ThePopTort

Covington & Burling, No Shame

Let me tell you a story about the Washington DC corporate law firm, Covington & Burling.

A huge cache of documents made public during the state attorneys general litigation against the tobacco industry in the late 1990s revealed that this firm, which for decades represented the tobacco industry, was an early force behind the “tort reform” movement.  Big Tobacco would funnel money to tort reform groups through Covington. The point was to pass laws to keep cigarette companies from ever being sued in court for promoting addiction through manipulation of nicotine levels, engaging in a secret campaign to hook teens and even pre-teens and lying to government officials and the public. A Covington partner named Keith A. Teel was the firm’s tobacco point man and even boasted about setting up “tort reform” groups with tobacco money. (See much more here.)

In addition to the release of millions of documents, the state tobacco litigation resulted in a $200 billion settlement. The settlement reimbursed 46 states for costs dealing with one of the biggest public health disasters in modern times. To get this incredible result, the states all used outside law firms, who worked for years without pay and risked being paid nothing at all. (Or as a plaintiff law firm might have put it, “the attendant risk that we might receive no fee whatsoever, and dedicated efforts by our team in hard-fought, complex litigation lasting over … years.” Emphasis so you’ll remember this.)

As to the fees they were ultimately paid in the tobacco case:

Many retainer agreements between AGs and private firms were made public, usually showing a standard contingency fee of around 15 percent, lower than typical 1/3 arrangements, despite the huge risks and the small likelihood of a plaintiff win. Yet when the industry began to settle these cases, most private counsel gave up the contracted fee and amiably agreed, along with the tobacco industry, to arbitrated fee decisions.  In announcing the first fee award to attorneys in Florida, Texas and Mississippi in December 1998, to be paid by the tobacco companies over a minimum of 10 years, labor mediator and panel Chairman John Calhoun Wells said, “[N]otwithstanding all the efforts by individuals who committed years of their lives to achieving progress on this issue, without these outside counsel, there would be no multibillion-dollar settlements for the states to reimburse tobacco-related health expenses and provide funds for educational efforts to reduce youth smoking.”

Looping back to Covington & Burling. In 1996, Covington’s Keith Teel met with Texas Attorney General Dan Morales to try to derail the Texas AG’s tobacco suit altogether (which no doubt included payment of attorneys’ fees that came out of the industry’s pocket). Fortunately Texas ignored him, and the industry ultimately paid the state $15 billion.

Covington’s attacks on lawsuits and those who use the civil justice system didn’t end in the 1990s, however.  Lately, one of their partners and Trump advisor, Phil Howard, has made a name for himself “attacking corporate regulations and the civil jury system [by] using inflammatory stereotypes about public protection laws and attorneys for the injured to deflect attention from the misdeeds of those he defends.” For example,

As for sexual harassment claims?  Barring some overt form of ‘quid pro quo,” (presumably a promotion conditioned on a sexual favor would qualify) Howard would prohibit those too. If "just offensive comments," are at issue, says Howard, women should simply embrace the laws of the locker room and get over it. The alternative, he says, would kill "the spontaneity needed" for a “healthy” work environment.

He also derides laws that permit civil rights lawyers to be paid.

So pardon my shock when I read this story:

Covington & Burling LLP came under fire March 5 for a $125 million fee it received to represent the state of Minnesota in its $5 billion environmental lawsuit against 3M Co., which settled Feb. 20 for $850 million.

At a March 5 Minnesota House Ways and Means Committee hearing, state Rep. Sarah Anderson (R) questioned the Big Law firm’s contingency arrangement with the state, reached in 2010.

“I’m just curious as to why we are paying a law firm $125 million for seven years of work,” she said. Referring to her own math, she said the sum works out to about $48,000 per day. “That seems a little steep.” She also said all the legal fees are being shipped outside the state because Covington doesn’t have an office in Minnesota.

