There’s a song in the rock musical Hair called "Easy to Be Hard," and it goes like this:
How can people be so heartless
How can people be so cruel
Easy to be hard
Easy to be cold
These lyrics have been running around my head since reading
the two-part series from the nonprofit Wisconsin Center for Investigative
Journalism about the impact of Wisconsin’s new
nursing home “tort reform” law. And when
I say “impact,” I’m specifically talking about current and future nursing home
residents who are abused and neglected.
(Pay close attention, Baby Boomers.)
Here is the series’ summary:
Families’ abilities to hold potentially negligent nursing
facilities accountable have been diminished by a recent change in state law
that bars records of abuse and neglect from use in the courts, the Wisconsin
Center for Investigative Journalism has found. The Center’s investigation also
shows that some long-term care facilities are failing to report deaths and
injuries, as required by law.
Not that we’re surprised. Under the leadership Governor Scott Walker
and with the express assistance of that nasty gang-‘o-corporations, the
American Legislative Exchange Council, the nursing home industry authored a bunch of
provisions to make it difficult or impossible for families to sue on behalf of
their abused or neglected (i.e., dead or injured) relative. For one, these laws make it
virtually impossible for grossly negligent facilities to ever be liable for punitive
damages. For another - and the focus of
the series- these laws prohibit families in these tragic situations from using
any state investigation records as evidence in their lawsuit. In the words of Milwaukee personal injury
attorney Ann Jacobs, “When you’ve got these records that are part of the
regulatory process, the idea that you wouldn’t be able to introduce them to the
jury is just insane. Why would we hold
that information back?” Indeed.
In one case profiled by the series, records of a four-month
period of neglect that led to a bone-deep, E-coli infected bed sore on the backside of a 32-year-old
brain-damaged and physically-disabled resident (he required horribly painful surgery and months on his stomach), could not be used in the
family’s lawsuit.
The impact of this law extends beyond the families who do sue:
Several attorneys
said they have turned down meritorious cases because the new law makes it
harder and more costly to sue nursing homes and other health care facilities.
“Even before this legislation, these were very difficult,
expensive, time-consuming cases,” said Jason Studinski, a Stevens Point
attorney who specializes in elder abuse lawsuits. “Frankly, once a victim knows
what hurdles are in their path, some choose to go away, even if they have a
legitimate claim.” …
And don’t think patient safety won’t suffer. As Dane County Circuit Judge William
Hanrahan, who prosecuted crimes against the elderly for 19 years as a district
attorney and assistant attorney general, put it:
“It’s very important that attorneys are able to take these
cases and hold those who neglect and abuse the elderly accountable. Some of the biggest changes come as a result
of legal action.”
And lately, the FTC has been up to its eyeballs monitoring the credit reporting industry. In 2010, the agency issued new rules about those deceptive and often irritating “free credit report” commercials, advertisements and websites. They aren’t. Free, that is. Wish that were the only problem.
Today, the FTC released a new study finding that when it comes to the three biggest credit bureaus - Experian, Equifax and TransUnion, “As many as 42 million consumers have errors on their credit reports, and around 20 million have significant mistakes.” Says the FTC, “One in four consumers identified errors on their credit reports that might affect their credit scores,” but only “[o]ne in five consumers had an error that was corrected by a credit reporting agency (CRA) after it was disputed, on at least one of their three credit reports.”
So as beneficial as FTC monitoring is, sometimes it’s not enough. And that was made clear in last night’s 60 Minutes piece about how nearly impossible it is to get a credit reporting agency to fix a mistake once they know about it, sometimes with ruinous consequences for the consumer. And that’s where lawsuits and state Attorneys General can step in.
First the lawsuits. Judy A. Thomas, who had a great credit history, was denied car loans, credit cards, etc. etc. because her credit reports confused her with someone named Judith Kendall who had a lot of debt. It shouldn’t have come to this, but until she took those credit agencies to court, nothing got resolved.
As for AG’s, back in 1996, Congress amended the Fair Credit Reporting Act (FCRA) to include state enforcement provisions. (See more in this law review article.) And last night’s piece, based on a series that first appeared in the Columbus Dispatch, showed how valuable a move that was. Writes the Dispatch:
Ohio Attorney General Mike DeWine [who appeared in the 60 Minutes piece]… and at least 24 other state attorneys general launched an investigation into the three national credit-reporting agencies after a Dispatch series Credit Scars, exposed systemic flaws in their operations that prevent consumers from correcting costly mistakes.
