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....

Geeksblog.com 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....

86 dead and 187 injured when the band Great White fired up its pyrotechnics and set the club on fire. I saw some video on one of the news channels that showed the fire spreading within the club, as it was happening. People were watching it like, thinking it was part of the show.

Fire Department officials said that the crowd stampeded the front entrance and didn't use the fire exits. Were they lit properly? This reminds me of the stories I used to hear, about the old movie houses and the mad rushes when there were fires inside the darkened theatres. That led to tight regulations on fire exits, signing and the like. This tragedy indicates that we could -- and maybe should -- be heading in that direction for clubs. That is, if such regulations weren't already in place and ignored.

UPDATE:: Here's the Windows Media link to the TV station that caught the fire on video just as it was developing. Let the video stram to about 2:24 through the clip to see it as it happened.

More regarding Rich Hailey's post involving analysis of National Practitioner Data Bank information. This fact sheet from Americans for Insurance Reform also seems to debunk the contention that the average malpractice awards are going higher:

New insurance industry data and analysis, released today, shows that the average medical malpractice insurance payout, or closed claim, has been only $28,524 over the last decade. Payouts in 2001 follow the same low pattern. This figure includes all jury verdicts, settlements and other costs used by insurers to fight claims in court.

Moreover, medical malpractice insurers are paying nothing in 77 percent of all claims filed; in the 23 percent of cases where insurers pay anything, the average claim is only $107,587. According to the Harvard Medical Practice Study, only one in eight malpractice victims ever files a claim for compensation.

The analysis, conducted for Americans for Insurance Reform (AIR) by actuary J. Robert Hunter, Director of Insurance for the Consumer Federation of America, examined insurance data through 2001, the most recent year available from the National Association of Insurance Commissioners and A.M. Best and Co.

Here's a chart of the raw data used to come to this startling conclusion. If true, can we push for a minimum threshold for malpractice awards?

And yes, I know that this group is an anti-tort reform group. However, who else is going to be wading through this kind of dry data?

Ruch Hailey writes:

By the way, when I was still on blogspot, I started composing in MS Word to avoid just the situation you described. It also gave me access to spell checking, a necessity in my case. I writ on the fly, and raely have time to second check my work, so it's nice to have a spell checker working for me.

thnks fir the advoce.

UPDATE: Sorry. That's Rich Hailey. Everyhting else looks OK, right?

Lawsuit in the making? DEA a little too cowboy-esque? Excessive force leading to unnecessary death? You decide. Courtesy of Instapundit, that major media god.

Miracle in the Making? Here's CNN's story about the teenager who got a heart-lung transplant of the wrong blood type. Seems the doctors and nurses at Duke screwed up big time. But, like being down 20 late in the fourth quarter, they might be about to make a miraculous comeback. I hope the girl does, too.

I can't resist. The surgeon said, "I assumed that after providing Jesica's name to the organ procurement organization ... that the organs were compatible." You know, when you ASSUME something, you make an ASS out of U and ME. Never more true than here. The hospital says that it has now "implemented safeguards to prevent such errors in the future." That's reassuring. You mean, there were no such safeguards before?

Who wants to cap damages as to this poor girl?

Brendan Maher emails:

I am an Illinois attorney who has checked in on your blog a few times since seeing it mentioned on Howard Bashman's "How Appealing." Although my practice tends to be more defense oriented, our firm does handle the occasional plaintiffs' case. Personally, I tend to believe that people are too litigious and I do favor some of the "tort reform" proposals floating around. I am not, however, a "tort reform" zealot, and I generally don't think the Feds should be in the tort reform business at all. I am passing along this article because I view the plaintiffs' lawyers' filing suit within 32 hours of a tragedy is the type of behavior that gives us all a bad name. There has literally been no time for a reasonable investigation and nothing more than theories as to what actually happened. While it is certainly possible that the nightclub and/or its hired security firm were negligent, filing suit so soon (and on behalf of minimally injured parties) makes the plaintiffs' lawyers look like bloodsuckers (in my humble opinion). I'd be interested in your take.

Here's the article he referred to. There are perhaps two reasons why suit was filed so quickly. First, there may have been a question of making sure that the defendants did not disperse their assets prior to suit being filed. Now, with litigation pending, hiding assets may be much more difficult. Second, if it's a class action that has been filed, as per the article, then the lawyers who filed it want their action to be certified. Often, the first one filed, or the one with the most plaintiffs attached to it, will be certified. It seems slimy in the present case, but there may be justifiable reasons for filing quickly. However, the rush to the courthouse kind of reminds me of Washington, D.C.'s John Coale, who was on a plane to Bhopal within seconds [just kidding] of the Union Carbide disaster that killed thousands.

