The Tortellini

Fighting contracts with contracts?

Via the TortsProf Blog...OB/GYNs in New Jersey are forcing patients to sign a contract agreeing to give up their rights to a jury trial, caps on noneconomic damages, and any possible punitive damages as a condition of treatment. The state of Utah actually passed a law in 2003 that allowed hospitals to deny care (other than emergency treatment) to anyone who refused to sign a waiver agreeing to submit any potential medical malpractice claim to binding arbitration. The measure proved so unpopular that it was eventually repealed.

I think New Jersey women who forced to sign the contracts (forced being the operative word, since many of them might not have any other options) might want to bring a contract of their own. They should only agree to sign the doc's contract if he or she will sign an agreement promising not to commit malpractice or otherwise injure the patient or to sue her should she fall behind paying her bills. (Doctors sue their patients far more often than their patients sue them.) Then, the patients should also demand that the doctors disclose their malpractice and disciplinary history, any claims payouts, and the rate at which they perform c-sections and episiotomies. And maybe there should be a clause in this fantasy contract requiring the doctors to actually see their patients at the time their appointment starts. That last one, I have no doubt, would be the deal killer.

Ohio court to show its stripes tomorrow

Big day tomorrow at the Ohio Supreme Court. The Ohio court, which in 1999 invalidated a tort reform bill passed by the state legislature, will once again consider virtually the same law in Arbino v. Johnson & Johnson. This time, though, the court is all Republican and all pro-tort reform, as most of its newest members were elected with hundreds of thousands of dollars in insurance company contributions. Any guess how this one is likely to turn out?

Jane Genova will be blogging live from the oral arguments tomorrow at Law and More.

OSHA: nice people, but when you really need help, call a lawyer

Yesterday's New York Times story on the lap dogs at OSHA is yet another reminder of why lawsuits are a necessary, if last ditch attempt, to keep companies at least marginally concerned about the health and safety of their workers. Note the part where companies applaud OSHA for loosening the restrictions for "handling explosives."...

Trial laywers on the offensive, still a little off the mark

Over the past year, the nation's trial lawyers have reorganized themselves, with new leadership drawn from professional PR quarters, and a new focus-grouped moniker--all, one suspects, at great cost. The changes are evident in the group's newly prolific (and occasionally shrill) press releases, which reflect the lawyers' desire to go on the offensive against attacks on the civil justice system. From what I've seen so far, I'm not sure the lawyers are getting their money's worth. Their communications strategy still seems like the product of people who are a little tone deaf.

It's such an odd phenomenon. Trial lawyers, who are unparalleled in their ability to connect with average people who sit in jury boxes, are among the most ham-handed professionals when it comes to PR. (Recall attorney Mark Lanier's comment that he'd "be lucky to get 10 percent" of a $26 million verdict in a Texas Vioxx case.) Even the stuff they've paid PR geniuses to concoct reflects some critical misunderstanding of public perception.

A few years ago, I saw consultant Ed Lazarus unveil a host of talking points and sound bites for the group's "Seventh Amendment" project that were all phrased around preserving the "right to a jury trial." No one in the room seemed to notice that the anti-tort reform slogans sounded like they were describing criminal trials, not civil ones. The trial lawyers' message problems are still evident today. Witness yesterday's press release.

In criticizing the U.S. Chamber of Commerce's newly-issued ranking of state legal climates , AAJ offered up its corollary, a "top 10" list of the worst places to get injured. In theory, this could be a clever and newsworthy item. Instead, AAJ issued a catalog of the limits of legal remedies in various states, with language like this:

Alabama law limits restitution for every injury or death caused by the government to what’s available under workers comp. If a local governmental entity is held responsible, no matter how great the loss, restitution is limited to $100,000 per person for injury or death, or  300,000 if more than one person is injured or killed in the same incident – no matter how many people were affected.

I suspect this kind of thing isn't likely to outrage anyone but trial lawyers. That's because for most Americans, $100,000 is a shit-load of money. The median household income in the U.S. is $46,000. In 2001, half of all American workers under 70 had $2,000 or less in a retirement account. So laws that limit damages to six figures (or seven, in some cases on the list), aren't going to strike many people as especially unfair. Maybe the lawyers need to find a better focus group....

Suffer the Little Children

Speaking of Mississippi...On Sunday the New York Times ran a story about the state's big jump in infant mortality rates, the first after years of progress. The story directly implicates Gov. Haley Barbour, who campaigned on a pledge to cut Medicaid. Once elected, he did exactly that, dropping 54,000 people off the rolls. Not surprisingly, a good number of those people were pregnant women who now aren't getting prenatal care, and their babies are dying at a frightening rate.