“Covington has represented the State of Minnesota in environmental matters for more than 20 years, including the NRD [3M] litigation that was recently resolved. Our work on the NRD case involved a contingency fee arrangement, the attendant risk that we might receive no fee whatsoever, and dedicated efforts by our team in hard-fought, complex litigation lasting over seven years,” a Covington spokesman told Big Law Business in an email.

Hoping that sounds familiar.

We’ve covered a lot of hypocrites in our day, but this one may take the cake.

It's Tamper Time!

Big corporations that harm people but don’t want to be held accountable, are nothing if not creative. Lobbying for laws that take power and authority away from civil juries, check. Buying judges, check. Forcing disputes into secretive systems that they control, check. Trying to convince everyday Americans that stripping away their constitutional rights is a good thing, check. (I would cite some earlier PopTorts as evidence of this but we’d be here all day.)

But if the goal is to flip the legal playing field so dramatically in their favor so they never lose a case, why stop there?  There is tampering to be done!

In Dallas, U.S. District Judge Ed Kinkeade is bringing in the U.S. Attorney’s Office and the FBI to investigate after plaintiff attorney Mark Lanier “raised concerns Monday about possible witness tampering” by Johnson & Johnson subsidiary DePuy Orthopaedics. According to law.com:

The issue came up after orthopedic surgeon Dr. David Shein filed an affidavit in Alicea v. DePuy Orthopaedics Sunday night alleging that a DePuy Orthopaedics Inc. sales representative told him during a surgery-related conversation at his hospital in the Bronx on Oct. 13 that “there could be ramifications” for the doctor’s medical practice in connection with his upcoming Dallas testimony.

Shein said in the affidavit that the sales rep complained to him that the lawyers were “peppering him” and the “business in Dallas was freaking [him] out.” Shein said in the affidavit that the sales rep told him DePuy lawyers had contacted him on Oct. 12 and that the conversation made him anxious.

“He said the lawyers were ‘on him like crazy.’ They were putting ‘big time pressure’ on him,” Shein wrote in the affidavit about his conversation with the sales rep.

DePuy’s defense team (which apparently includes U.S. Chamber of Commerce lawyer John Beisner, a partner at Skadden Arps in Washington, D.C.) denies all this – but then asked for a gag order. Which the judge denied.

This story reminds me of a recent fascinating academic article about corporate influence over jury pools, called “Buying the Verdict.”  The researchers:

document strong evidence that firms systematically increase specialized, locally targeted advertising following the firm being taken to trial in a given location - precisely following initiation of the suit. … Moreover, firms concentrate these strategic increases in locations where the return on their advertising dollars are largest: in smaller, more concentrated advertising markets where fewer competitor firms are advertising. They focus their advertisement spikes specifically toward jury trials, and in fact specifically toward the most likely jury pool. Lastly, we find that the prevalence and intensity of this behavior is increasing over time.

This seems similar to what insurance companies used to do in the 1970s and 1980, when they ran ads with false information meant to influence jury pools to rule against plaintiffs or to lower verdicts.  At least one court considered these ads "jury tampering."

Specifically, in the 1978 case Quinn v. Aetna Life and Casualty Co., the New York Supreme Court said these ads "violate[d] the state public policy against jury tampering, unduly burden[ed] plaintiffs' right to an impartial jury, and distort[ed] the trial process by providing otherwise inadmissible insurance evidence..." Moreover, because the ads contained so many inaccuracies, two companies - Crum and Foster and Aetna - were forced to sign consent orders with state insurance commissioners in Connecticut and Kansas, agreeing to stop publishing these ads. (Kronzer, “Jury Tampering – 1978 Style,” 10 St. Mary’s L.J. 399 (1979) at 400, n. 9.)

The great Taoist philosopher Lao Tzu once said: never take over the world to tamper with it. Those who want to tamper with it are not fit to take over the world.  Somehow, this seems awfully fitting.

HuffPo Repost: Congress Moves to Punish Everyone Using the Affordable Care Act and Medicare

Those who think Congress is weakening its anti-Obamacare, anti-Medicare resolve aren’t paying attention. Instead of beginning with repeal and replace bills, however, Congress has shifted focus to punishing anyone who benefits from these laws. And it’s happening right now.

