Friday, July 8, 2011

Well What Do 'Ya Know...



Yesterday I watched (via On Demand) the HBO documentary, "Hot Coffee". If you have On Demand, I absolutely urge you to watch it. If you don't have On Demand, go to the show's website and check the upcoming schedule. It will air several more times between now and July 28th. Finally, if you don't have HBO, order the show from your cable provider and I will personally pay the fee.

The show is about "tort reform" and revolves around three cases, two of which I have already put up blog posts on. The first is the celebrated "McDonald's Coffee" case, and pretty much mirrors my post from a couple of weeks ago. Some added information which I found just plain shocking:

The show features graphic images of Ms Liebeck's injuries, and they are a great deal more gruesome than I had imagined. I actually had to divert my eyes from the screen. Ironically, this segment featured several "man on the street" interviews about the case. When asked, no one was familiar with the real facts, but everyone considered the McDonald's case to be a prime example of the frivolous law suit. Then, when shown a picture of Ms Liebeck's injuries, everyone instantly recoiled, and immediately admitted they were probably wrong. There's a reason for this:

An intentionally distorted version of the McDonald's Coffee case was repeatedly used by several groups, including the U.S. Chamber of Commerce and American Tort Reform Association (ATRA) to urge "tort reform", first, in the U.S. Congress, and second, in state legislatures across the country when the Federal effort failed.

Steve, here's the point. When Americans suffer harm which may constitute a tort, they have the right to sue the offender in court for compensation and damages. Often, the offender is a major corporation which can bring to bear millions of dollars of legal resources to the court room. When you arbitrarily limit the amount a jury can award to a plaintiff, you are also limiting the amount of legal resources the plaintiff can obtain to argue his or her case - since we all know a great many of the most significant cases are handled on a contingency basis.

Steve, really, do the math.

The rest of the show examines the political forces behind the tort reform movement, the actual consequences of tort reform and the constitutional implications of tort reform. Its every bit as absorbing and enlightening as the first segment. I'm not going to do a re-hash of the show here (you really need to watch it yourself), but a few points:

"Tort reform" has come to mean nothing more than legislation which limits the amounts and kinds of awards which jurys can award to the winners of lawsuits. And remember, in such cases the amount of the award is determined by 12 Americans who sat through the trial and heard all the evidence. When it comes to health care, there is ample evidence to indicate that in those states where tort reform has been enacted, health care costs have continued to rise at the same, or even steeper rates (as they do in Texas) than as in states where tort reform has not been enacted. In other words, in the merciless crucible of real life, tort reform does precisely nothing to bring down health care costs! And yet, despite all evidence to the contrary, tort reform is one of the centerpieces of health care reform as posited by the GOP.

Why would a political party back a measure to bring down health care costs, when in fact that measure has been demonstrated to have no mitigating effect on health care costs? Give me a minute here...

A while back I read a nice piece in the Chicago Sun Times by Roger Ebert (the well known movie critic) entitled "The One Percenters". For some reason, the article seemed to tie together a number of disparate issues for me - many of which we have been talking about on this blog - but I couldn't put my finger on why. Then it came to me. From the article:

"What puzzles me is why there isn't more indignation. The Tea Party is the most indignant domestic political movement since Norman Thomas's Socialist Party, but its wrath is turned in the wrong direction. It favors policies that are favorable to corporations and unfavorable to individuals. Its opposition to Obamacare is a textbook example. Insurance companies and the health care industry finance a "populist" movement that is manipulated to oppose its own interests. The billionaire Koch brothers payroll right wing front organizations that oppose labor unions and financial reform. The patriots wave their flags and don't realize they're being duped." (my emphasis)

Perhaps our system of justice has become antiquated and unwieldy, and should be carefully and openly reviewed for areas in which it can be streamlined and made more efficient - all of course within the framework of the Constitution. But "tort reform" constitutes no such thing. It is in fact nothing more than a cynical means by which corporations can limit an ordinary citizen's access to justice, and thereby increase profits.

Steve, don't you think its a uniquely American principle that "the little guy" has as much right to justice as the wealthiest corporation? Why wouldn't that principle be enshrined, uncomprimised, in our justice system? How can it be a good thing that the informed judgement of 12 citizens on a jury should be altered by arbitrary limitations? Do you think jury's which arrive at these sorts of awards are under some kind of trance, or magic spell, which renders them incapable of deciding which awards are fair and which are not?

One last point. There's a clear and obvious connection between the Republican Party and the Right to Life movement. I couldn't help but think of this connection as I watched the second case which was reviewed in "Hot Coffee". In this case, twins were born to a couple. One of the twins was perfectly normal and the other was severely brain damaged. As it turns out, this condition was absolutely preventable, had the couple's doctor provided the right pre-natal care and the hospital performed the delivery according to well established procedure. This resulted in one of those "frivolous lawsuits" which Republicans are always talking about. Yet the couple won the case and the jury (again, of 12 American citizens) awarded total compensation of 5.9 million dollars.

Yet, in accordance with Nebraska law (a "tort reformed" state), the judge was constrained to limit the total award to 1.6 million. Think about this for a moment. This couple's child is going to require intensive, costly care for the rest of his life, and 1.6 million would not pay much more than a small fraction of the cost. Not only that, but from that award the couple had to deduct their legal expenses, including attorney fees - which left them much less. So, in due course, now that the child has gotten older and the money has long since run out, the boy's care is now being paid for by Medicaid. And how incredibly ironic that is! The very same citizens of Nebraska, who elected the legislators who passed the laws, are now themselves paying for this child's care, instead of the parties who caused this tragic situation to occur in the first place! How fair is that?

But ever so much more important and ironic Steve, Nebraska is one of the states which has become a flash point in the national debate on abortion. In the event, you might just say Nebraskans, by a recognizable majority, would like to see laws passed which protect the rights of the unborn. Some of these laws have even called for restrictions which ultimately criminalize abortion providers under certain circumstances - and there is no doubt the Right to Life movement would like to see abortion criminalized altogether.

Do I have to draw you a picture here? If a person should be outraged, on moral grounds, by abortion, why wouldn't that same person be outraged by the harm done to this child (while unborn) by medical malpractice? Why wouldn't the same persons support laws which not only penalize, but criminalize medical malpractice of the sort which results in a brain damaged child? Why wouldn't they be calling for accountability from the doctors and the hospital which caused that harm, with the same ferocity they brought against George Tiller?


P.S., I'd be remiss if I didn't point out some fallacies of logic and common sense in a few of your comments on this subject.

First, to characterize a subset of trial lawyers as "ambulance chasers" is both unfair and illogical. Certainly, we know from first hand experience that many firms solicit, sheerly for financial reward, citizens who may have been victims of negligence, malpractice or outright fraud. Yet, this is precisely the way free enterprise is supposed to function in American society. A business sees a need, develops a product to fit that need, and either profits or loses according to the success or failure of the product. You might as well call an "opportunist" anyone who comes up with and risks investment in any product. Remember, having obtained a client, a lawyer or law firm must then invest real money and effort in building a case - with absolutely no certainty of being compensated for that investment.

Second, the "loser pays" idea is a canard. It originates from the popular misconception that frivolous lawsuits are easy to file and often cost a great deal more to defend against than simply settling, without any admission of wrong doing, at the outset. Yet, while it is true almost any lawsuit, regardless of merit, is easy to file, the overwhelming majority of those which are clearly frivolous are easily, and at no great cost, dismissed before they even reach trial. Thus, the system has built-in safeguards against meritless lawsuits. "Loser pays" is therefore only going to affect the initial decisions by a law firm as to how much money it would be willing to invest in building a case.

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