DeWine has discussed the problems with officials from Experian, Equifax and TransUnion. No solutions have been proposed yet, he told The Dispatch on Friday, but his work with them will continue…
Without that power, these 24 state AG’s would have no tools to help their own citizens, if only to try to push Congress to strengthen the federal law. This is the kind of state power that groups like the U.S. Chamber of Commerce and the American Tort Reform Association want Congress to strip away. Seems they don’t want to sully our federalist system with too much state power. … Oh wait.
When the group, the American Tort Reform Association, releases the one thing a year that garners press attention – their “Judicial Hellholes” report – we usually make fun of them because when something doesn’t pass the laugh test, what else are you supposed to do? Other have taken their critiques more seriously and that's fine with us.
But this year, it’s our feeling that the new report is somehow beyond comedy. In fact, I think the authors of the new 2012/13 Judicial Hellholes must be demented or perhaps recently experienced some kind of brain injury. Something like that. I’m not planning to make fun of ATRA this year because people who have such issues don’t deserve ridicule. At this point, I am just sad for them.
ATRA has designated the entire state of California as the nation's Number #1 so-called “Judicial Hellhole.” That means, in its opinion, there are too many lawsuits against corporate wrongdoers in the state of California. Let’s leave aside the fact that ATRA’s members are mostly these very same corporations who have been hauled into court for hurting or killing people (or their trade associations or insurers), so their credibility on such topics is generally nada.
One of the most upsetting developments we’ve seen in the cause for justice in the United States recently has been the California’s court system budget catastrophe. This is not your typical budget problem. This is resulting is the virtual decimation of civil justice for many of California’s wrongfully-injured population. Courthouse after courthouse is closing in California. Here’s San Bernadino. Here’s LA County, where cuts “include the closure of all courtrooms in 10 regional courthouses, including those in Beverly Hills and San Pedro.”
As explained by Judge Michael L. Stern of the Los Angeles Superior Court, “Although there will be some closures and adjustments to criminal courts, constitutional and public safety imperatives dictate that criminal prosecutions will not be much impacted by the reorganization.” In other words, civil cases principally will take the hit:
What's in store for the coming year?
For starters, to maximize courtroom and staff utilization, most civil cases involving a broad range of personal injury, collection, eviction, small claims and probate matters will be shifted from the closed courtrooms to the downtown central civil courthouse, or to a limited number of designated courthouses where various types of cases will be grouped. … Trials could be affected if witnesses are unable or unwilling to testify because they have to travel farther.
What’s more, “A greater financial burden will be placed on litigants, especially the economically disadvantaged, who will have to present their legal issues at distant courthouses. And more staff layoffs, further slowing the judicial process, appear inevitable.”
Good luck ever getting a case to trial. Even ADR programs will be eliminated. Writes Judge Stern,
If there were ever a time to pay attention to the quality of justice that we have come to expect and deserve from our judicial system, it is now. The public should not be content with the dislocation and delays in resolving civil disputes caused by court funding shortages. Equal access to justice under the law demands more. It requires action by everyone to make the elected officials responsible for funding our courts aware that the words "equal justice under the law" cannot become just another hollow slogan.
What’s so sad about ATRA’s new report is that the authors actually reference this development – yet still attack the courts and people who try to bring lawsuits there. So sad.
To: U.S. Chamber of Commerce Institute for Legal Reform Members
From: New PR Person in Charge of Responding to “Hot Coffee”
Date: May 21, 2012
Re: Please don’t fire me
I realize a lot was expected of me. I am fully aware that each of my seven predecessors were unceremoniously sacked for failing miserably in their one task – trying to destroy the award-winning documentary film, Hot Coffee.
Now without making any excuses, I do think we should ask ourselves how this happened. I realize that we’re terrible at making films that anyone wants to watch. But we’re supposed to own the narrative on “tort reform.” That’s why we produce expensive movie ads, make our own commercials and create our own newspapers. No one’s supposed to hear the other side of this, let alone millions of HBO/DVD viewers! Plus the film just won an award from that pinko Hollywood outfit, the Emmy’s. That won’t help.