On February 28, 2017, the U.S. House Judiciary Committee will markup and vote on a rushed piece of legislation, H.R. 1215, covering anyone who receives health care through a “federal program, subsidy, or tax benefit.” At a minimum, that means the Affordable Care Act, veteran and servicemember health plans, Medicare and Medicaid (i.e., the elderly, poor and disabled). Beyond this, the full scope is unclear because the bill has not been examined in a single legislative hearing.

According to H.R. 1215, punishment would begin if you (or your child or loved one) were harmed by an unsafe hospital or nursing home, in some cases injured by an unsafe drug or medical device, or even sexually abused by a doctor. If you tried to seek compensation or accountability in court, you would be forced into an inferior and cruel system of justice created just for you by lobbyists and career politicians in Washington DC.

This bill, H.R. 1215, the so-called “Protecting Access to Care Act of 2017” (more like the Protecting Access to Unsafe Care Act of 2017) is the brainchild of congressional Republicans who say they want government out of health care. Ironically, this bill is nothing if not federal mandates, including eliminating civil justice rights guaranteed by state governments. These mandates include taking power away from local juries to decide individual cases, and consolidating that power in the hands of DC politicians.

Keep reading.

Capping Damages is Dangerous (and it doesn’t take a brain surgeon to know it)

In 2003, the Texas medical and insurance lobbies convinced voters to change their state constitution so that lawmakers could severely cap compensation to injured patients. They scared the public into believing that doctors would actually leave Texas unless people voted to give up their own constitutional rights. One glossy campaign brochure read, “Who Will Deliver Your Baby?” Once the measure passed, Texas lawmakers then made it nearly impossible to hold grossly-negligent doctors and hospitals accountable in court.

Turns out, proponents of the measure lied. The Texas Observer first pointed this out in a 2007 article aptly title Baby, I Lied. Subsequent research has also confirmed this.

Instead, the state attracted butchers, like former neurosurgeon Christopher Duntsch who was just sentenced by a jury to spend the rest of his life in prison:

For weeks, jurors heard the accounts of patients who had been maimed or paralyzed in horrifically bungled surgeries. Kellie Martin and Floella Brown died. They also heard from doctors, nurses and other medical professionals who were shocked by what they saw Duntsch do during and after those surgeries.

“So why didn’t he stop?” Shughart said. “Because of greed. Because he owed people a lot of money. He wanted to live the high life and a neurosurgeon makes big bucks. Why didn’t he stop? Because he had no conscience. He doesn’t care what he has left in his wake.”

But there’s another reason why he didn’t stop: the 2003 "cap" law.

As attorney Chris Hamilton explained, without this law, “Duntsch would not have been allowed to keep operating on patients. It is almost certain there would have been a significant liability lawsuit against one of the hospitals for an early patient …I cannot imagine a circumstance where the hospitals would not have kicked out a doctor like this much sooner.'”

This isn’t the only case of a butcher brain surgeon in Texas or even the only case we’ve covered. A few years ago, we found out about another guy, Dr. Stefan Konasiewicz, who, after being disciplined in Minnesota, made a bee line for Texas where he continued to harm patients as he operated on their brains.  

But we don’t even need horrendous anecdotes like this to prove the point. Researchers studying patient safety in states with "caps" (like Texas) found “consistent evidence that patient safety generally falls” after caps are enacted. That’s because medical malpractice liability provides “general deterrence” — an incentive to be careful in general — in addition to any “specific deterrence” it may provide for particular actions.

Yet politicians in other state capitols (and possibly Washington DC) are considering new laws to stop liability lawsuits against hospitals or weaken the deterrent potential of the civil justice system. Such insanity. Perhaps they all need brain surgery. Try over at HUD.

