Mississippi Litigation Review & Commentary : Mississippi Personal Injury Lawyer & Attorney : Phillip W. Thomas Law Firm : MS Litigation Review & Commentary

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The Healthcare Finance News is reporting that: “Fewer medical malpractice payments were made on behalf of doctors in 2009 than any year on record, according to the National Practitioner Data Bank.” And: “This finding contradicts claims that medical malpractice litigation is to blame for rising healthcare costs and that changing the liability system to the detriment of patients will not curb costs.”

The article contains statistics to back up the claims:

The value of malpractice payments was also the lowest since 1999. Adjusted for inflation, payments were at their lowest since 1992, a Public Citizen analysis of the NPDB shows.

According to the analysis, healthcare spending rose 83 percent from 2000-09, while medical malpractice payments fell 8 percent (both figures are in unadjusted dollars.)

A total of 10,772 payments were made on behalf of doctors in 2009, totaling $3.49 billion. That figure equals 0.14 of 1 percent of the Centers for Medicare and Medicaid Services’ estimated $2.5 trillion in overall U.S. healthcare spending for 2009.

Last year was the fifth consecutive year that the number of payments has fallen and the sixth straight year in which the value of payments has fallen, according to the analysis. In contrast, U.S. healthcare costs have increased every year since 1965, the first year the data was recorded.

Meanwhile, most valid med-mal claims are never filed:

Studies have found that injuries and deaths caused by medical errors dwarf the number of actual medical malpractice payments. For example, the Institute of Medicine found in 1999 that 44,000 to 98,000 people die every year due to avoidable errors.

The comments to  the article are also worth reading. In one comment a person with 25 years experience in med-mal claims states that there is no relation between healthcare costs and medical malpractice lawsuits.

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Today Ya’ll Politics linked to a Washington Examiner Op-ed story that attempted to link Mississippi’s judicial bribery scandal to the current health care debate. I have seen some dumb things written about the legal system. This may be the dumbest.

Try to make sense out of this quote:

There’s no reason why this situation should persist, except that the nation’s top trial lawyers continue to grease the skids in Washington, D.C., and state capitals, piling up money for Democratic politicians who in turn hinder the cause of lawsuit reform. A recent Examiner analysis of contributions from employees of the top 15 plaintiffs’ firms found that less than 2 percent of nearly $1.3 million they donated went to Republicans.

That’s why President Barack Obama and Democrats seek to prevent state-level legal reforms in their health care bill. It’s not just that the bill lacks tort reform provisions, it punishes states that adopt them by withholding federal money.

But those legal reforms are necessary. Otherwise, the natural conclusion is the world portrayed in “Kings of Tort,” the recent book by Alan Lange and former federal prosecutor Tom Dawson. The book describes how former tort baron and current federal prisoner Dickie Scruggs sued his way into a fortune and then began purchasing an entire state’s judiciary. Years before he was caught bribing two Mississippi judges, Scruggs had described as “magic jurisdictions” those places where verdict money was used to stack benches and juries.

This is another straw man argument for tort reform. But this one is worse than the norm.

Scruggs purchased “an entire state’s judiciary”? Really? Because I’ve read Kings of Tort, and that is not what the book says. According to the book, Scruggs tried to bribe two judges, one of who reported it to the feds and the other of whom is now in jail.

And frankly, the statement is a slap in the face of Mississippi’s "entire judiciary". Is the author really claiming that Scruggs purchased all the judges in Mississippi? Is he really that stupid?   

I do not believe that we have a corrupt judiciary in Mississippi. But even if we did, the solution to corruption in an elected judiciary would be:

1. prosecute corrupt judges; and/ or
2. have an appointed judiciary.

Not caps.

Politics in the U.S. is rife with corruption. My guess is that there is less corruption among elected judges than other elected politicians. But regardless, lawsuit caps do not even address judicial corruption, much less solve it.