Problem is, trying to damage the film now – over a year since its Sundance premiere and after much acclaim in the meantime - is probably insane. But when ATRA’s and ALEC’s Victor Schwartz came begging, still miffed that the film used sound bites of things he actually said, I thought well, we still have boatloads of cash. Let’s see how far we can get once again re-arguing (this time in webisodes) McDonald’s case – a case that the jury didn’t believe, a case that the judge and jury both rejected, and which led the judge, in refusing to grant a new trial in the case, to call McDonald's behavior “callous. We thought if we upped the star power by having Victor’s corporate law partner join in, and then promoted it all with some Google and Facebook ads … well, what’s the harm?
Unfortunately, some people have now brought to my attention a few “inconvenient” facts that … again – I beg you, please don’t make me #8.
First, you know how the whole last part of our little project (that would be webisode 6) accuses Hot Coffee of misleading viewers on how Jamie Leigh Jones got her case before a jury, saying that Sen. Al Franken’s efforts had nothing to do with it? What, did we have pre-schoolers doing the research on this? Because I just found a March 23, 2010 article from the Minneapolis Star Tribune, where KBR itself essentially confirms exactly what Hot Coffee says, specifically:
In a victory for Minnesota Democrat Al Franken, military contractor KBR has decided to drop a Supreme Court appeal in the case of a former company clerk who alleges she was raped by co-workers in Iraq. KBR's decision represents the first significant legal fallout from the "Franken amendment," which protects defense workers from being forced to accept arbitration after suffering sexual assault, battery or discrimination. The measure became the subject of a testy Senate battle that reverberated in legal circles and in popular culture as the subject of a Jon Stewart rant on cable TV's "The Daily Show."
KBR, which has sought to handle Jamie Leigh Jones' claim out of court, acknowledged Tuesday that its appeal might violate the amendment. …
Although the incident happened five years ago, when Jones was 20, the company could still be covered by the Franken amendment, which was intended to bar defense contracts to companies that enforce new or existing arbitration agreements in cases such as Jones'.
And then there’s the part where we say that overall damages caps (including compensation limits for economic losses) are so rare that focusing on Nebraska’s law (as applied in the Gourley’s birth injury case) was “misleading” and an example of using “slight of hand.” How was I supposed to know that just as our ads were hitting Facebook and Google, a jury verdict was coming down in a whole other state – Virginia – which also has this kind of cap? And now, just like in the Gourley’s case, this verdict is gonna be drastically cut, too! Economic damages! Hey, I’m not omniscient. I can’t control the timing on these things.
The Virginia case also involved a severe birth injury due to negligence by doctors, where the jury decided the child needed $9 million for a lifetime of care – but due to the cap, she’ll get a fraction of this. Now, I’m not complaining. Believe me, you won’t ever find us lobbying to repeal overall caps no matter how “extreme” we say they are. So here’s what happened in Virginia:
… Marissa [Simpson, Marsha's daughter] was born with dangerously low blood pressure, and with a loss of one-third to one-half of her normal blood amount. Additionally, her kidneys had been destroyed, and she suffered a brain injury from lack of oxygen. To date, Marissa has undergone two kidney transplants, and she has cerebral palsy. The attorney said the decision to induce was negligent, and once complications arose, doctors should have acted more quickly.
The family has spent more than $1.75 million to provide care for Marissa. Expert witnesses testified they could spend up to $8 million in the future.
[Attorney] Krasnow said he anticipates the defense will file a motion to ask Judge William Broadhurst to follow Virginia law, which caps the damages recoverable at $1.4 million each for Marsha and Marissa Simpson.
Let’s just hope this case doesn’t make it into the new edition of the Hot Coffee DVD extras. And by the way, when we say the 7th Amendment doesn’t mean juries get to decide damages in civil cases, just don’t tell the guy who came up with the constitutional arguments that we use for repeal of the health care law. He doesn’t agree with us.
I do want to emphasize that when we complain about using “subjective opinions to reach forgone conclusions,” pointing out that “flapjacks have two sides,” we are limiting our comments exclusively to Hot Coffee. I’ve heard some complaints that these words could actually apply to us, since we clearly only use “subjective opinions to reach forgone conclusions.” Please do not worry. By no means do we have any intent of ever engaging in flap jacking.
