Friday, February 21, 2003

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?

Thursday, February 20, 2003

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.

Wednesday, February 19, 2003

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?

Tuesday, February 18, 2003

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.


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.

Monday, February 17, 2003

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.