The story didn't mention that Barbour had also campaigned on a major tort reform platform and that he signed a bill in 2004 capping noneconomic damage awards in medical malpractice lawsuits. Doctors and Republicans had lobbied for the bill with the dubious claim that it would expand access to health care across the state and notably, would keep ob/gyns delivering babies in underserved areas. The Times story is yet more evidence that the tort system has scant little to do with pregnant women's ability to see a doctor. Of course, Gov. Barbour probably knew that....

Mississippi Just Can't Get a Break

I'm starting to think that West Virginia and Mississippi will essentially have to abolish their entire civil jury system before the U.S. Chamber of Commerce ever elevates them in their ridiculous rankings of state legal climates. The latest is out today, and while I'd rather just ignore these meaningless reports, the rankings did make me wonder what it would take to get Mississippi up from its perpetual spot on the bottom of the list. I mean, the state has passed all sorts of tort reform in recent years. It's got a tobacco lobbyists as a governor, for crying out loud. It's state supreme court was bought and paid for by the Chamber. How much more corporate-friendly can it get?

John Edwards costly coif

Presidential candidate John Edwards is certainly taking a beating in the press for employing the services of high-priced hair and make up stylists. But Edwards is hardly the only straight male presidential  candidate to spend some money on his looks and bill his campaign for it.

A few years ago, I wrote this story about George W. Bush's presidential campaign, which was apparently (and illegally) using money Bush had raised for his gubernatorial races in Texas to finance parts of his 2000 run for the White House. Among other interesting things, Texas campaign finance records showed that the governor's campaign committee had paid $275 to Glenda Facemire, the head make-up artist for the TV show Austin City Limits. When I called her in 2003, she told me she made up both George and Laura throughout the 2000 campaign.

Facemire's rates are comparable to what Edwards reportedly paid for his pre-TV primping in Iowa and New Hampshire, but maybe it's just more manly to have someone from Austin City Limits blushing your cheeks than the gals at the Pink Sapphire...

Junk Science that wouldn't fly even on CSI

The always thoughtful Peter Nordberg has an interesting post this week about a Minnesota supreme court case involving the testimony of a medical examiner who claimed that he could tell that multiple perps had stabbed someone just by looking at the wound. As proof, he wielded a ruler and worked up a sweat stabbing a mannequin to show how much work it would take for one person to inflict the wounds in question. Naturally, the court allowed the testimony to stand, though with some comments about the dubious nature of the ME's conclusions. It's always amazing to me to read about this kind of stuff.

Tort reformers have been griping for years about "junk science" in the courtroom, but these days you'd never see something this bad in a serious civil lawsuit. Criminal cases, though, seem to be rife with them. The tort reform lobby doesn't seem too worried, however. The American Legislative Exchange Council, a tobacco-industry funded "free-market" think tank, is pushing "model legislation" in state legislatures around the country to combat "junk science." But a close look at their "junk science" agenda indicates that criminal cases aren't even on the list. Instead, the legislation is targeted as science dealing with global warming and other environmental issues in public school textbooks (i.e. global warming is just a theory); scientists who have the nerve to show evidence of repetitive stress injuries in workers; and limits on product liability suits over dangerous pharmaceutical products. Those poor schmucks sent to prison in Minnesota on the basis of the coroner's ruler demonstration are pretty much out of luck...

A Man of Principle, and not just on TV?

Former GOP senator and "Law and Order" star Fred Thompson takes to the blogosphere this week to defend his anti-tort reform votes.

His articulate response to Friday's National Review article, "Thompson's Tort Trouble," is a bit like a voice in the wilderness. Thompson is the lone Republican these days who actually seems to understand what Federalism is, and his blog piece criticizes some of his fellow conservatives for invoking it only when it suits their political needs. If this is the real Fred Thompson, I suspect he promises to be a pretty serious presidential candidate--and not just because he plays a good guy on TV..

Nice book mention

Palm Beach Post columnist Tom Blackburn has taken up the cause of the beleaguered civil justice system in his last two Monday columns, and kindly cites my book. Thanks Tom!

Really, it's the lawyers that are the problem...

Gosh, here's another reason to get rid of lawsuits against nursing homes....If the federal government won't penalize nursing homes that routinely abuse and mistreat their patients, why should private lawyers get a whack at them? The new study on the feds abysmal oversight of the nursing home industry should give anyone with aging relatives a chill.