When it comes to “shake your head in disgust” medical malpractice stories this week, we thought the one about ex-New York State Senator Pedro Espada Jr., convicted Monday of stealing more than $450,000 from his Bronx clinic to fund his cushy lifestyle, couldn’t be beat. Turns out not only did he steal money, but he “didn’t pay for medical malpractice insurance for more than a month, keeping doctors in the dark as they continued to see patients.”
But then we read about what’s happening in Michigan, where one doctor committed such egregious malpractice against so many patients - children, no less - that there’s a class action lawsuit against him. When was the last time you heard of that happening?
But it gets even worse. The state legislature is responding to this crisis by considering legislation that would not only limit compensation to these patients, but in some cases could provide complete immunity to grossly negligent doctors like this guy.
First by way of background, Michigan is already is suffering a serious patient safety crisis, no doubt due in large part to a number of severe so-called “tort reforms” already on the books, which have been weakening the accountability of incompetent doctors and unsafe hospitals since the 1980s. These laws include “caps” on damages. (See some others in Exhibit C in this report.)
So comes along Dearborn-based neurologist, Dr. Yasser Awaad. What he did was so horrible that People Magazinewrote about it in one of those “medical nightmare” features, so you know its bad:
In February 2006, Shana Reese was a bubbly cheerleader who loved shopping, going to movies and roller-skating with friends. The only wrinkle in her otherwise carefree life was the headaches that had plagued her for nearly a year. So her physician referred her to Dr. Yasser Awaad, a pediatric neurologist in Detroit. After two EEGs, she says, he diagnosed her with epilepsy and told her she couldn't drive, shouldn't go outside and had to quit cheerleading. Worst of all, the anti-seizure medicines he prescribed made her so tired that she became a virtual hermit, shuttered in her bedroom, sleeping away her high school years. "I was on the honor roll," says Shana, now 19, of Taylor, Mich. "But after I started these medications, I was barely passing."
Then came the real shock-after nearly a year of debilitating side effects from the medications, Shana went to other doctors (Awaad closed down his operation in 2007), and one of them explained that her headaches were caused by allergies, not epilepsy. Now she believes Awaad's diagnosis and treatment were all a sham. And she's not alone. She and 254 other former patients have sued Awaad for allegedly misdiagnosing them with epilepsy in order to reap huge insurance payouts for himself and Oakwood Hospital and Medical Center in Dearborne, Mich. (The hospital is also named in the lawsuit.) "A lot of these kids were put in special ed," says Brian Benner, the plaintiffs' attorney, who is seeking damages for emotional and physical distress as well as reimbursement for his clients' medical bills.
But now we learn that legislation has been introduced in Michigan that could “allow other doctors who commit malpractice to walk away with no consequences.” Said one mother, “I’m worried if this bill passes my son will not have any recourse.” She should be worried:
"The bills would do a lot of things," said Southfield attorney Marc Lipton of Senate Bills 1115-1118. "But at their core, they would raise taxes on the state taxpayers or bust the Medicaid budget, or both. They essentially immunize medical malpractice."
They said that if the bills pass, for example, their case against Dr. Yasser Awaad and Oakwood Healthcare System will unravel. That would leave as many as 2,000 plaintiffs unable to sue the doctor they say was motivated by an incentive contract and greed to misdiagnose them with epilepsy.
They are particularly concerned with SB 1116, which would protect a doctor who says that his or her conduct was an exercise of professional judgment and in the best interest of the patient, which they say that Awaad argued all along.
Not only that, the state itself is doing barely anything about Dr. Awaad. In January, the state of Michigan signed an agreement with Dr. Awaad “that allows him to keep his license. He'll be on probation for at least one year.” Oh, and he’s paying a whopping $10,000 penalty and will have his future work reviewed by another doctor. So Dr. Awaad isn't going anywhere. What’s more, reports the Associated Press, “The hospital continues to back Awaad, although it agreed in 2009 to pay $309,140 to Michigan's Medicaid program, which had paid for some of the doctor's treatments.” So the hospital apparantly hasn't learned a thing, either. Immunity for unsafe health care providers is about the worst thing the state could do now.