HuffPo Repost: "When the Insurance Industry Covets Our Rights"

In 1995, a part-time actuary for the Alabama Insurance Department achieved what the insurance industry had been trying to accomplish in state legislatures nationwide for years. With the simple stroke of a pen, Alabama became the first state in the nation to approve “forced arbitration” clauses in insurance policies, abolishing policyholders’ rights go to court against insurance companies or insurance agents for payment of their claims - even if the agent stole the policyholder’s money.

Incredibly, this was done behind the back of then Alabama Insurance Commissioner Mickey DeBellis, who did not find out about the practice for two years. He told the Multinational Monitor magazine in 1998 that when he finally saw the clause, “It was one of the worst I’d ever seen in my life. It took every right away from the policyholder. I blew my top.”

Then,

Keep reading.

Murder and Mayhem, West Texas

It’s been awhile since we last covered the absolutely devastating 2013 explosion at the West Fertilizer Company (WFC) plant in Texas, which killed 12 emergency responders and three members of the public, and injured 260 more. This was “one of the most destructive incidents ever investigated by the U.S. Chemical Safety and Hazard Investigation Board (CSB) as measured by the loss of life among emergency responders and civilians; the many injuries sustained by people both inside and outside the facility fenceline; and the extensive damage to residences, schools, and other structures.”

But until now, no one really knew what caused the initial fire. The CSB couldn’t figure it out. Now, apparently, there's (kind of) an answer. According to the Bureau of Alcohol, Tobacco, Firearms and Explosives, which interviewed more than 400 people, this must have been some sort of criminal act - basically because nothing else makes sense.

ATF Special Agent Robert Elder said the agency is offering a $50,000 reward to help find the person who committed the crime, which was determined to be deliberate after "we ruled out all accidental and natural causes." But he could not say why someone would have set the fire. "I think it's too early to speculate on murder charges," Elder added.

However, none of this should detract from the findings of the CSB, which released a report in January 2016, noting all the ways the tragedy could have been substantially minimized. (After the fire was reported, it took another 20 minutes for the plant to explode.) Incredibly, says the CSB, “19 other Texas facilities storing more than 10,000 pounds of [Fertilizer Grade Ammonium Nitrate or] FGAN are located within 0.5 miles of a school, hospital, or nursing home, raising concerns that an incident with offsite consequences of this magnitude could happen again.”  Here are just a few things the CSB found:

• "[T]he construction of the bins and other building materials as well as the lack of an automatic sprinkler system plausibly contributed to the detonation."
• "[There were] inherently safer approaches to FGAN use and storage that reduce the risk of an FGAN detonation."
• "The West Volunteer Fire Department did not conduct pre-incident planning or response training at WFC, was likely unaware of the potential for FGAN detonation, did not take recommended incident response actions at the fire scene, and did not have appropriate training in hazardous materials response."
• The company “was dropped by one insurer for failing to address safety concerns identified in loss control surveys” but the carrier “at the time of the incident did not appear to have conducted its own safety inspections of the facility.”
• There are “several shortcomings in federal and state regulations and standards that could reduce the risk of another incident of this type. These include the Occupational Safety and Health Administration’s Explosives and Blasting Agents and Process Safety Management standards, the Environmental Protection Agency’s Risk Management Program and Emergency Planning and Community Right-to-Know Act, and training provided or certified by the Texas Commission on Fire Protection and the State Firefighters’ and Fire Marshals’ Association of Texas."

See more about that last point here. Indeed, as we wrote in 2013:

The New York Times has a disturbing front page story about Texas’ reaction to the horrific April 17 West Fertilizer plant explosion that killed at least 14 and injured about 200 (and was insured for only $1 million dollars thanks to incredibly poor insurance regulation in that state.  ThePopTort is better insured than that.)

In Texas, lawmakers like Governor Rick Perry and even the town’s mayor see no need for any improved safety laws.  None.  Not even fire codes, which are often banned in Texas! 

Next week, an injury trial is set to begin against several defendants including companies that “either manufactured or sold fertilizer to West Fertilizer Co.” as well as "Adair Grain Co., owner of West Fertilizer Co.” Notably, “Previous trial settings — the first in October, the second in January — were canceled after the parties reached undisclosed settlements and partial settlements.”

