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Tort Reform Reality: A War of Attrition by Michael Bennett

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Introducing Contributing Author Michael Bennett, President, The Coalition For Patients’ Rights

Rather than initially launching an all out assault, conducting war by using a slow, incremental wearing down of personnel and resources, military leaders throughout the ages have often used war of attrition as an effective method to defeat an enemy. Embargos, isolation, freezing of assets, periodic bombardment of strategic areas are some of the tactics that are used in this military strategy.

During World War II, General Douglas MacArthur employed these tactics against the island fortress of Rabaul, where the combined forces of Imperial Japan had amassed huge quantities of armaments, war planes and supplies. It was a strategy that proved successful in defeating an enemy of far superior numerical and material strength.

The history, strategy and tactics of the tort “reform” movement are strikingly similar to a classic war of attrition.

On the heels of the Vietnam War and its associated widespread violent protests, the Civil Rights Movement, the “Pill”, Valium, and the Iranian hostage crisis, America was ripe for a rightward swing of the political pendulum.

In 1980, Ronald Reagan was elected President, in part, by promoting a concept of “personal responsibility”.

The concept could not be easily dismissed as mere rhetoric or partisan political propaganda. Accountability is a fundamental individual and societal concept to most Americans. And after all, it was JFK who said: “Ask not what your country can do for you; ask what you can do for your country.”

With George Bush the 1st, and Vice President Dan Quayle leading the charge, the “personal responsibility” slogan morphed into the “tort reform” movement and became a major plank of the Republican Party’s platform.

Seeing the obvious, big insurance, big “Pharma”, big tobacco and big medicine lost no time and spared no effort in supporting the Republican agenda. A number of individuals seized the opportunity to further their already long-time financial interests by forming “grass-roots” groups which received significant support from these massive corporations.

The axis had thus been formed and the war against victims and plaintiffs attorneys was clearly underway.

Like most wars, the strategy of the tort “reform” movement began with the identification and subsequent demonizing of the “enemy”.

Victims of professional malpractice were drawn into caricatures of corrupt, hapless and lazy people looking to unjustly blame someone for their troubles while aiming to get rich from the deep-pockets of the lifesaving pharmaceutical and innocent insurance companies.

Supposedly, masses of these opportunistic loafers were lining-up to get undeserved compensation for contrived injuries through a system that was being hugely exploited by trial lawyers. This, the “personal responsibility” folks turned tort “reformers” said, was wrecking the entire medico-economic system and creating a crisis of access to medical care.

Although the campaign to portray victims of medical negligence in such an odious light continued, the tort “reformers” understood that only so much mileage could be gained from this tactic. The public, to a large extent, would continue to hold a sympathetic view of victims and so the main target of the “reformers” attacks became the trial lawyers.

The “reformers” exploited an age-old portrayal of lawyers as greedy and shrewd “shylocks”. This grotesque characterization of the members of an honorable profession is reminiscent of the dastardly work of infamous propagandists from nefarious regimes who used the same technique prior to initiating attacks on their enemies.

To Americans, whose view of medicine was greatly influenced by such fatherly and beneficent images such as “Marcus Welby, MD”, and most of whom had little, if any, exposure to the justice system as victims of medical negligence, the demonization strategy found fertile ground in the American psyche and the tort “reform” movement gained momentum.

By creating greater distances between victims and their only advocates-plaintiff attorneys- the tort reformers intended to reduce negligence lawsuits by limiting victims’ access to the court house.

Understanding that most victims do not have the financial resources needed to pay for expensive and protracted litigation, and therefore the contingency system being the only vehicle by which they can hope to gain access to the court house, the reformers launched a campaign aimed at reducing victims’ compensation through legislation. By imposing arbitrary caps on “non-economic” damages, the tort reformers hoped to reduce the volume of negligence cases by forcing attorneys to limit their cases to the most egregious and therefore the most profitable ones. In other words; through attrition, reduce malpractice lawsuits by effectively denying entrée to the courts for the moderately and minimally injured, the poor and the elderly, and others whose cases would not generate large settlements or judgments.