We thought this story couldn't get more mind-boggling until we saw the quote in Michigan Lawyers Weekly by Darren McKinney, spokesman for the DC-based American Tort Reform Association, about this legislation, which would protect doctors like Dr. Awaad and strip away rights of the potentially thousands of children who were medical abused by him. He says, “People are launching multimillion-dollar lawsuits because their alcoholic, chain-smoking, fat relative died in an emergency room … All physicians can do is make the best judgment calls possible. And many people make terrible decisions for their own health.”
You know how much I love quoting Ronald Reagan. (Kidding.) (No offense, Tea Party friends.) Here’s a good one: “We must reject the idea that every time a law's broken, society is guilty rather than the lawbreaker. It is time to restore the American precept that each individual is accountable for his actions.”
I’m guessing he believed that cigarette smokers, as one example, fell into that “individual accountability” category. But what if the law breakers are the people who are supposed to be enforcing the law? Should they be accountable? Which brings us to last night’s 60 Minutes, and a couple other hot topics.
The show last night was about the exoneration of Michael Morton, wrongly convicted of murdering his wife in 1987. He was freed after 25 years in prison based on DNA evidence, thanks to the hard work of the Innocence Project.
But, reports 60 Minutes, Morton’s attorneys, “recently discovered something astonishing: sitting in his prosecutor's file all those years was evidence that could have established Morton's innocence during his trial.” That evidence was a police report, relating how Morton’s then 3-year-old son, who witnessed the murder, described in detail the guy who really killed his mother, and it wasn’t Michael Morton. The DA who apparently failed to turn the report over to Morton at the time, Ken Anderson, later “was named prosecutor of the year in Texas and since 2002 he's been a district judge in the same court where Michael Morton was convicted. All those years, Morton languished in prison.”
Here’s some of the conversation between 60 Minutes correspondent Lara Logan and Barry Scheck of the Innocence Project, and Logan and Anderson’s lawyer, Eric Nichols:
Lara Logan: So just to be clear, from both of you, you believe that Ken Anderson, the prosecutor in Michael's case, willfully, deliberately withheld evidence.
Barry Scheck: We believe that there's probable cause to believe that he violated a court order, withheld exculpatory evidence, and violated other laws of the State of Texas.
In February, a Texas judge agreed with Michael Morton's legal team that there was probable cause to believe Ken Anderson violated the law, and Anderson is now the subject of a special criminal inquiry. That's extremely rare. Studies have shown prosecutors are hardly ever criminally charged or disciplined for serious error or misconduct. And one thing Ken Anderson doesn't have to worry about is being sued for damages by Michael Morton because the Supreme Court has ruled that prosecutors have "absolute immunity" from civil lawsuits for their legal work.
Lara Logan: Doctors, lawyers, policemen, there are all kinds of people who do their job with limited immunity or no immunity. It just seems hard to understand why prosecutors have to have a different standard to everybody else.
Eric Nichols: Seeing that justice is done, in many instances, requires very difficult judgments. And to come back behind those prosecutors and second guess them, or sue them would throw a wrench into that system of prosecutors seeking justice.
Lara Logan: I have to say, there's a certain irony in hearing you say it's the job of a prosecutor to seek justice, right? Because in this particular case, that's exactly what Michael Morton did not get. …
Michael Morton: I don't have a lotta things really driving me. But one of the things is, I don't want this to happen to anybody else. Revenge isn't the issue here. Revenge, I know, doesn't work. But accountability works. It's what balances out. It's the equilibrium. It's the social glue in a way. Because if you're not count-- accountable, then you can do anything.
Pay attention, corporate and medical lobbies pushing for laws to limit their liability for wrongdoing, so-called "tort reform." He's talking about you. As Logan notes, accountability doesn’t just mean criminal accountability but also, civil liability - something we touched on last week in our post about how the civil justice system can sometimes step in where the criminal justice fails. That is, except if the destructive, corporate-backed, right-wing American Legislative Exchange Council (ALEC) (which we’ve covered many times, like here, here, here) has anything to do with it.
Paul Krugman's column in today’s New York Times, called "Lobbyists Guns and Money," hits it out of the park with a great piece about how ALEC is responsible for the spread of Stand Your Ground laws (among many other horrendous laws), which many believe not only contributed to the killing of Trayvon Martin but also, the failure by police to arrest his killer. Writes Krugman:
Florida’s now-infamous Stand Your Ground law, which lets you shoot someone you consider threatening without facing arrest, let alone prosecution, sounds crazy — and it is. And it’s tempting to dismiss this law as the work of ignorant yahoos. But similar laws have been pushed across the nation, not by ignorant yahoos but by big corporations.
