a job," although that help never came.

Then the accusations began flying.

Meyers said the office manager accused Skinner of stealing an EKG machine and of purposely plugging up a sink with the intention to flood the medical facility.

"It didn't make any sense at all. [Trident's] theory was that [Skinner] was anxious to move from the office into the new facility, so he sabotaged the building," said Meyers, who was surprised that the company didn't try to "distance themselves" from the office manager at trial.

"Their argument at trial was that the statements [about theft and sabotage] were true. I think they embraced these bad statements in a way that seemed
to be cavalier," said Meyers.

Meyers pointed out to the jury that there is a disconnect between the company's position at trial -- that Skinner had stolen an EKG machine and had sabotaged the building -- and the office manager firing him "without cause" and offering to help him find work in the future.

His Name Is Mud

Meyers said that after his client's dismissal, Skinner was unable to secure another job in the area, and blamed his difficulty on the allegations being spread about him by the office manager both inside and outside Trident.

A doctor testified that he heard the accusations at a group meeting for independent doctors. Meyers said a nurse who knew Skinner professionally for 10-15 years testified that the alleged theft and sabotage would be shockingly out of character.

Skinner testified that Trident's refusal to return calls from reference requests from potential employers compounded the problem. Meyers said his client would have positive interview, potential employers would request references, and then he'd never hear back from them.

This, said Meyers, was evidence to satisfy the "malice" element that must be proven in a successful defamation case.

The Defense

According to Meyers the defense argued that the statements being made about Skinner were true, and trued statements can't be defamatory.

"They had a comment made by Skinner that he was aspiring to transfer to the new facility and reasoned that by stealing [the EKG machine] he would hasten
the transfer," said Meyers, who called the argument "ridiculous" on many levels, including the fact that the new facility wasn't even ready yet.

"Their circumstantial evidence was that he had access and motive, and we pointed out that it was absurd."

Meyers argued to the jury that if you want your employer to transfer you, the last way to get in the employer's good graces is through sabotage and theft.

"Skinner testified that perhaps [the defense] should have asked the cleaning lady [how the sink got plugged] instead of him."

Meyers also said the expert witness for the defense testified that the reason Skinner couldn't find a job was because of his whistle-blower status at Trident, and that was his own fault.

"They argued that there was little causation between Skinner's ability to find a job and what they did."

"But," said Meyers, "the jury saw a doctor who was trying to do the right thing," and, apparently, didn't believe the allegations of theft and sabotage.

"They didn't try to argue that [his] reputation wasn't worth much," said Meyers.

And, good thing, because the jury found that the value of a doctor's reputation held a tremendous value."

Making The Intangible Tangible

Meyers said that giving jurors analogies and comparisons to the value of tangible things in this world gave the ma perspective and visual image from which they might make the intangible tangible.

"I said to the jury, 'if this case was about a truck, you could say that that truck was worth $5,000. And if that truck had a winning racehorse in the back, it might be worth $15 million. [What] if the truck was carrying the Mona Lisa -- even that's easy to value. This truck was carrying the reputation of Dr. Skinner. Rank this kind of thing."

"Certain intangible things about life can be valued," said Meyers.

"I'm glad the jury took this case seriously."

And the same source it's reported that a San Rafael, California jury has returned a $31.7 million verdict for an opthamologist who accused disability insurer UnumProvident Corp. of cutting off his benefits as part of a management scheme to boost profits.

Isn't it nice to see these doctors getting their day and their due in court? Isn't it too bad they want to deny the same rights to all us non-doctors?

In the "that's interesting" department, I just had a call from Edwin Kim at Strata Productions. They are in pre-production of a new movie called "Heavens Fall," about the Scottsboro Boys case. Here's their web site. He says they're looking to raise $4 million or so in financing, that they have raised over half of that amount so far, and are looking for other investors for their syndicate. They have Gary Sinise as one of the leads in the picture. Apparently, this indie production company is a stepchild of Chicago's famous Steppenwolf Theatre, in which Sinise has been active. Here's some more information about the Scottsboro Boys case.