Let’s hope justice is just around the corner for these victims.

Sex, Drugs and Caps on Damages

Forgive me if you thought this might be a post about the debauchery of rock stars, which I know sounds more interesting than “tort reform.” But please stay with me anyway.

“Caps on damages,” and especially the often-discussed “$250,000 cap on non-economic damages” is, as Kevin Drum put it in Mother Jones, “the worst possible kind” of tort reform. That’s because a cap like that “affects only the biggest, most serious cases.” Moreover, when a “cap” is in place, and because “the cost of mounting a case is expensive enough, … it’s barely worthwhile for a lawyer to bother.” This is particularly true when injuries are largely “non-economic” in nature (lost limbs, blindness, trauma, pain) or economic wage loss is relatively low (think children, the poor, the elderly).

Laws that cap damages scoop up all nature of wrongdoing and protect a shocking catalog of lawbreakers. Criminals, drunk drivers, not to mention coldhearted corporate executives whose policies cause deaths and injuries. A couple recent cases illustrate how that works.

In Ohio, the state Supreme Court is about to rule on the impact on sexual assault victims of that state’s $250,000 non-economic damages cap.

Jessica Simpkins was raped at the age of 15 by her church pastor – a man hired by Grace Brethren Church in Sunbury despite the knowledge that he had previously sexually abused two girls.

In a civil suit, a jury awarded Simpkins $3.5 million for pain and suffering, but the amount was reduced to $250,000 due to a state law that caps damages.

She says she's being re-victimized and took the case to the Ohio Supreme Court.

A recent article in Slate explored the horrendous impact of non-economic damages caps on sexual assault victims.

Like many sexual assault victims, Simpkins also pursued a civil suit against the church. In a criminal case, “the perpetrator is only going to be held accountable to the state, not the victim,” says Joanne Doroshow of the Center for Justice and Democracy at New York Law School. “Sometimes, the civil justice system is the only way for a perpetrator to be held directly accountable to the victim for the trauma and the pain that they’ve caused.” …

[A]s more and more victims of sexual assault are taking their cases to the civil justice system, the caps are having unforeseen consequences. “If you rape a child, you get the benefit of tort reform,” says Simpkins’ lawyer John Fitch. Tort reform, he adds, “makes it financially impractical for children like this to hold those responsible accountable in the legal system.”

In Texas, another atrocious wrongdoer, engaged in truly unspeakable acts, likely will be another beneficiary of a similar cap. According to Forth Worth’s NBC 5,

The owner of a North Texas medical company regularly directed nurses to give hospice patients overdoses of drugs such as morphine to speed up their deaths and maximize profits, an FBI agent wrote in an affidavit for a search warrant obtained by [the station].…

[The owner, 34-year-old Brad Harris, an accountant], instructed a nurse to administer overdoses to three patients and directed another employee to increase a patient's medication to four-times the maximum allowed, the FBI said. He allegedly sent text messages like, "You need to make this patient go bye-bye."…

Harris also told other health-care executives over a lunch meeting that he wanted to "find patients who would die within 24 hours," and made comments like, "if this f----- would just die," an FBI agent wrote in the warrant.

After Texas enacted its $250,000 cap in 2003, it became extremely difficult for families to sue Texas nursing homes for abuse or neglect. As the ABA Journal put it, this kind of law “hits the elderly and the poor especially hard, since they have little or nothing to show for lost earning power under economic damages.”

One Texas attorney added that after this law passed, “many of the nursing homes he has been dealing with over the years have either stopped carrying insurance or have switched to $250,000 so called wasting policies. Under those policies, defense costs are subtracted from the coverage amount, leaving less for payouts to plaintiffs.”

It remains to be seen whether this cruel liability limit was on Mr. Harris’ mind when he started ordering nurses to overdose and kill patients. But this we know for sure: caps like this lead to more medical errors, higher health care costs and no increase in patient care physicians.

