Texas has been the epicenter of so-called tort “reform” for decades, a land where an aggressive campaign on behalf of a corporate lobby bent on immunity from acts that cheat, maim, or kill has radically reshaped and deformed its civil justice system. The framers of the United States and Texas constitutions, who enshrined trial by jury as a fundamental right and believed in checks and balances, would not recognize the current Texas legal system, which perverts the rule of law into an instrument for the moneyed and powerful, as well as divorces it from any concept of justice.

The report says those who have seen their rights dangerously restricted include “patients, families, workers, homeowners, senior citizens, policyholders, and small business owners,” and says Perry’s reforms “have closed the courthouse door on many Texas families.”

The attacks on Texans’ rights began in 2003 with the implementation of a cap on compensation for non-economic damages caused by medical negligence, including such things as loss of mobility, loss of fertility, and loss of a parent or spouse. The fixed $250,000 cap is identical to what California has under its 1975 Medical Injury Compensation and Reform Act (or MICRA). The Texas Watch explanation of the impact of that cap fits California as well:

The noneconomic damages cap, which is not indexed to inflation and thus worth less each year, hits those without wages and economic damages particularly hard, making even the most clear-cut malpractice cases on behalf of the elderly, the young, the disabled, and stay-at-home parents financially impossible to pursue for many given the high cost of retaining medical experts, which comprise the bulk of litigation expenses. The merits of one’s case are far outweighed by their socioeconomic status. Under Texas law, the value of one’s life is essentially reduced to the value of their paycheck. You are what you make.

The report also details the consequences of the “loser pays” law the Texas legislature passed earlier this year, in which even Texans who have been harmed and win their cases could wind up paying:

…in the twisted reality of Texas jurisprudence, winners may actually be forced to pay under the arcane offer of settlement statute, which was bolstered in HB 274 to further tilt the scales against victims by potentially wiping out the entirety of a judgment awarded by a jury. In other words, a plaintiff could bring a valid claim, have a jury rule in their favor and award damages – only to be forced to pay the wrongdoer’s legal costs in the end, erasing their entire judgment in the process.

This is a tilted, one-way process where the defendant has the sole option of triggering this provision. It is intended to create even more risk for plaintiffs by forcing them to make a decision in the dark – before the extent of the defendant’s wrongdoing has been uncovered, a jury has been impaneled, or evidence has been presented. This introduces the prospect of additional financial harm if they refuse to accept hush money from the defendant in the form of a settlement offer. As a result, wrongdoers are able to forcibly purchase the silence of their victims, defeating public accountability and endangering other families in the process.

This type of fee-shifting is anathema to the open courts envisioned originally by our Founders and violates some of the deepest traditions in American law.

The report characterizes the “tort reform” efforts as offering “a false choice between jobs and justice” that has made the state “more dangerous for Texas families.”

–J.G. Preston

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In what it calls a “bipartisan poll,” the ILR suggests that small businesses in the U.S. are pessimistic about the nation’s economic future and believe the economy is destined to remain stagnant for the next year. Two thirds contend the government is taking actions better left to business and individuals, and three quarters of business people feel it will be bad for the economy if Congress passes laws allowing those darned lawyers to file more lawsuits. Two thirds believe lawsuits are on the rise and will continue to balloon in the coming years.

Whew. Hold the mayo, and give me a big scoop of pessimism.

We all know that old Mark Twain saying that “figures don’t lie, but liars figure.” Was he envisioning the Chambers ILR as he penned that enduring insight?

Certainly the folks who answered the call of duty to take the phone and Internet survey the last two weeks of August by Public Opinion Strategies freely offered those gloomy views of the economic world and the state of civil litigation — at least they felt that way once they were coaxed by the proper polling question. But what does such artifice really tell us?

Perhaps that sometimes clever survey questions and ill informed answers seem to matter more than the truth.

Here’s the truth: A poll digging into the opinions of business owners about the number of lawsuits in America seems downright silly given that the number of lawsuits in America is an actual number that can be discerned simply with a bit of digging.

The facts are that tort filings — the type of civil litigation reputedly bedeviling business — have declined 24% during the decade preceding 2007. That’s according to the National Center for State Courts, an outfit that prefers to deal in facts instead of using figures to fib. Medical malpractice claims, meanwhile, declined 9% and product liability cases fell 4%. Auto cases fell by 23%.

It gets better. The Bureau of Justice Statistics found that the number of tort trials in the nation’s 75 largest counties fell more than 31% and the median damage awards in those counties dropped 18%.

There was one type of litigation that rose during the same period — disputes over contracts, which typically involve businesses suing other businesses, jumped 37%.

So much for the sky-is-falling survey by the U.S. Chamber.

Add to all this the chamber’s use of small business people as a fig leaf to hide its own true purpose. The U.S. Chamber is anything but a representative of small business, according to the group U.S. Chamber Watch. The vast majority of the chambers funding comes from gigantic corporations, whose interests are quite different than those of small businesses. During the health care debate, for instance, the chamber took money from big insurance companies and lobbied against regulations that would have reduced the cost of insurance to small business owners. The same thing happened during the debate over Wall Street reform, with the chamber opposing changes that could have helped protect small business.

