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.