In other words, forget that rock n roll lifestyle. It’s caps on damages that might really do you in.    

Down and Out in the USA

Today, we’re addressing the disturbing underside of civil justice in America. Sometimes it works for the wrong people. And sometimes, it doesn’t work at all.

This week, the Washington Post’s The Fix posted an interview with Georgetown University law professor Paul Butler, former federal prosecutor whose new book, Chokehold: Policing Black Me, will be out next year. The topic: “Why did Cleveland sue Tamir Rice’s family? And why is a Chicago officer suing the estate of a teen he killed?” This is not a joke. To explain:

This month alone, the City of Cleveland filed suit against the family of Tamir Rice, a 12-year-old shot and killed by police who a grand jury declined to indict in December. The suit sought to collect $500 in unpaid emergency medical bills incurred after Rice was shot in a city park and transported to a hospital. After public criticism of the suit reached a fever pitch, the city dropped the claim.

In addition to that, a police officer in Chicago who shot and killed a mentally ill teen and his unarmed neighbor filed suit against the teen's estate, claiming that the ensuing publicity had caused the officer permanent trauma.

Says Professor Butler:

Cleveland acted callously, which is the way poor people of color get treated by the government all the time. Look at how Michigan officials allowed the residents of Flint to drink poisoned water – water the officials wouldn’t even drink themselves.

The Chicago cop is using the court system to have a temper tantrum. Legally, he has no case. Sometimes people use the court system to tell their side of the story. The role of an effective lawyer includes advising a client when a lawsuit is not in his best interest. Officer [Robert] Rialmo’s lawyer failed him in this regard.

Indeed, in Flint (as we’ve noted before), lawsuits by poisoned residents are going to be difficult.  Continues Professor Butler:

In general, however, the law is not especially friendly to poor people. It’s easier, for example, for Flint to go after people who don’t pay their water bill than for Flint residents to sue government officials for giving them poisoned water.

And low-income folks don’t have nearly as many protections against lawsuits as do the police. Often, they can’t afford lawyers to defend them when they get sued.

Now imagine you are one of 2,000 migrant mothers or children held in the Immigration and Customs Enforcement detention facility in Dilley Texas, and subject to inhuman prison-like conditions by the Corrections Corporation of America, which runs it. As journalist Antony Loewenstein (author of “Disaster Capitalism: Making a Killing Out of Catastrophe”) notes in a New York Times op ed today,  CCA, “America’s largest private prison and detention company," has a “long history of ignoring detainee safety and federal laws.” It has also “lobbied politicians to keep more people behind bars rather than deporting them” since “Congress requires that at least 34,000 people be housed daily in detention centers — a so-called detention bed mandate. … This can often lead companies to skimp on services [like] mental health care, outdoor activities and healthy food.”

According to Clara Long, researcher with the U.S. program of Human Rights Watch, “Families with children, including very young children, have told us they were kept for prolonged periods in very cold rooms, given inadequate or inappropriate food, and denied medical care while in Border Patrol custody. Many of these women and children are fleeing violence, persecution and abuse in their home countries.”

The Times quotes Yancy Maricela Mejia Guerra, a detainee from Central America, who said, "People who say this is not a prison are lying … It’s a prison for us and a prison for our children, but none of us are criminals.” 

Notes Human Rights First, 

A female asylum seeker's best hope of protection is in having a lawyer to represent her in immigration court proceedings. Yet it is much more difficult for immigrants to secure legal counsel when they are held in immigration detention. Without an attorney, a mother has almost no chance of receiving asylum. According to recent TRAC data, 98.5 percent of lawyer-less women with children were deported, even when the government had determined they had a credible fear of persecution if returned home. With a lawyer, their ability to prove their cases increases significantly.

At the Dilley facility today, Human Rights First legal experts met many mothers and children who do not have legal representation and, given their detention, will have great difficulty securing counsel.

Clearly, something’s very wrong with this picture.

Hospital Bullies Target Brain-Injured Newborns - Again!