It's not every day that I get to sling the movie lingo. It was fun. He's going to send me one of their investor kits, so I'll post more if there's anything interesting in it. If anyone is interested in investing in this theatrical release project, call Edwin Kim at (847) 864-7415 X 227. Happy moviemaking!

Here's a link, via Instapundit, showcasing Walter Olson, an intellectual leader of the tort reform movement. In my own admittedly biased fashion, here are some thoughts, after reading the profile:
Olson is a senior fellow at the Manhattan Institute, a conservative think tank funded by those entities who stand to benefit from tort limitations;

Olson has never practiced law, and it's unclear from the article whether he even went to law school. It appears from the article that he has gone from one conservative think tank to another, without much contact with the "real world." In my humble opinion, it's hard to criticize philosophies and tactics of trial lawyers if you haven't ever been involved in trial litigation;

The profile says: "Mr. Olson’s vision could be the inspiration for John Grisham’s latest legal thriller 'The King of Torts,' in which obscenely rich trial lawyers fly their private jets in ostentatious loop de loops, landing every now and again to mine an industry for everything it’s worth." See my review of the book, but suffice it to say that the fictional defendants in that book were in fact at fault; they were responsible for the wrongs they were sued for. Please remember that most of we trial lawyers are just trying to make a living. The tort "reformers" always oversimplify when they refer to trial lawyers as if they all were filthy rich and just sit around thinking up ways to screw defendants. It just ain't so.

The piece says: "Surprisingly, lawyers aren’t terribly harsh on Mr. Olson. 'I find my best fans are lawyers because they’re the ones who know most of all how bad things are,' he said. Well, here's one lawyer who's hard on the guy. Things are not that bad!

Olson doesn't much like liability caps [that's good], but does advocate a loser pays rule as a disincentive to file not-well-taken claims. If a case is found by a judge or an appellate court to be frivolous, the court can order the plaintiff to pay expenses, including attorney's fees to the defendant. That's the law now. Given the high expenses of major litigations -- you can spend millions in expenses in a typical tobacco case -- the plaintiffs' bar needs no additional disincentives.

There's a reference to libertarianism in the article. As I understand it, one of the fundamental tenets of libertarians is "the less government the better." If that is the case, then why are all these so-called libertarians supporting major new federal tort limitation legislation that would cause profound damage to our 7th Amendment right to a jury trial?

Sorry -- just me venting. Well, I am venting, but I'm not very sorry.

Hmmm. I guess ABA Journal missed this site when they did a piece about legal blogs. Or maybe they discriminate because I don't belong to the ABA? I'm trying not to feel left out. Link from InstaGod, uh, I mean, Instapundit. I mean, hell, he gets all the good links....
Bernie emails me to dispute RJGator's take on's hatred of lawyers:
I read daily although I rarely comment, and I have to tell you that RJGator is misinformed. Most of the people on the site don't hate all lawyers, they just hate the lawyers who bring outrageous lawsuits. What is suprising to me is how defensive lawyers get, any criticism of lawyers is considered bashing and that's just not true. staff have never said that lawyers do not serve a purpose, so I would hardly call bringing a lawsuit an "epiphany". I think you guys need to grow a little thicker skin ;)

The site does link to a Tech Central Station Column that reads, in part:

The punch line in the McDonald's lawsuit will be if sly attorneys for the plaintiffs can get a judge and Americans in general to give up another bite of liberty to feed the lawyers' purses. The hope here is that people are not so dumb after all, and will send this case to a permanent rest, where it belongs.

Sounds like lawyer bashing to me. And, let's keep in mind that the plaintiffs in that McDonalds case are exercising their liberties. Those "sly" plaintiff's lawyers are exercising their liberties. It's the tort reformers who want to circumscribe our liberties. Let's please remember that.

My parking lot attendant told me about this case yesterday, but I couldn't find a link. So thanks to the emailer who sent me the link. He says, as commentary:
This case reminds me of the classic case from tort's class where the property owner rigs a gun to shoot at a burglar when he comes through the door. There were a number of us in my torts class who said "too bad, so sad, shouldn't have been breaking into someone else's house to steal their stuff." It's been more than seven years since that class, and I still feel basically the same way when I read this story. I hope the verdict gets thrown out on appeal.