Specifically, language virtually identical to Florida’s law is featured in a template supplied to legislators in other states by the American Legislative Exchange Council, a corporate-backed organization that has managed to keep a low profile even as it exerts vast influence (only recently, thanks to yeoman work by the Center for Media and Democracy, has a clear picture of ALEC’s activities emerged). And if there is any silver lining to Trayvon Martin’s killing, it is that it might finally place a spotlight on what ALEC is doing to our society — and our democracy. …
But where does the encouragement of vigilante (in)justice fit into this picture? In part it’s the same old story — the long-standing exploitation of public fears, especially those associated with racial tension, to promote a pro-corporate, pro-wealthy agenda. It’s neither an accident nor a surprise that the National Rifle Association and ALEC have been close allies all along.
There’s a lot more in Krugman’s piece about the corrupting influence of corporate money behind ALEC’s work. So where does civil liability fit into this picture? Well, forget prosecutor immunity laws. These Stand Your Ground laws turn everyday people into prosecutor, judge, jury, and executioner, and then immunize them not just from criminal prosecution but also civil liability. Just like dirty prosecutors in Texas are protected. Just like the corporate members of ALEC are protected from civil liability when they commit wrongdoing, thanks to laws written and pushed by ALEC's civil justice task force, chaired by our friend Victor Schwartz, the General Counsel of the American Tort Reform Association. Here’s Victor, below. As they say, everything’s connected.
Well well well, as the Church Lady would say, isn’t that special. A big class action lawsuit has just been filed by 38,000 Montana wheat farmers, cattle ranchers and others against former New Jersey governor Jon Corzine, claiming that “the failed financial firm run by Corzine stole millions from their accounts to pay off its spiraling debts, and that Corzine's ‘single-minded obsession’ with making MF Global a big player on Wall Street led to the firm's collapse.”
Seems like the farmers had “’hedged’ their crop prices by placing millions in MF Global accounts but MF Global made a series of bad investments -- notably in European debt – [and] it began ‘siphoning funds withdrawn from segregated client accounts’ to cover its debts.”
Now that’s what we like to see! No matter the outcome, it’s a great example of the civil justice system providing a level playing field so that farmers and small business owners can pool together and take on a big Wall Street fat cat! In fact, who wouldn’t agree that everyday people, farmers and small business should have a level playing field when it comes to taking on Big Corporate America?
Their lawyer. Apparently.
Mark Baker represents plaintiffs in this case (see him quoted here), and I don’t doubt that he’s all for this lawsuit. But Mark Baker is also a Montana lobbyist and not just any lobbyist. He’s a lobbyist for the American Tort Reform Association, the DC trade association funded by large corporations that seeks to limit liability for its members, which we’ve covered many times, like here.
Not only that, Mr. Baker specifically lobbied for laws in 2011 written nationally by the corporate-backed American Legislative Exchange Counsel (ALEC), (we’ve covered ALEC quite a bit, like here), which would have placed new burdens on injured Montana victims who bring and win lawsuits, as well as make it more difficult for the state of Montana to hire outside counsel, allowing it to recoup money from corporate wrongdoers for its taxpayers.
According to lobby report, Mr. Baker supported three bills for ATRA: HB 341, HB 342, HB 585:
HB 341 would limit the interest on judgments for injured victims, but not for corporations. Here’s the ALEC model bill.
HB 342 lowers appeal bond amounts. Here’s the ALEC model bill. This issue has been a huge one for ALEC as far back as we can remember.
HB 585 deals with contracts between state AG's and outside counsel. It is based on the ALEC model bill.
This final bill, which ALEC has pushed hard, would interfere with the contractual arrangement between outside counsel and the state Attorney General office, which are generally underfunded and understaffed and can't hope to take on big industries without outside counsels' help. Their work often results in states recovering billions of dollars from corporate wrongdoers. (We've covered this issue a bit here.)