More interesting here is the city's culpability. If the business should have been closed pursuant to court order last July, and if the City knew or should have known the club was still operating in violation of the court order, does the city have liability? Better yet, could someone -- say the victoms or their families -- seek to have the court hold the city in contempt for having failed to follow the court order? Interesting questions.

Nukevets thought my review of the new Grisham book was interesting, and I agree with him when he posits that readers flock to Grisham, believing that they are getting a realistic portrayal of lawyers. That was one of the reasons I reviewed the book. As I said in the review, the book is just a big ole lawyer joke. Unfortunately, people seem to believe lawyer jokes are true reflections of their subjects.

He also says:

I would not doubt that you can find some mistake in just about any medical record you choose to audit. The question is – did that mistake do anything to result in a bad outcome? If the answer to that question is yes, and deadly mistakes are probably made every day – then there should be some recourse open to the person/family. If the answer is no, then it needs to be recognized that MD’s are human, and subject to the same frailties as the rest of us. It seems that the default has become to audit a medical record, find a mistake and, no matter how trivial the error, immediately jump to the conclusion that ”we found an mistake in the medical record, and the patient died – therefore………..” .

Nukevets has correctly stated the standard: did the mistake cause the bad outcome. I fear he has bought into propaganda when he believes that trivial recording errors result in big malpractice cases. Believe me, that's not enough. Now, I have had cases where there was negligence, and there were also fabricated or destroyed medical records, that by implication supported our claims of negligence. But, without expert testimony -- that will resonate with a jury -- that there has been a deviation from the medical standard of care, you just don't have a case.

An emailer writes:

I am impressed with your site, and the arguments you make for limiting tort reform. However, I did not see anything that relates to a category of tort law that has been highly prone to abuse by certain lawyers, specifically lawsuits against companies that experience rapid drops in stock price. As a veteran of the biotech industry, I can assure you that public companies are always walking on eggshells when it comes to talking about the future. Many firms have been sued, automatically it seems to me, with onerous discovery proceedings and lengthy, expensive legal battles over pre-trial rulings. This tends to occur whenever there is a precipitous drop in the share price - for any reason. The plaintiffs -- generally a class of investors who stand to gain very little on a personal basis -- are represented by what I can only describe as a group of predatory law firms who extort settlements from management teams regardless of any wrongdoing, as an alternative to long, draining fights that distract from running a business. Now there are cases where management teams are guilty of withholding negative information or providing overly optimistic guidance about the future, (think Enron, WorldCom, Adelphia, etc...) and they deserve all the legal trouble they get. But this kind of lawsuit is frequently abused in the biotech business, with most firms in a pre-revenue stage, subject to external forces (FDA, FTC, nature, etc...) beyond their control. Stock prices can fall for reasons that have nothing to do with the firm in question, and even the best management team cannot foresee all eventualities. Do you have any views regarding this type of legal abuse?

Wow. Great email, and on a subject I unfortunately know nothing about. Speaking generally, I -- like everyone else -- abhor the truly frivolous case, especially where the motive for the litigation is simply to extort money because the opportunity exists. These types of shareholder actions, seeking damages for management negligence, as the emailer concedes, have had some validity regarding companies like Enron or Worldcom. It's a risk in any publicly traded company, and I suppose a cost of doing business generally. Again generally, I don't remember the last defendant who thought being sued was justified; no one wants the stress and the financial pressure of defending a lawsuit.

The only thought I have regarding truly frivolous litigations against companies is for the business owners to compel their lawyers to seek an early dismissal of the case. I have a firiend who spent hundreds of thousands of dollars defending a case against my friend's company. He told me about the case, and it was complete nonsense. I recommended that he have his lawyers file a motion for summary judgment, which would force the plaintiffs to show the evidence they had in support of their claim; i.e., to put up or shut up. He could never get the lawyers to file that motion, and his company eventually went out of business. I strongly felt, based on what my friend told me, that the lawyers were simply running up their hourly bills. I still think I was right on that.

Rich Hailey at Shots Across the Bow took a look at the National Practitioner Data Bank information, and concludes as follows:

This information presents a good argument for capping awards, rather than the other way around, as claimed by Public Citizen's fact sheet. First, the number of claims is growing; second the amount awarded per claim is growing at three times the rate of inflation; third, there is a strong correlation between the increase in malpractice claims and the increase in health insurance premiums; and fourth, the data shows that the awards are heavily skewed to the high end, indicating an inequitable distribution of award monies. By capping malpractice awards at a reasonable level, this inequity can be addressed.