19 years ago, we had the same discussion in my torts class. I can see both sides of the argument. I can understand the policy consideration that one cannot defend with deadly force a non-deadly instrusion. However, the idiot shouldn't have been trying to break in in the first place. Note that the jury in this case tried to split the baby: "jurors placed 50 percent of the blame for the death on Harris, but assigned the bar's owners 40 percent and placed 10 percent on the property's owner."

In sum, a verdict consistent with well-established legal concepts, though nonetheless still controversial.

Maybe she didn't die in vain. Jésica Santillán, the 17 year old, who died last weekend at Duke Medical Center, may become a focal point of the debate over malpractice caps, according to the New York Times. It's a shame, of course, that it takes this type of tragedy to viscerally illustrate the the stakes in the debate over whether to limit damages.

Said one Republican lobbyist:

The entire effort hit a brick wall this weekend," the lobbyist said. "This was a very heavy lift under the absolute positive best of circumstances, and the circumstances just took a turn for the worse.

And, apparently even die-hard Repubs are starting to head for the hills:

But another senior Republican, Senator Orrin G. Hatch of Utah, said any legislation to cap malpractice awards would have to have an exception for egregious cases.

"I question whether anything would pass that did not have some way of solving the hard cases," said Mr. Hatch, who is the chairman of the Senate Judiciary Committee and is working on a draft of a Senate bill.

What Sen. Hatch seems to miss is the fact that every medical malpractice case is "the hard case." I haven't seen one yet where the defense did not fight the case as if it were the last lawsuit on Earth.


Mary Alexander, the association's president, said it would be extremely difficult for the Santilláns to sue under a $250,000 cap, because it costs nearly that much to bring a case.

"Her tragedy shows what this arbitrary, one-size-fits-all cap means," Ms. Alexander said.

Read the whole article to see that Big Insurance and the doctors still don't -- or won't -- get it. Example: Tom Delay, the House Majority Leader, said, "Obviously, the tragedy in North Carolina was just horrific and unfortunate....It doesn't change anything."

Tell that to Jessica's parents.

UPDATE: Here's a story from FoxNews on the subject.

Wednesday, February 26, 2003

There's an old joke that legislation is like sausage: the process of making it is really gross. Here's a link to Georga Senate Bill 133, which, among many other things, establishes a $250,000 cap on pain and suffering damages in med mal cases, increases the standards for imposition of punitive damages, increases the difficulty of qualifying expert witnesses in medical malpractice cases, and best of all, establishes fairly extensive immunity for emergency room treatment and follow up. As indicated by the Georgia Bar Association, the bill "incorporates the Georgia Chamber of Commerce initiatives . . . ."

This bill follows an ongoing trend by tort limiters: don't prohibit causes of action, simply pass hard-to-understand legislation that makes it so hard to prove a case that no one will ever be able to do it. Eventually lawyers will stop taking the cases, because it's too difficult to win them. Thus the deck becomes stacked ever more heavily against plaintiffs.

Tuesday, February 25, 2003's Atlanta correspondent, RJGatorEsq., passed on some information about a website called People who frequent the site ("LDotters") can post news articles there, and can attach comments to the articles. The site is run by Lucianne Goldberg, of Linda Tripp fame.

It seems that Lucianne and the LDotters hate lawyers with a passion so furious it is almost sick. Every lawyer is a greedybloodsuckingambulancechasingbottomfeeder who should be disbarredandtakenoutandhorsewhippedandshot. And all lawsuits are frivolousridiculousmeritlessandshouldbethrownout. If a person dies in an accident, the death is not important: what is important is their hysterical fear that somewhere, some attorney is going to make some money.

On Tuesday, the staff and an LDotter seemingly experienced an epiphany. The staff posted a plea for information, apparently to help an LDotter bring a lawsuit against a doctor. The text of the post [click the link above and scroll down] reads:

LDotter In Need Department. The staff here at would like you to visit the following web site: If anyone has had any experience with this doctor (he has treated patients nationwide) we would appreciate your getting in touch with us at our Email address . All shall be explained in due course."