Fred Thompson: An old fashioned Republican?

Conservatives really want to love former senator Fred Thompson as a viable alternative to the less than ideal GOP presidential contenders Rudy Giuliani (the philandering pro-choice choice), John McCain (the no-longer-straight-talking pro-war candidate), and Mitt "I shot a squirrel once" Romney (the Mormon-good-hair candidate). But they're apparently hung up on his refusal to drink the Kool-Aid on tort reform. His main offense? Having refused to support caps on fees for the lawyers who successfully sued the tobacco industry in the mid-1990s. The National Review airs the gripes here...

Chamber newspaper makes some news, with a subpoena

The U.S. Chamber of Commerce's newest legal newspaper, the Southeast Texas Record, got off to a rather auspicious start: with a subpoena. The Chamber secretly started the chain of newspapers a few years back in Madison County, Illinois, to help bolster its assault on the civil justice system. The ownership was eventually revealed, but the papers have continued to thrive, with the latest entry in Beaumont arriving this month.

The new paper has already made news after its editor and a reporter had a run-in with local plaintiffs' attorney Brent Coon, who just happens to think the Chamber is the root of all evil and who happened to be in the local courthouse picking a jury for an asbestos trial when the Record employees were allegedly giving potential jurors copies of the paper. Given that the paper was full of stories bashing trial lawyers and alleging fraud in mass tort cases, Coon went to the judge and accused the pair of jury tampering. Depositions are scheduled for Thursday...

Is Willie Gary Worth $11,000 an hour?

I imagine that Lester Brickman is having a heyday with this one...And trial lawyers wonder why they have a PR problem?

Health care without lawsuits: a scary proposition

Every time I hear a group like Common Good argue that medicine would get safer if there were fewer lawsuits, I really want to cringe, because it's long been true that some of the most protected health care institutions are often some of the worst in this country. The classic example has always been the military health care system, where injured military people don't have the right to sue the same way civilians do. Law prof Jonathan Turley today highlights some of the gory casualties of that lawsuit-free environment in a USA Today column. A sampling of the cases of military malpractice that won't see the inside of a courtroom:

*Lt. Cmdr. Walter Hardin spent 11 months with red lesions from his legs to his torso that a doctor classified as eczema. It was correctly diagnosed as cancer shortly before he died.

*Sailor Dawn Lambert had to have a fallopian tube removed, but military surgeons left five sponges and a plastic marking device in her abdomen. They remained there for months until resulting complications forced a second surgery to remove her other fallopian tube, leaving her infertile. She was given $66 monthly in disability pay.

*Linda Branch lost her husband while he was serving in the Air Force after he was turned away twice by a military hospital that told him his intense stomach pains was nothing more than stomach flu. He died of a bowel obstruction.

Grim stuff indeed...

Union members for tort reform?

I've often wondered why unions weren't more involved in tort reform legislation, given that it often has such adverse effects on injured workers. As it turns out, at least one big union has been involved--in trying to get tort reform passed! The SF Weekly yesterday told the story of Andy Stern, head of the giant service workers' union SEIU, and a secret deal he cut with nursing home operators in California to help them win legal immunity for killing, maiming or otherwise negligently injuring elderly patients. It's not a pretty picture of the often revered union boss. California consumer activist Jamie Court has posted all the incriminating documents here...

Passing the Bible but not the Bar...

Great observations from Kevin Drum at the Washington Monthly on a little-noted angle of the U.S. attorney scandals, better known as "Purgegate." Who knew that the Bush administration was larding up the civil rights department at Justice with inexperienced graduates of Pat Robertson's Regent University? The Boston Globe article Drum links to notes that in 1999, the year former Justice official Monica Gooding graduated, 60 percent of the graduating class failed the bar on the first try...

Playground Bullies continued..

Interesting debate going on in the comments coming off my earlier post about the overblown hysteria surrounding playground litigation. A poster suggests that the skate park in his town shut down after a lawsuit filed by parents of a kid injured while trying to do a handstand on his skateboard.

First, I'd be interested to see whether this was really the basis of the lawsuit. If so, it's totally baseless and the town is way overreacting. But here's my other reaction: isn't this is what insurance is for? Maybe I'm just naive, but I thought that municipalities had insurance to pay for legitimate claims and also defense costs as a way of KEEPING THINGS OPEN. (Oh, and for the record, at least in D.C., defense by city lawyers really is something of a bargain, as most make less than $70,000 a year. Of course, they lose all the time, which probably makes them more expensive than their salaries suggest, but still...)