First, maybe the number of claims is growing because the level of care is decreasing, i.e., more medical negligence, leading to more claims. Second, maybe I'm dense, but what does the amount per claim have to do with the rate of inflation? The amount of any particular claim has to do with the type of negligence and the severity of damages as a result thereof. I'm not convinced that statistic has much value. Third, caps don't affect payments for medical expenses in malpractice cases. They only cover pain and suffering. On the other hand, if Big Insurance is successful in capping pain and suffering, there's no reason it shouldn't try to cap other elements of damages, like medical expenses and loss of income/earning capacity. Fourth, that awards are skewed toward the high end means only that the cases that are usually pursued more often than not have high value, which dovetails with what I have been saying. Most lawyers cannot afford to take malpractice cases that have low or marginal value.

Example: back in 1989, my brother had a ruptured appendix, as a result of a failure to diagnose on the part of the doctor he had seen. The doctor did no tests, and was clearly negligent. Brother was in the hospital 10 days, had an NG tube snaked up his nose and down his throat for most of that time, lost 30 pounds [OK, he needed to do that], had to go home with an open incision that had to have medicated gauzed removed and re-inserted within the incision several times a day [quite painful]. Eventually, he made a full recovery. No lawyer would take the case. Why? Even though he had about $10,000 in meds as a result of the failure to diagnose, and had much pain and suffering for a month or so, the max value of a case like that is about $50,000. Given that the defendant would have forced us to spend $10-30,000 in expenses, we very well may have lost money on the case. THAT'S why the cases skew high; there just aren't many low ones, because they end up not being litigated or tried.

This thoughtful post and analysis argues in favor of not paying too much attention to statistics , which still are very much subject to being misconstrued.

Marian Booker emails:

my real beef is Grisham's writing style, in particular the use of the word "eased". He eased into a chair, he eased across the street, he eased into the phone booth, he eased out of the car, he .... GAD! Get the guy a thesaurus, and make sure the word "eased" is in his auto-correct file in his word processor. I can't even read one of his books because that word begins to jolt me after a while. Guess I'll save some time on this one.

Easy, now.

I hate computers. Or Blogger. Or NT Server. Aw, hell, I hate 'em all. I had a lengthy rejoinder to an emailer and my blogger connection died just as I posted it. That was hours ago. Now I've finally got the Blogger edit screen again, without that long post. AUGGHH!!
UPDATE: No Watermelons Allowed commiserates with me: "Don't go thinking that that's the last time Blogger will screw you. You might prefer composing in some other app, then cutting and pasting into it. If I hadn't started that I'd probably be looking for a lawyer practicing criminal law." So now, I'm copying my posts into the clipboard before I try to post them. Oh well; you get what you pay for?

I'm pro-choice, but that doesn't stop me from linking to this piece by the Link Letter, a right wing anti-abortion group based in Houston, urging defeat of tort reform, on the claim that it is pro-choice legislation. The enemy of my enemy is my friend...?

"We wouldn’t tell you or anyone that the reason to pass tort reform would be to reduce insurance rates." Oh? Isn't that why all these doctors are threatening to walk out? Do the doctors understand that they are destroying their credibility, and when it's all said and done, Big Insurance will still increase their premiums?

Or maybe there's something going on here that Big Insurance isn't broadcasting too loudly. As previously blogged, first they knock the hole in the dike with malpractice limitations, then they blow the dike away with limitations in all kinds of negligence cases. That's what Big Insurance is after, you know. Injured victims of negligence cost them money; they want those victims -- and we trial lawyers -- neutralized. If that sounds sinister, it's meant to, because it is sinister. Not to mention demonstrative of Big Insurance's incredible cynicism in using the doctors as such pawns in its incredibly high stakes game.

Here's an interesting fact sheet put together by Public Citizen, saying basically that you should be careful of which statistics you pay attention to. Their conclusion: the Federal Government's National Practitioner Data Bank, which reports 100% of the verdicts and settlements, reflects the median medical malpractice payment by a physician to a patient rose 35 percent from 1997 to 2001, from $100,000 to $135,000.

A far cry from the hounds baying about "jackpot juries." Thanks to Brian King in Salt Lake City for the link.