There’s an interesting IMDB list called “The 100 Best Evil Characters.” It includes some obvious choices: Darth Vader, Lord Voldemort, Chucky. I’m not sure what it takes to qualify for this list but I’m wondering whether the list creators might consider a new addition. It’s more of a group, actually. Let’s just call them: corporate hospitals.

We wrote a few years ago about what they did to brain-injured newborns in New York. Now, it’s Maryand's turn, apparently.

In Maryland, hospitals are pushing – and I mean pushing very hard (complete with a media campaign and push polls) a bill that targets the most vulnerable victims of medical malpractice – catastrophically-injured newborns. Their legislation – which is the subject of Maryland legislative hearings later this week – would abolish access to the jury system for these babies and their families, no matter the extent of the hospital’s misconduct or the severity of the child’s injury. To be compensated, parents would be forced to go to a state fund, controlled by the state’s powerful medical establishment.

Needless to say, this proposal denies these families the same kind of rights and recourse that every other negligence victim has in the state. If an adult man were injured by medical malpractice in Maryland, he would be able to sue his doctor or hospital, receive compensation determined by a neutral judge or jury after hearing all the evidence, and obtain some measure of justice by holding the wrongdoer accountable in court. Under this proposal, only brain-injured newborns and their families would be stripped of their constitutional rights. And because unsafe hospitals would no longer fully pay for their own malpractice in these cases, accountability for negligence would be weakened. Studies show that when a state strips away a patient’s right to sue in court, medical errors increase as the deterrence function of the tort system is weakened leading to the practice of riskier medicine.

Sadly, proponents of this bill are regurgitating the same unfounded threats about “lack of access to care for women” that we saw years ago from the insurance and medical lobbies and their political allies, like Rick Perry in Texas. Even aside from the fact that Maryland already has more OB-GYN’s per capita than any other state in the nation, the suggestion that OB-GYN’s might now leave Maryland or abandon their specialty if this horrendous legislation isn’t enacted, is outrageously false fear-mongering. In Texas, that realization came too late to stop legislation that stripped families of their legal rights, later leading to articles like “Baby I Lied.”

There are years of studies showing no correlation whatsoever between where physicians decide to practice and the malpractice environment, including malpractice insurance rates and state tort law. (See CJ&D's Med Mal Briefing Book starting at page 50.)

Here's another observation. For over 40 years, policy proposals in the area of medical malpractice have concentrated almost entirely on the “doctors as victims” narrative. In other words, the insurance, hospital and medical lobbies effectively turned the malpractice issue on its head, so that policymakers treat medical malpractice primarily as if doctors, hospitals and their insurers were the victims of it, instead of the hundreds of thousand of patients who wind up dead or injured each year. This is well-reflected in the hundreds of medical malpractice laws that have passed around the country, including in Maryland, virtually all of which are designed to weaken the liability of health care providers. This proposal is yet another example.

And how ironic, the patronizing criticism made by providers and hospitals that say this system is needed in Maryland because the malpractice system delivers compensation too slowly to victims. As others have written, “This argument strikes us as an example of the ‘chutzpah defense,’ best exemplified by the individual who killed his parents, and then threw himself on the mercy of the court because he was an orphan.” Nothing today prevents hospitals or liability carriers from settling legitimate claims with patients before they file a court case, or from paying valid claims expeditiously. In fact, informal pre-trial settlements, where both parties voluntarily agree to take a case out of the civil justice system, are not only appropriate but currently resolve the vast majority of legitimate medical malpractice claims today. However, schemes like this, which tilt the legal playing field dramatically in favor of the health care industry, eviscerate the jury system and patients’ rights to adequate compensation, and protect the most dangerous hospitals and incompetent physicians, are deplorable.

Indeed, never in the history of this country has an administrative system turned out ultimately better for victims who ceded their right to trial by jury. Even if a program begins with good intentions, taking any compensation decision out of courts subjects it eventually to influence-peddling and future budgetary/solvency considerations that no lawmaker today can control. These problems are always resolved on the backs of more powerless victims, who gave up their legal rights with vague and unenforceable promises that are ultimately broken. Just look at what's happened to workers comp in this country. Slashed benefits, workers denied help. That is the lesson of history.