Moreover, the chamber’s claims that it has 3 million members have been undercut by reality — a Mother Jones investigation pegged the number at one-tenth that, about 300,000.

So let’s listen to Mark Twain and do our best to cut through the U.S. Chamber rhetoric meant to shield big business from legal accountability when wrong is done. Civil justice and the American public will be safer for it.

–Eric Bailey

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“Hiatus” is the word. And this seems like the perfect song for the moment.

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Under the federal Amtrak Reform and Accountability Act of 1997, the most Metrolink and Connex Railroad, which had been contracted to operate Metrolink’s trains, can be liable for in damages from that incident is $200 million — which, in fact, the two entities told a judge Wednesday they are willing to pay to settle the outstanding claims.

That comes out to an average of $1.3 million per victim, before legal fees. A paltry sum given the apparent gross negligence of the engineer, and the medical bills and other damages incurred by those who lost family members, or who were injured themselves.

The proposed settlement in the Metrolink crash could lead to a court challenge over the liability cap, which would be good, Better, though, would be for lawmakers to follow up on their previous criticisms and remove the limit. As we’re seeing in the Gulf oil disaster, such limits only benefit the guilty.

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The short version is Stossel thinks trial lawyers are “parasites.” His word. Why? Well, that’s not really clear, but it seems to come down to lawyers getting a slice of the settlements when juries agree with allegations that doctors, corporations and other defendants erred and damaged the plaintiffs in the process. (And I doubt Stossel works for free, either).

I won’t waste much space on this, since Stossel’s credibility as an independent voice is getting sliced to the core elsewhere. And it is curious that the two lawyers he mentions — John Edwards and Geoffrey Feiger — are Democrats. Republican plaintiffs’ attorney are okay?

It’s hard to argue with conservative voices who insist on people taking responsibility for their actions. Couldn’t agree more. Which is what makes it all the more bizarre when conservative voices argue against doctors, corporations and other entities being held responsible for their mistakes. Lawyers are the last line of defense for the wronged, and even with the inherent problems in the legal system they force accountability from those who pollute, and those who injure or kill people through malpractice, or by putting greed ahead of safety.

Stossel makes it sound as though doctors prescribing an extra test is a bad thing. I’ve never gone under the knife or had a serious illness, but I can tell you I would much prefer a doctor who works in fear of making a mistake than one who feels he or she can gamble with a life with impunity.

And the same goes for businesses that weigh legal exposure as part of a cost-benefit analysis for projects. Only the naive believe corporations operate with the public good in mind. And it’s lawyers with access to the courts that keep them (somewhat) honest.

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Survey results published in the Archives of Internal Medicine this week found that 91% of physicians claim they run unnecessary tests on patients for fear of being sued if they don’t.

Whelan goes on to conclude:

If lawsuits are rarely frivolous, as lawyers claim, why would 91% of doctors admit in a survey that they order unnecessary tests to avoid being sued?

I don’t mean to pick on Whelan; he’s not the only writer to frame the story in this way.  But one problem with this is 91% of doctors did not admit they ordered unnecessary tests.  The actual question they were asked in the survey was:

“Do physicians order more tests and procedures than patients need to protect themselves from malpractice suits?”

As Associated Press reporter Lindsey Tanner pointed out, “The survey didn’t ask doctors if they personally ordered needless tests because of malpractice concerns, or if it is the major reason for overtesting.”  Nor were the doctors asked directly if they themselves knew anyone who had ordered unnecessary tests, although I guess they would be lying if they answered “yes” without actually knowing someone who had done so.

Tanner also described the methodology of the survey.  While the physicians surveyed were chosen at random, a significant number of them did not respond:

[Survey co-author Dr. Tara] Bishop and colleagues randomly selected doctors for the survey from an American Medical Association list of U.S. doctors.  A total of 2,416 were mailed surveys starting in June last year; half [1,231, to be exact] sent in responses and data collection ended in October.

Given the passion that seems to surround this issue in the medical community, it’s possible that doctors who wanted to take a jab at the malpractice system would be the ones most likely to return those surveys.  While the doctors who were sent the survey may have represented a statistically valid sample group, the doctors who actually returned the survey most certainly do not.

At any rate, after looking at the actual question that was asked and the number of doctors surveyed who responded, it’s not accurate to assert “91% of physicians claim they run unnecessary tests on patients for fear of being sued if they don’t.”  It should be, “91% of physicians who returned a survey claim some doctors run unnecessary tests on patients for fear of being sued if they don’t.”

In the same Archives of Internal Medicine survey, 91% of the doctors who responded answered “yes” to this question:

“Are protections against unwarranted malpractice lawsuits needed to decrease the unnecessary use of diagnostic tests?”

Listen, no one likes to be accused of doing their job badly, yours truly included.  No one likes having to spend money on insurance of any sort, let alone insurance against doing their job badly.  No one likes being sued or having to spend money on legal fees, either.  We get that.  It’s easy–and understandable–for doctors to hate the malpractice system.  Especially those doctors who don’t make mistakes.  Just as I would rather not have fire insurance, since my house has never burned down.