Dr. Instalawyer's Book Review:

Ironically, attorney and author John Grisham hates lawyers. He's certainly made a fortune over the years eviscerating his highly fictional lawyers. One sees this enmity in "The Firm," where the naive young lawyer finds himself working for the mob, in "The Runaway Jury," where the lawyers on both sides of a tobacco case can't wait to buy a verdict from a juror, and in his latest, "The King of Torts," where the lousy lawyers du jour are those in the mass torts field.

Grisham's idea of proper lawyerly behavior, based on his books, seems to be that any self-respecting lawyer (1) will never settle and always try his case, regardless of the situation and the client's best interest, (2) will find a way either to lose his fee or never collect it at all, and then (3) will find a way to flee the jurisdiction, vowing never to practice law again. It happened in "The Firm," "The Rainmaker," "The Runaway Jury" [more or less], and probably others that I can't think of right now. "The King of Torts" lives up to this standard Grisham template.

Grisham's latest questionable morality tale revolves around young J. Clay Carter II [you can tell Grisham doesn't like the lawyer when he has the character use an initial on the first name, by the way]. Carter is in a dead end public defender job, and would like a better paying position, when he is approached, almost literally in the dark of night, by the devil [well, metaphorically, at least]. Carter is offered the faustian deal: sell his soul for millions. All he's got to do is solicit clients, lie to them, misrepresent his interest, and engage in other highly questionable behavior.

With little hesitation, and with less thought about strategy, tactics and ethics, he grabs at the money. In short order, he collects a ton of money under less than proper circumstances, and leaps at the chance to use improperly obtained inside information to file a gigantic class action lawsuit against a pharmaceutical manufacturer. Oh, and incidentally, he gets to violate about a half dozen federal securities laws in personal stock buys while he's at it.

He makes even more millions from the class action, ignores his class action representative clients, files an ill-considered class action suit, spends millions on advertising and improper client solicitation, buys a $45 million jet, obscenely overpays his new employees, gets sued for legal malpractice, gets beat up because of a class action he foolishly refuses to settle, crashes and burns, files for bankruptcy protection, and -- wait for it -- takes the girl and the private jet and leaves the country, vowing never to practice law again.

Yawn.

Actually, only a half yawn is deserved here. Grisham has next to no character development. Our [anti-] hero swings back and forth between smart and conscientious, and dumb and dumber. Like most Grisham characters, he has little or no relationship with family members, and while the book professes that he loves the female interest, it's hard to tell by he way he acts. Redemption, according to Grisham, apparently is gotten only by getting the crap physically kicked out of you. The only thing Grisham does well is tell the story. That's always been his strength -- the mechanics of relating the story. Substance is something different.

What gets me more than anything is Grisham's horrible -- and largely unwarranted -- stereotyping of plaintiffs' lawyers. There is not one decent, effective, well-meaning lawyer in this book.

On the one hand, we have the mass tort "vultures," a term he uses on multiple occasions. Grisham clearly wants to have these guys taken out and shot. In his world, they care nothing for the clients, are interested only in the fees, have no intention of trying their cases [and couldn't if they had to, it's implied], and are looking to soak the target defendants simply because they can and without due regard to fairness.

On the other hand, we have the paragon of lawyerly virtue: the small practitioner who always tries his cases, never settles, and hasn't lost a case in 20 odd years. He lectures Clay on how he's ruining lawsuits for good ole boys like him, and then kicks our hero out of his office unceremoniously. Now, the irony here is that our mass tort vulture makes a recovery for his thousands of clients, while the good ole boy turns down a settlement offer of miilions and loses before a jury. Apparently, in Grisham's world view, it's better to fight the good fight and lose, one client at a time, than it is to get some [even if not enough] compensation for many thousands. I don't know about you, but if I were a client in the former category, I'd be a lot madder than if I were in the latter category.

Ultiimately, Grisham always writes about selling out, and then copping out. Each of his books dealing with personal injury lawyers has included these elements. Even "The Rainmaker." In that one, recent law school grad Rudy Baylor, because he needs a job, goes to work at a personal injury firm, where he's forced to go to the hospital and troll for unsuspecting injury victims. In 16 years at the bar, I have never done that, although I guess there are some hustlers who do resort to such scummy tactics. Ultimately, after proving he can try a good case and after putting his defendant out of business, he just hangs it up and runs away anyway. Same story, different names.