Good luck Maryland. Sadly, you’re going to need it.

Are Medical Malpractice ‘Experts’ Really This Bad?

Sometimes you have to wonder about the people in charge of messing with our medical malpractice laws. No offense, but they often seem either obtuse or malicious or both.

Here’s an example of obtuse. BMJ just came out with a study of so-called “defensive medicine,” the notion that doctors order unnecessary tests for the sole purpose of protecting themselves from malpractice suits. We’ve always believed this entire theory was poppycock. We believe most physicians are good doctors who order tests and procedures because they want to get it right, avoid error, and by the way, for the reasons that they legally certify to Medicare and Medicaid – because these procedures are medically indicated and necessary for the health of the patient.

Apparently, BMJ’s researchers have now made the brilliant finding that doctors who order extra tests and procedures have fewer malpractice suits. Well, people don’t sue unless they’ve been very hurt due to a preventable error, or at least they don't get very far in the process. So when doctors order more tests and fewer lawsuits result, it means there are fewer harmed patients with reason to sue. I mean, duh, right? 

But the study’s authors apparently can’t bring them to state the obvious. As the Washington Post reports, “The data does not demonstrate that higher spending caused lawsuits to decrease or reveal whether higher spending resulted in fewer medical errors.” Seriously?

But now for the malicious.

In Houston, Texas, a woman was “raped in her hospital bed by a doctor who she claims checked his phone afterward while she cried.”  But “the physician charged with assaulting her at Ben Taub hospital in November 2013, Dr. Shafeeq Sheikh, may get off scot-free in civil court.”

Here is part of the reason why.

Sheikh's employer at the time of the rape, [was] the prestigious Baylor College of Medicine.…

Baylor's lawyers have submitted to the court a proposed order to dismiss Sheikh from the case, as "mandated" by law. Baylor's attorney, Jeff McClure, declined comment.

The law he cited, in the "tort claims" chapter of the Civil Practice and Remedies Code, says that if a governmental unit and its employee are sued, the employee shall "immediately" be dismissed.

How is a doctor at a private medical college considered a government employee?

Baylor doctors staff Ben Taub, which is a public hospital owned by Harris County.…

In Texas, a limited government liability state … Baylor can argue it is immune to the claim altogether. Even if Laura's lawyers are successful in challenging that immunity, and she is granted an award, the most a municipality can be forced to pay is $100,000.

And it gets worse. “The Texas Supreme Court has ruled that rape in some circumstances is covered by medical malpractice laws.” And in Texas, that means virtual immunity for a rapist doctor. Specifically,

In 2003, as part of a sweeping tort reform package, lawmakers tweaked the definition of medical liability claims to include breaches in "standard of care" and safety. With some dissent, courts construed that definition to include sexual assault in the health care setting. Texas' medical malpractice statutes are considered among the most prohibitive in the country. Lawmakers severely capped damages for pain and suffering and set up expensive hurdles for potential plaintiffs. As a result of the law, Laura must pay to retain a physician expert to testify to the obvious fact that rape is a violation of acceptable standard of care.

"It should be offensive to every Texan, the idea that tort reform could be used to defend a rapist in about the most horrific crime that can be committed on a woman," [lawyer Jim Perdue Jr.] said.

But the "expert" who sponsored this law, "Rep. Joe Nixon, a Houston Republican … pushed back on the notion that his bill is responsible for the hurdles Laura faces in her civil action. That includes the provision that allows Sheikh and Baylor to claim government protections." So is he obtuse or malicious or both? Guess at this point it doesn't matter. Notes columnist Lisa Falkenberg:

Here's the sad truth, though: In Texas, right now, we have laws designed to protect doctors, to protect hospitals, to protect counties. In this case, those laws may end up protecting a rapist.

And what of the victim? Apparently, she's irrelevant.