On the other hand, mistakes are made, even if the vast majority of doctors are error-free the vast majority of the time.  And those mistakes cause real harm to real people through no fault of their own.

Of course, no doctor would say victims of “real” malpractice shouldn’t be compensated for their injuries (although they may question whether a jury should have the power to determine the compensation, and they may advocate for limiting the amount of compensation).  It’s all those “frivolous” malpractice suits that cause the problems and run up the insurance bills.

● “According to a study by the Harvard School of Public Health, 40 percent of medical malpractice suits filed in the U.S. are ‘without merit.’” — Rep. Lamar Smith (R-Tex.), ranking Republican on the House Judiciary Committee, on Politico.com, Oct. 1, 2009 (an adaptation of a piece that originally appeared in his hometown San Antonio Express-News on Sept. 17, 2009)

● “Though Harvard School of Public Health researchers set out to prove in a 2006 study that medical malpractice litigation really isn’t a problem, their integrity compelled them to publish the pesky fact that about 40 percent of malpractice lawsuits filed each year in America are ‘groundless.’” — Darren McKinney, American Tort Reform Association, in a New York Times “Letter to the Editor,” Sept. 27, 2009

● “A recent Harvard study revealed that 40% of malpractice suits are frivolous, leading to 15% of the payouts.” — Dr. Marc Siegel, assistant professor at NYU Langone Medical Center, New York Daily News, Sept. 9, 2009

While these writers go on to argue that the Harvard study shows the necessity of “tort reform,” the researchers call for no such thing.  Rather, the authors of the study (“Claims, Errors, and Compensation Payments in Medical Malpractice Litigation“) wrote they reached the conclusion that “portraits of a malpractice system that is stricken with frivolous litigation are overblown.”  (Harvard’s news release about the survey when it was published carried the headline, “Study Casts Doubt on Claims That the Medical Malpractice System Is Plagued By Frivolous Lawsuits.”)

The authors went on to write:

The profile of non-error claims we observed does not square with the notion of opportunistic trial lawyers pursuing questionable lawsuits in circumstances in which their chances of winning are reasonable and prospective returns in the event of a win are high.  Rather, our findings underscore how difficult it may be for plaintiffs and their attorneys to discern what has happened before the initiation of a claim and the acquisition of knowledge that comes from the investigations, consultation with experts, and sharing of information that litigation triggers. (emphasis added)

In other words, plaintiffs often need to file a claim just to get the information necessary to determine whether to proceed, and often once that information is revealed plaintiffs realize they don’t have a legitimate claim…and don’t proceed with the lawsuit.  Those cases are still included in the 40 percent of claims that were determined to be “without merit” (nearly all of which were determined not to have involved medical error).

The authors wrote, “Eighty percent of claims involved injuries that caused significant or major disability (39 percent and 15 percent, respectively) or death (26 percent).”  While some of these claims were determined not to involve medical errors and thus could be characterized as “frivolous” under the definition of the word in law (“present[s] no rational argument based upon the evidence or law in support of the claim”), the injuries can hardly be described as “frivolous” the way most people use the word (“of little weight or importance…lacking in seriousness”).

It’s true some plaintiffs in the Harvard study received awards in cases that were characterized as “without merit,” but the study found an even greater number of plaintiffs whose injuries did result from medical error and did not receive compensation.  Or, in the words of the study:

Payment of claims not involving errors occurred less frequently than did the converse form of inaccuracy — nonpayment of claims associated with errors.

If the malpractice system were “fixed,” with all plaintiffs who deserved compensation receiving it and no other plaintiffs winning awards, the amount paid to medical negligence victims would actually be greater than it is today.  Again, quoting from the study:

One in six claims involved errors and received no payment.  The plaintiffs behind such unrequited claims must shoulder the substantial economic and noneconomic burdens that flow from preventable injury.  Moreover, failure to pay claims involving error adds to a larger phenomenon of underpayment generated by the vast number of negligent injuries that never surface as claims.

What, there’s a “vast number of negligent injuries that never surface as claims”?  But I thought this is a litigious society where people look for any excuse to sue?  Not quite; the authors of the Harvard study write “research has established that the great majority of patients who sustain a medical injury as a result of negligence do not sue.”

And as long as we’re on the subject, why don’t we bust another myth, that juries are “out of control” and merely rubber-stamp victims’ claims.  The Harvard researchers found plaintiffs prevailed in only 21% of verdicts; furthermore, a majority (57%) of claims that were decided by a jury and did involve medical error resulted in no compensation for the victim.

Then there’s the whole other issue of whether limiting compensation to malpractice victims actually leads to lower costs for patients or for taxpayers in general, or just adds to profits for insurance companies and, to a lesser extent, doctors.  And the question of how often those “unnecessary tests” find a condition that needs to be addressed (of course, then they wouldn’t be called “unnecessary,” would they?).  But those will have to wait for another time.

–J.G. Preston

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