In "The King of Torts," Clay Carter sells his soul to the devil in a big way, and then, when he has lost it all, he bugs out. He doesn't try to be a better lawyer; he doesn't use the skills he develops to help people; he just surrenders his license and flees, essentially unscathed. Just like all Grisham's other lawyer characters. Not, however, like any lawyer I know.

I hate lawyer jokes; I don't tell them and don't put up with them when I'm around, because people believe them! "The King of Torts" is just a 372 page lawyer joke, and the punch line is getting stale. Enjoy the carnage as fiction if you like, but don't take it seriously.

God, I hate it when I'm right: In the wake of the ABA endorsement of legislation to limit asbestos related lawsuits, guess what gets filed in the Senate? Yep. A bill to limit asbestos related lawsuits. As an example of the intellectual dishonesty of the proponents, Senate Budget Chairman and bill sponsor Don Nickles said

There is no question asbestos litigation is a serious deterrent to economic growth.

Now, asbestos litigation has been going on for 20 years. I didn't see much problem with economic growth during the Clinton Administration. Now, when it's convenient, it's a deterrent to growth. So, in the spirit of tort limitation that's trying to take the nation by storm, here comes yet another bill that would slam the courthouse doors in the faces of people injured by asbestos exposure. Way to serve the people, Don!

Pay no attention to that man behind the curtain: This story, from Naples Florida, essentially has Jeb Bush and the other tort reformers saying, "It's not just caps, look at all these other great ideas!" Some of them ar OK, but the presence of caps on liability taints the whole thing. I previously reported here on this commission, which according to the link looks to be a tort reformer tool, anyway.

Why is it that East Tennessee, whch I love, can be the scene of some ridiculous and hurtful exercises? A poor little girl in Union County was getting beaten up, sent to the principal's office, and generally discriminated against, because she declined to participate in school hours field trips to church revivals, refused to play Mary in a nativity play, and the like. Glenn Reynolds has a thoughtful column on the subject, referencing the Knoxville News-Sentinel article on the subject.

Being Jewish, I have a particular empathy on issues such as this one. The Constitutional Establishment Clause within the First Amendment was specifically intended to protect the rights of the minority of people; that's why the state shall support no establishment of a particular religious orientation. By the way, that's also why it's irrelevant that 85% polled [or some such statistic] support prayer in public schools. Of course the majority want their religion; that's why we have the Bill or Rights -- to protect those such as this little girl.

When the entire school -- except this girl -- leaves --during school, mind you -- to go to a church revival, that's tantamount to endorsement and establishment of that particular religious position. When you're in the minority in a peer-conscious environment such as school, it's hard enough to get through the day, without this type of not-so-subtle proselytizing. What's so wrong with leaving religion to the home, and leaving education free of religious inundation?

I have always believed that East Tennesseeans, at least, simply do not comprehend how painful it is to subject children to this type of pressure. If they ever do understand it, i think no one would object to putting a stop to such shameful practices. If not, then I think that school should be let out and students be sent to services for Rosh Hashanah, Yom Kipper, Ramadan, Kwanzaa, and every other religious event in the book. What's fair and right for one is fair and right for all.

The Oklahoma State Medical Association wants tort reform, but won't allow independent review of its books:

The medical association, which owns its insurance company, Physicians Liability Insurance Co., would not submit to The Oklahoman details of malpractice settlements for an independent analysis.

As usual, their argument is based on unsupported anecdotes. Since there is no link between premiums and malpractice awards, we shouldn't be surprised.

And, from the Bizarro Department comes this story about how Colorado wants to junk its automobile no-fault law in favor of one that allows for tort liability. Used to be that no-fault was the catch-word for tort reformers in the early 80s who wanted to limit peoples' rights to sue in automobile negligence cases. Now no-fault is too expensive, yada yada yada....

I think what's going on here is that they're trying to sneak into the system a managed care aspect, where those injured in a car wreck might end up having to see and be treated by doctors specified by the insurance company. Bad idea. Given the propensity for doctors to cave in to who's paying them, i.e., the insurance company, the only way to keep it all honest is to allow the patient to treat with the doctor of her choice.

Who benefits from tort "reform?" Doctors and Big Insurance, says the Washington Post:

Democrats point to the aggressive lobbying by doctors and insurance companies as proof of who benefits under the plan.

The American Medical Association, which represents doctors, has made the Bush plan its top priority for this congressional session and is flying doctors to Washington to make its case.

The AMA gave $1.6 million to GOP candidates for the 2002 elections. A different group of doctors and health care providers is underwriting a national advertising campaign to highlight the need for federal caps on lawsuits. The campaign is managed from the lobbying office of former Republican National Committee chairman Haley Barbour, a Bush fundraiser.