Review of the site indicates that Keyes is a plastic/reconstructive surgeon. I guess someone's upset with his work, huh.

The editorial staff at Instalawyer welcomes LDotters into the real world--the world where medical malpractice does happen, cases have merit, and attorneys are a valued part of the judicial system. Also, congratulations to Lucianne, the staff, and the LDotters on their epiphany, however belated. Also, thanks to our newest roving blogospondent, RJGatorEsq., for his ace investigative work in unearthing this link, and even helping draft my post!

Here's an interesting Flash presentation about the Israeli 1981 destruction of Iraq's soon to be operational nuclear reactor. Included is a very interesting 1975 photo of Saddam with Jacques Chirac and others. Is there any wonder that Chirac seems so partial to Saddam?

Monday, February 24, 2003

Ernie the Attorney linked to my Grisham review, too. I couldn't agree with him more about his conclusion: "Of course, I'd be happy if I could write stuff like that and convince people to pay me lots of money for it."

Heh. Heh.

Sean Harding has put me on his list of blogs he likes. Thanks. I'll return the favor if I can ever find the time to figure out how to do it [sigh]....
Jinn of Quality and Risk links to my review of Grisham's new book. I can't tell if he agrees with me or not.... LIKES me. He/She Really LIKES me!
Douglas Vatter is a self-professed "insurance guy" who agrees that pain and suffering caps are wrong. He also maintains that carriers are losing money, and that this latest tort limitation effort is all about minimizing the unpredictability in insurance payouts. He says that the lawyers' [and the clients, I presume] best bet is to find a stabilizing solution, or else they will get cut out of or cut back in the equation.

If you look a couple of posts down, you will find the link to a Business Week op-ed, making a convincing case that the unpredictability in malpractice payouts is chimerical. If the amounts of settlements are relatively stable, i.e., growing at the same rate as medical costs, and if there is no explosion of new filings [and there isn't], then where's the unpredictability? Douglas V. thinks the data points to a huge number of pending claims that are over 10 years old. If the cases are over 10 years old, at least in my experience, then they aren't very good cases, or they are closed without payment and not notated correctly. Either way, there is not likely to be a big surge in payouts due to these ancient matters.

Yes, Virginia, there are slimy lawyers out there. This Sun-Times piece describes the apparently improper solicitations made by some personal injury lawyers in the wake of the E2/Epitome tragedy. Of course, I don't know Illinois' ethical rules relative to direct solicitation; in Tennessee, at least until recently, we are not permitted to directly solicit a potential client within 30 days of an incident. Maybe the ethical rules are different in Chi-Town.

However, what's sauce for the goose should be sauce for the gander. Insurance companies and their representatives should not be allowed to solicit these same bereaved, either, without giving the bereaved a real chance to consult counsel. It's a common tactic for carriers to rush to get to potential claimants before a lawyer gets involved, with the purpose of getting them to settle for low money without having had the chance to consult with someone who wants to represent their interests. While I deplore slimy solicitations by some plaintiffs' lawyers, I also deplore the same kind of slimy tactics used by the carriers. We shouldn't forget about that. And bottom line, those plaintiffs' lawyers will work to protect the bereaved, while the carriers will work to screw the breaved, if they can.

But, Brian King directs me to an article from Business Week, a publication that certainly would be considered favorable to the pro-business tort reform side of the debate. Pertinently:
MYTH 1: Premiums have risen more slowly in states with caps on pain-and-suffering awards.

MYTH 2: Runaway jury awards are forcing insurers to raise rates.

MYTH 3: The number of mega-awards is growing.

MYTH 4: Courts are clogged with an exploding number of claims.

Conclusion: On this and many other key points, proponents of caps simply aren't coming up with the facts to make their case. Instead, they're relying on scare stories--always a bad starting point for making serious policy decisions.

Read the whole story -- it cogently discusses the situation.

You know, it's hard to blog with 2 kids and a law practice hanging over my head....