So what exactly did Mr. Baker say when lobbying for these bills? That he would like his clients to have their day in court but not anyone else? That he wants his clients’ legal rights protected but would like to weaken everyone else’s? Did he complain about people suing – except when he's the attorney? Did he complain about trial lawyers – except himself?
Andy Rooney signed off on 60 Minutes last night, you may have heard. So allow us to dig back into the Center for Justice & Democracy archives for a curmudgeonly charming Andy Rooney story, which we’ll preface with part of the interview between Andy and Morley Safer on last night’s show:
Safer: You-- you've gotten tons of mail over the--
Rooney: I get---a lotta mail. I--more mail than---most people.
Safer: Do you answer any of them?
Rooney: Not much, no. I mean, who would wanna answer an idiot who has the bad sense to write me a letter? I mean, it's a certain kind of person who writes and they're not my kind of people, usually.
Safer: Well, they are your kind of people.
Rooney: Well--
Safer: They're the people who are--
Rooney: I suppose. But I-- I-- every once in awhile I answer one. But not very often.
You know, that’s what we thought too. But back in November 2002, we were not very happy with a piece Andy did called “I'm Going To Sue,” which was full of so many inaccuracies and inflamed rhetoric about the civil justice system that he may as well had the U.S. Chamber of Commerce or American Tort Reform Association substituting as guest commentator.
So CJ&D wrote Andy a letter, politely but firmly challenging virtually every statement in his entire piece, figuring it would end up in some intern’s trash bin. But we were very wrong. Andy did read the letter. Not only that, he called CJ&D, said he liked the letter and was going to mention it on the air. And sure enough, on January 13, 2003, he said in a most curmudgeonly endearing way:
ROONEY: (Voiceover) This is from Joanne Doroshow at the Center for Justice & Democracy, whatever that is.
She complains, but it's a good letter.
(Footage of letter)
ROONEY: (Voiceover) 'Your commentary did a disservice to the debates over the importance of the civil justice system.'
Well, maybe it did and maybe it didn't, but next time that woman buys takeout coffee at McDonald's, I'll bet she'll have it with milk.
(Hopefully, he caught Hot Coffee on HBO this summer!)
Meanwhile, not the same can be said for Morley Safer, who also in 2002 did a disgraceful piece about the civil justice system in Mississippi. In a similar letter, CJ&D wrote to Mr. Safer:
It was not enough that the piece simply parrots the outrageous claims of the business and medical communities that Mississippi jurors are rendering large verdicts against negligent drug companies and doctors not because jurors have listened to the evidence in a case (unlike Mr. Safer, I might add), but because they are poor, dumb, uneducated and black (or, in an equally unbelievable allegation, redneck and trying to render “payback for the Civil War.”) But you don’t stop there. You allow an unidentified man to make a completely outlandish, highly inflammatory and unsupported statement that jurors in Mississippi were being paid for their verdicts. So they’re not only poor and dumb, they’re also crooks.
This letter apparently did end up in the 60 Minutes trash heap. But the program was sued over this piece, and incredibly, the person who told Safer that juries were being paid off, "since told local reporters he was joking and thought the cameras were off, according to local reports. 60 Minutes, which has stood by the story, said in its report that it tried to contact several jurors, but none would talk.” Wow, not exactly the kind of response what might expect from the paragon of journalistic integrity that 60 Minutes thinks it is.
It’s a shame because as we also noted in our letter to Safer, “In the 1980s, 60 Minutes engaged in some ground-breaking journalism with correspondent Ed Bradley and producer David Gelber that exposed myths about juries and the civil justice system, which were then and continue to be perpetuated by the insurance industry, drug companies, tobacco companies, medical lobbies and other special interests seeking to limit their liability from lawsuits.”
We never said thanks to Andy Rooney so we'd like to say it now, and under the circumstances, we’re bound to miss him even more.
Today, the Washington Postis carrying an op ed by the head of the American Tort Reform Association, who argues that states should limit corporate liability for wrongdoing because this will create jobs, citing the National Federation of Independent Business for the proposition that lawsuit threats are "a significant influence on its regular index of small-business confidence." Oh no you don't.