Physicians, who would likely see their insurance premiums drop by several thousands of dollars each year under Bush's plan, have invested heavily in the president and his party. Over the past two years, they have given $17.5 million, or two-thirds of their contributions, to the Republican Party, according to an analysis by the nonpartisan Center for Responsive Politics.

With Majority Leader Bill Frist (R-Tenn.), a physician, running the Senate, with Bush running for reelection and with medical malpractice legislation running into trouble, Republican fundraisers expect doctors to play an even bigger role in the 2004 elections. AMA president-elect Donald J. Palmisano warned in an interview that Democrats "will lose support" from doctors in upcoming elections if they sink the Bush plan.

At the same time, physician-owned insurance companies, which provide most of the nation's medical malpractice coverage, are stepping up their own lobbying on behalf of the Bush plan. Even the nation's big-name insurance companies that quit providing malpractice coverage years ago are jumping into the fight because the Bush plan would make the malpractice market potentially lucrative again. It also would lay the groundwork for broader limits on lawsuits.

The medical malpractice fight is "a very good leading edge, if you will, of the desperate need we have in this country for meaningful tort reforms," said Dave Golden of the National Association of Independent Insurers.

Any of you with sharp eyes catch that last paragraph? "Broader limits on lawsuits." Yet more evidence that medical malpractice is just the first fusillade in a broad effort to limit lawsuits.

Big Insurance wants to rule the world [sigh]....

The Florida nursing home industry is going to war in the Legislature, alleging that nursing home neglect lawsuits are unwarranted. This, despite the following:

Research in 2001 by the South Florida Sun-Sentinel and the Orlando Sentinel found that the bulk of nursing home lawsuits have merit and that alleged wrongdoing can be serious. The newspapers also found that few punitive damage awards are in excess of $1 million.

I have handled some nursing home neglect cases. They are truly awful cases of, often times, letting people literally rot in their beds. The industry is, by and large, poorly run, especially in light of specific federal and state regulations spelling out what constitutes nursing home abuse. Based on what I have seen first hand, the Florida operators have much to answer for, and are not deserving of legal protections at the cost of their usually helpless nursing home residents.

As a lawyer, you make a good doctor....In this story, a West Virginia OB/GYN is suing the West Virginia Trial Lawyers Association, claiming that trade organization, which does not represent clients, is at fault for so-called frivolous lawsuits. She is proceeding pro se, meaning that she couldn't find a lawyer to represent her. Question: isn't her lawsuit frivolous? Isn't this more [bad] propaganda?

If we limit or eliminate punitive damages, the nazis win!

The more you read about the tort reform debate, the more you realize that it's very much an exercise of "do something, anything. Like this piece, which opens with "Legislation aimed at curbing a crippling rise in medical malpractice insurance premium rates has hit the floor of the state Capitol." Except we've already established in earlier posts that limiting the rights of negligence victims won't curb the crippling rise in premiums. In an interesting waffle, a doctor who helps set rates for an insurance company for doctors in his specialty has testified that it will take at least two years to see whether tort reform legislation will cause rates to drop. Why? He says, "It would take that long to see if the new laws would decrease the number of frivolous lawsuits, and to make sure that the law survives any legal challenges."

Except, that doesn't make sense. First, caps on damages have survived legal challenges for decades. Second, imposition of the proposed limitations ought to result in an immediate drop, unless they have no data linking the proposed legislation to decreases in premiums. As I've said, they don't. Smoke and mirrors.

I posted last week that limitations on damages in medical malpractice cases might be just the opening salvo in a continuing effort to limit all types of negligence cases. Big Business is making no secret that that goal is exactly where they're heading. The relevant quote:

Those three powerhouses [DaimlerChrysler Corp., The Home Depot Inc. and Georgia-Pacific Corp.] and others, including BellSouth Corp. (NYSE: BLS), are participating because they also worry about potential lawsuits filed against them by customers — people who are unhappy with their products, have slipped and fallen on company property or have any other reason to sue, officials at the Georgia Chamber said.

the piece even throws in a passing reference to the Liebeck v. McDonald's coffee case. This damaging admission ties in with what I have been saying lately, and it sets the parameters of the debate. This stakes here are for nothing less than the invidual's overall right to sue any business and recover damages. The "tort reformers" will not stop if they are successful with malpractice; they will just move on to the next so-called problem area, until the average joe/jill will not be able to (1) find a lawyer to take his/her case, and (2) won't have much of a cause of action anyway. The stakes are very high, indeed.