I really think that a lot of these alleged crises are the result of insurance company shenanigans. We see this a lot in media law, where newspapers have libel insurance so that they can be protected from the costs of legitimate lawsuits, but also so that they can take some calculated risks in running legitimate and serious and true stories that need to be told, often about people who are highly litigious.But lately, libel insurers have been putting the kibosh on stories that are not libelous just because the subject might file a baseless lawsuit, even though the insurance premiums that the paper has paid more than cover the defense costs.

I'm not just a conspiracy theorist in this regard. It's standard practice in the insurance industry, as any D.C. car owner can attest. I can't tell you how many times I've heard this story: Your car gets broken into by a homeless person or sideswiped on a city street. You file a claim with your insurer to fix the minor damage, and they promptly cancel your policy. I suspect that something like this is at work with these threats of playground and skateboard park closings. While I certainly believe that municipal officials wildly overreact to threats of lawsuits, I suspect that they are often reacting more to unethical threats from insurance companies to either jack up premiums to exorbitant rates or to cancel their policies all together...

Playground bullies

Ugh, another one of those "lawsuits are killing playgrounds" stories in the New York Times Tuesday...

All of these stories hew to a typical formula: Wise elders bemoan that kids are getting lazy/fat/fearful/depressed/stressed out because lawsuits have deprived them of the tall slides/monkey bars/other dangerous equipment of old, from which to take risks and exercise their growing muscles. All such stories, including the one in the Times, use the author's own sepia-toned childhood memories of "unstructured free time" as a benchmark for measuring the new "nanny state" and its efforts to protect children from injury.

Every time I read one of these, I have to think that the authors haven't spent much time on playgrounds lately, because the rare new playground equipment going into the lucky few places that can afford it, is really, really cool--way cooler than anything I ever played on as a kid, and it's far from boring. Right now, my local city playground is about to install a rock-climbing wall that's high enough to give the geezer parents in our neighborhood heart palpitations.

Apparently, though, the folks at Common Good, the tort reform group that is the genesis for much of the "dumbed down playground" news coverage, think turning your knees into hamburger every time you go out to play is a character-building exercise. They think that our litigious culture has given kids a "bubble-wrapped" existence that doesn't subject them to enough risk. If they don't break a few bones falling off monkey bars, Common Good argues, they won't grow up to be risk-taking "entrepreneurs" (or maybe insurance defense lawyers, in the case of Common Good's former executive director Franklin Stone, whose bubble-wrapped quote appeared in the Times).

Really, though, these death of the playground stories miss the big picture. Besides the fact that there isn't exactly a big parent constituency lobbying for more dangerous play structures, drive around any suburban gated community and you'll see all that's missing at the playground: a swing set in every yard, a Moonbounce in every basement. The biggest threat to the modern playground is not the lawsuit, but the lack of investment in public parks and public schools.

I wish that lawsuits were as effective at directing municipal behavior as Common Good's luminaries believe. If they were, the D.C. parks and rec department might clean up the broken glass and condoms off our playground in a more timely fashion. In some areas of the city, the only way to get city workers to a playground is to report the presence of a corpse in the sandbox. Kids in our city face plenty of risks when they venture on to the playground. Unfortunately, they're not the sort of risks that can be remedied in a courthouse. 

I Must Tell the King that the Sky is Falling!

My old boss, Washington Monthly founder Charles Peters, is famous for long ago identifying a clever ploy used by bureaucrats to fend off budget cuts. He observed that, for instance, whenever Congress threatened to cut the budget of the National Park Service, the agency would come before Congress and lament it would be forced to close the Washington Monument. Of course, the situation was never so dire, but no good legislator could risk incurring the wrath of the millions of home-state tourists who would be shut out of the legendary federal attraction, so the budget would be restored.

Some "fear of lawsuit" stories strike me as falling into a similar vein. Take this one, from Nebraska, where legislators have been considering legislation to change the state's public recreational liability statute. Last month, the town of Norfolk announced that it would be canceling its annual "Big Bang Boom" fireworks show because it claimed it couldn't afford the insurance to cover the event. The local business association has also threatened to cancel the annual Christmas tree lighting and even downtown trick-or-treating events as well unless the state legislature offers them some relief from onerous liability requirements.

There's nothing like sicing disappointed ghosts and goblins on state legislators to move legislation, but you'll have to forgive me if I find these threats a little dubious....