Why would someone make this argument? According to some, the author of the article (David Freddoso) is a shill of the political right (aka Big Business). Here is an excerpt from a review of Freddoso’s book that attacked President Obama:

David Freddoso's new book, The Case Against Barack Obama: The Unlikely Rise and Unexamined Agenda of the Media's Favorite Candidate is a badly written hatchet job, full of errors and distortions and smears. The author, who works for the right-wing National Review and published his book with Regnery (which printed Unfit for Command, one of the Swiftboating attacks on John Kerry in 2004), simply fails to prove his key assertions, preferring to rely upon a bunch of false attacks, McCarthyist-style denunciations of Obama's associations, and extreme conservative attacks on abortion rights, all of it padded with lengthy digressions on topics unrelated to Obama and his record.

Freddoso's embarrassing excuse for a critique has received virtually no critical attention, thanks to the right-wing press promoting it and the compliant mainstream outlets. A fawning story in the Politico called Freddoso's book "serious" and "a fact-based critique." According to the Politico, it occupies "a small island in the often-shrill sea of criticism of Obama." In reality, Freddoso's book is one more example of that polluted sea of criticism, filled with numerous factual errors, unproven innuendo, guilt by association attacks, and lunatic conspiracy theories that would be laughable if not for the seriousness of these false accusations.

Freddoso’s latest straw man hatchet job that implicates the Mississippi judiciary is both out of line and dumb.

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In an article for the Atlantic, legal analyst Andrew Cohen calls tort reform anti-democratic, but ingeniously marketed by corporate America:

Supporters of tort reform, invariably corporatists and others who believe in this self-defeating supply-side notion of justice, have scammed or otherwise brainwashed millions of Americans into thinking that tort reform will save them from despicable "trial lawyers," a convenient target group in this ever-litigious world. But no 'trial attorney" ever went into the jury room and voted for a large verdict against a greedy corporation which purposely hid health risks from its customers. No "trial judge" ever put a gun to a foreperson's head and made that man or woman sign off on a big reward against an environmental polluter or tobacco company or maker of unsafe toys.  

Personal experience in talking with clients and prospective jurors in voir dire during trials makes me conclude that average citizens do not understand tort reform. Most people think that tort reform addresses frivolous lawsuits instead of lawsuits involving the worst possible conduct. People do not understand that:

It takes control over damage awards in many civil cases away from local judges and juries and gives them to state politicians, who often are just shills for their corporate campaign contributors and lobbyists. It protects corporations from punishment for their worst excesses. It diminishes good incentives for corporate carefulness and increases bad incentives for shoddy work and services.

In order to sell tort reform, corporate America applies a bait and switch commonly referred to as a “straw man” argument. Barry and Soccio define the straw man attack as follows in their book Practical Logic 104:

The straw man fallacy is an argument that so alters a position that the result is easier to attack than the original and yet claims that it has provided grounds for attacking the original.

Corporate America claims that tort reform is the solution for frivolous lawsuits. But "frivolous lawsuits" is their straw man. They use frivolous lawsuits as their straw man because what they really desire is their offered solution: damages caps that reduce their liability for wrongdoing.   

Why do tort reform’s proponents push a solution that does not apply to the “problem” of frivolous lawsuits? Because frivolous lawsuits is not really the problem for corporate America. They can squash a frivolous lawsuit like a bug. What they can’t squash without damages caps is their liability exposure for terrible conduct such as covering up a product’s dangerous defect. And they know that the public wouldn’t go along with it if the public knew the truth.

The reason that people do not understand tort reform is because proponents of tort reform do not want them to. Tort reform proponents invariably talk about merit-less lawsuits when selling tort reform.

So they pull a bait and switch using a frivolous lawsuits straw man. They talk about despicable trial lawyers and frivolous lawsuits and push through damages caps that don’t even address their stated “problem.”  It’s a ploy—but it’s a smart one to get what they want.