The greed factor belongs to Big Insurance and Big Business in this debate. The current legislative and propaganda campaigns are but the latest in their ongoing fight to increase their profits at the cost of the victims of negligence.

UPDATE: Poultry Giants Want Sympathy Too.

The Washington Post says:

Congress should avoid writing the rule itself and instead condition federal health care money to the states on their adoption of reforms conforming to broad federal guidance. The goal should be to protect victims of doctor error as well as victims of unfair lawsuits. Some states might combine liability caps with, for example, greater disclosure of doctors' and hospitals' malpractice records. Others might consider more radical steps. The current bill would not encourage such innovation but would straitjacket the states with a simplistic rule.

I still fail to understand how a $250,000 cap [or any cap, based on historical precedent] does anything to protect victims of doctor error. It's just smoke and mirrors.

The Jacksonville, Arkansas Patriot reports that, although the Arkansas House passed a tort reform bill, the Senate Judiciary Committee has "many concerns" with the bill. Interestingly, the story does not detail any of the concerns.

UPDATE: This post doesn't detail any of the questions or concerns about the bill, either. What's going on here?

Yet another UPDATE: In this story of committee action, the following colloquoy took place:

Sen. Irma Hunter Brown, D-Little Rock, asked them if the Legislature was trying to take away the decision-making authority of juries by abolishing the liability clause.

“Are we saying we no longer trust the courts to make the proper decisions?” Brown asked.

Sen. Jim Luker, D-Little Rock, vice chair of the committee, followed Brown’s line of questioning and asked Harriman why a change was needed in the law. “Why is it all of sudden unfair when it has been fair for 50 years?” asked Luker, the only attorney on the panel.

The answers: Yes, the tort reformers are trying to take away the decision-making authority from the courts and juries. And, it's NOT all of a sudden unfair; Big Insurance just wants us to think it is.

The Jacksonville, Arkansas Patriot reports that, although the Arkansas House passed a tort reform bill, the Senate Judiciary Committee has "many concerns" with the bill. Interestingly, the story does not detail any of the concerns.

The Jacksonville, Arkansas Patriot reports that, although the Arkansas House passed a tort reform bill, the Senate Judiciary Committee has "many concerns" with the bill. Interestingly, the story does not detail any of the concerns.

Here's a story from the doctor side of things about the proposed federal legislation. Not surprisingly, the quote I like is from ATLA:

"There is absolutely no reason for the most seriously injured and most vulnerable patients to be penalized to subsidize the insurance industry," ATLA spokesman Carlton Carl said of the HEALTH Act. "The legislation would have no impact on malpractice insurance rates paid by doctors."

I'm shameless, but consistent.

Regarding the anti-war protests in Knoxville last Saturday, Instapundit didn't see too many protesters. I went into the mall in front of which the protest was based about 11:30 am, and saw many more than in his linked photo. Maybe 150 or so. I didn't see 500 people.

I just keep on making friends! I just love it when people overgeneralize anything, including my missives on this page. Just like any other line of work, there are bad lawyers who file stupid cases. Nope, can't deny it. My only point is that the relatively few instances of "frivolous lawsuits" are blown way out of proportion by those who would see the rights of the little guy be circumscribed. And in an aside to Nukevets, I don't know how to turn on my comments capability, even if I wanted to. If I sound hostile, it's only because I'm way behind in trying to get the message out, which, generally speaking is (1) It's Big Insurance and (2) don't forget the little guy.

Instapundit reports that supporters of war against Iraq are taking a lot of hate mail for their position. Unfortunately, that kind of hateful spewing gives those against the war -- and anyone on the left -- a bad reputation. I remain ambivalent about getting our people possibly killed and potentially opening up a pandora's box with military action against Iraq. But I respect the opinions of those who favor it, just as I respect those who oppose it.

My beef is with the Administration's incredibly botched effort over the last, what, 8 or 9 months, to manage its PR campaign. Frankly, I think people are tired with the constant back and forth with no discernable action by the U.S. If we're going to do it, let's do it, already. There's been so much sabre-rattling, my ears hurt. I can live with a green light decision on Iraq; I have problems with the interminable waiting. At this point, no one believes (1) that Saddam will voluntarily disarm or quit, or that (2) the UN will take effective action. It's long past time to fish or cut bait.