On July 5, we posted a piece on this very subject - with citations - illustrating that in the real world in which most of us live, this is an absurd thing to say - even according to NFIB's own members! It was a pretty good post, so we'll just repeat it here:
In this weeks’ Business Insurance magazine, a trade publication for the insurance industry, our friends at the U.S. Chamber of Commerce have announced their new, or rather recycled PR messaging trying to link the relatively infrequent litigation by consumers against corporations, and job loss. And that's so they can justify their campaign to strip everyday Americans of their legal rights - so-called "tort reform."
Nothing like trying to exploit the country’s economic crisis with myths and fear-mongering to pad the bottom line of their members. Seem like a shrill thing to say?
Well, we decided to see what businesses themselves really think about this argument, as opposed to their lobbyists and PR spokespeople. If any sector of the business world were going to care about this, it would have to be small businsses, right? So we checked out the most recent “Small Business Problems & Priorities” survey issued by the National Federation of Independent Businesses (NFIB), a “small business” lobby group that is one of the Chamber’s closest allies in their fight to limit corporate liability for wrongdoing. We started to look down the list of 75 issues that are important to NFIB’s members. And we looked. And we looked. Finally, we hit #65: “Cost and Frequency of Lawsuits/Threatened Lawsuits.” That’s right, this issue ranked 65 out of a possible 75 matters that small businesses care about, just below "Solid and Hazardous Waste Disposal."
Wow, that's some crisis. The Chamber is right about one thing though. There’s nothing new here. They’ve been trying to make this failed argument for years. Check out this 2004 White Paper from the Center for Justice & Democracy, Small Business and “Tort Reform”: Much Ado About Nothing and Congressional testimony here.
The Economic Policy Institute looked at this issue as well. Here’s what they found:
There is no historical correlation between the inflated estimates of the costs of the tort system and corporate profits, product quality, productivity, or research and development (R&D) spending. Evidence suggests that the tort system, without the proposed restrictions, has actually been beneficial to the economy in all these areas.… [S]ignificant tort law change would be more likely to slow employment growth than to promote it. Endlessly repeating that so-called ‘tort reform’ will create jobs does not make it true.”
Let’s just say that over the years, Victor has been among the more honest spokespeople within the so-called “tort reform” movement, especially when it comes to medical malpractice litigation. Back in 2003, when the insurance industry was price-gouging doctors and blaming lawsuits for this instead of the industry’s own investment cycle, Victor said something else. He told the Honolulu Star Bulletin on April 20, 2003, “Insurance was cheaper in the 1990s because insurance companies knew that they could take a doctor's premium and invest it, and $50,000 would be worth $200,000 five years later when the claim came in … An insurance company today can't do that.” (This must have driven the Physicians Insurance Association of America [PIAA] even crazier than they already were.)
Similarly, in 1999, he told Liability Week, “We wouldn’t tell you or anyone that the reason to pass tort reform would be to reduce insurance rates. … [M]any tort reform advocates do not contend that restricting litigation will lower insurance rates, and ‘I’ve never said that in 30 years.’” OK!
And here is Victor Schwartz today, contradicting the U.S. Chamber of Commerce, the American Insurance Association, the PIAA, and a lot of politicians. As reported byBusiness Insurance (subscription):
But Victor Schwartz, general counsel of the American Tort Reform Assn. in Washington, was more skeptical. He noted that the recently introduced Help Efficient, Accessible, Low-Cost, Timely Healthcare Act of 2011—H.R. 5—does not mention sanctioning frivolous lawsuits. The measure instead focuses on “substantive” reforms such as capping noneconomic and punitive damages, he said (see box, page 3).
It is “rare or unusual” for a plaintiff lawyer to bring a frivolous malpractice suit because they are too expensive to bring, said Mr. Schwartz. “Frivolous” claims tend to be made against small businesses as an effort to leverage a settlement rather than in medical malpractice cases, he said.
Even when Republicans controlled both houses of Congress, proposals capping damages garnered insufficient votes in the Senate, Mr. Schwartz said. “It's extremely difficult to get caps through the Senate,” he said, adding that it also would be very difficult to integrate federal caps with existing state caps.
OK, let's forget the small business slam for a moment since abusive big businesses and their lawsuits are a far greater problem. But when it comes to suits by those injured by medical malpractice, let's review. H.R. 5 has nothing to do with frivolous lawsuits (while its supporters wrongly insist that it does). There aren’t frivolous med mal suits anyway because they are too expensive to bring. And federal caps would make a mess of state law.
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