Having said that, I remain convinced that this Administration, with a president as big a figurehead as Reagan, has no idea how to handle our domestic economy-related problems. Sure, I'm upset that Bush won in 2000; I am sorry that so many of those who feel as I do resort to the same tactics that the Repubs used in 1993 and 1997 [i.e., "Don't Blame Me, I Voted for Bush"]. Regardless of what's happened since 9/11/01, this Administration has to take responsibility for erasing our surpluses and returning us to the bad old days of incredible deficit spending. It's only fair; if the economy turns around, they get to take credit for it, just as the Clinton Administration did.

Just my 2 cents. Let's play nice with the other kids, OK?

No Watermelons Allowed doesn't like me much. Let's see if greedy [:)] li'l me can form a response.

"Of course he can't speak for the whole dirty business, although if you read it long enough you'd think that trial lawyers were the only friends you'll ever have. That might be true for him and some others, but not for the likes of the creeps shaking down tobacco and asbestos companies and who have now set their boundlessly greedy eyes upon fast food."

Well, I don't think it's dirty little business, and I suspect that my clients don't think that way, either. Apparently, Mr. Watermelon doesn't need a lawyer just now. If he ever does, he will find out that trial lawyers like me are the only friends he will ever have, at least in the context of his case. As to tobacco and asbestos cases, he's got it way wrong if he thinks that lawyers like me are "shaking down" those industries. Believe me, Big Tobacco and Asbestos have fought tooth and nail, spending millions of dollars and decades worth of time against any kind of plaintiff recovery. Take a look at the destroyed, fabricated and out and out false documents that have been uncovered in the various tobacco cases and then decide who's shaking whom down. Anyone with a memory will remember not too long ago, when tobacco companies won all these cases. It's only been in the last few years that plaintiffs have prevailed in any of the tobacco cases. And, as to "boundlessly greedy," I think that's an overstatement of immense proportions. Look, everybody wants to make a living, and some lawyers want to become wealthy. There's nothing wrong with that, especially if the defendants have done wrong and are deserving of getting hit with a verdict.

"it would seem to me to be only equitable to insist that claims against the manufacturers be limited for each individual, if only to make sure that there is enough to compensate every aggrieved party."

Claims are limited, by the evidence, the efforts of defense counsel, and the reduced verdicts by judges and appellate courts. Mr. Watermelon has an underlying assumption here that any large verdict is unjustifiable, which is a false assumption. He also seems to think that a lot of defendants are put out of business by large verdicts; it happens rarely.

There is also criticism of attorney's fees. First, our fees are subject to ethical constraints; they must be reasonable. An excessive fee may result in ethical sanctions. Second, our fees are reasonable, especially in light of the extraordinary financial and time risk we take in prosecuting our cases for nothing, until or unless we make a recovery. Plaintiff's lawyers are the best deal in town: a client gets a [hopefully[ first rate lawyer, and has to pay nothing, unless there is a recovery, at which point the client has to pay a percentage of what the client didn't have in the first place, except for the efforts of that lawyer who took a chance on the client and the case. Third, no one ever seems to moan about the defense lawyers, some of whom charge $500 per hour and more. I could do that, but no regular person could ever afford such rates.

Mr. Watermelon takes issue with a study I linked to saying that tort limitations do not lower insurance rates. Apparently, because that study was commissioned by a consumer advocacy group, it is invalid. Why should I give more credence to studies by tort reform groups which are beholden to and run by Big Insurance and big business concerns? Not coincidentally, Mr. Watermelon failed to include links to studies that came different conclusions.

"And let's not lose sight of the fact that Mr. Weinstein is not contending with insurance companies - he's opposing their lawyers. Are the lawyers on the corporate side doing something unethical in the course of doing their jobs for the insurance companies? If so, then let the legal profession police itself - we'll see if it does as well as, say, the medical profession. Ha - when was the last time you heard of a lawyer besides Bill Clinton getting disciplined, or any lawyer being hit for big malpractice damages?"

Well, I am contending with insurance companies. At least in theory, those insurance defense lawyers are hired by the insurance company to represent the defendant, who is not the insurance company. As for the legal profession policing itself, we do it all the time, a lot more aggressively than the doctors. Here's the Tennessee Bar Assoiciation link that lists the disciplinary violations recently in Tennessee.

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.

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.

TomPaine.com 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.

Yep.

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 Instalawyer.com. So, for those of you who like to type as little as possible, www.instalawyer.com should now take you directly here! Also, the blog has now become Instalawyer.com. Thanks for tuning in!

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.

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 WashingtonPost.com 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.