Knowing that even clearly negligent doctors, healthcare workers or institutions can easily draw from vast reservoirs of potential experts, while victims’ advocates face the daunting task of finding experts who are willing to criticize their associates and potentially incur being ostracized or worse, the reformers moved to further limit victims’ access to justice by steadily and incrementally increasing the burden on victims through more and more unreasonable restrictions on expert witnesses that effectively only applied to plaintiff attorneys. The intended effect of these restrictions was to even further limit victims’ access to the courts.

While the eight years of the Clinton Administration provided some relief from the attacks of the tort reformers, the election of George Bush the 2nd renewed, with vigor, the campaign against victims of medical negligence and plaintiff attorneys.

Using a bevy of tactics, such as mandatory arbitration, “apology” laws, more extensive filing regulations, venue restrictions, limiting attorney fees, a stepped-up campaign of propaganda about “frivolous lawsuits”, “runaway jury awards”, mandatory structured settlements, the costs of “defensive medicine” and the Machiavellian ruse that doctors were leaving the professions, etc., the reformers launched a multi-faceted “strategic bombing” intended to even further isolate victims, denying yet more and more victims’ access to justice, and to poison the jury pool.

Ironically, by sewing a culture of fear, the tort reform movement itself has done more to promote “defensive medicine” than anything victims or their advocates could have done.

Despite the multiplicity of “reforms” that have been enacted in many states and strong evidence that these have had no appreciable effect on either malpractice insurance rates or access to medical care, the tort reform movement is now engaged in attempting to deny victims any and all access to the jury system through the establishment of “Health Courts”.

A euphemism for undermining the constitutional right to a jury trial, so called “Health Courts” would force victims, who live in anguish and grief and who crave for justice, into a forum designed and influenced by people from the very industry that has made them victims.

Another shrewd device being promoted by those who are liable for causing injury and death is the so called “3R’s” program.

Recently initiated by the Colorado- based Copic Insurance Company, the “3R’s” stands for “Recognize, Respond and Resolve”. Similar to the “Sorry Works” campaign, the “3R’s” is designed to disarm victims by offering them recognition that they are indeed victims and free medical care for their sustained injuries in exchange for waving their right to seek judicial remedy. The strategy is that victims will opt for the “sure thing” rather than risk loosing all by going to court.

The problem, of course, with the “3R’s” approach is that there is no guarantee that victims will get competent, comprehensive and sustained care for their injuries and that they and their families will receive no compensation whatsoever for the pain, suffering, loss of work, etc., that they sustained through the fault of others. In a military setting, this is comparable to telling an enemy that it is better to surrender and get a hot meal than to fight and risk destruction. It is basic psychological warfare.

It’s clear that a war of attrition has been and continues to be waged against victims of medical negligence. But unlike General MacArthur, who was motivated by “Duty, Honor, Country” and whose enemies were the forces of barbaric imperialism, the tort reformers’ war is motivated by control, avarice and corruption. And their enemies are the most vulnerable of society.

Considering all that the “reformers” have done and are trying to do to deny victims access to justice and that there are approximately a reported 15 million incidents of medical error every year, (accounting for huge numbers of victims, 1.5 million from medication errors alone, and millions more victims of preventable hospital-spread disease), the victims of medical negligence have had to drink a double portion of a poisonous brew.

While trial lawyers associations have fought vigorously and valiantly to protect the rights of victims, and other advocates, many of whom are victims themselves, have struggled to defend against the incessant attacks of the “reformers”, little-by not-so-little ground is constantly being lost.

Tort “reform” proponents are well-funded and well-organized. They apparently will not be satisfied until practically all access to the courts and just compensation is denied victims.

It is time for victims and their advocates to mount an aggressive campaign in the struggle for justice and true accountability. Trial lawyers associations, victims’ rights groups and other public advocacy organizations need to come together under a single umbrella to create a united, organized and strong front. If those who fight against victims and their advocates can accomplish this, victims and victims’ advocates who far outnumber the reformers and who stand on the side of compassion, fairness and justice can certainly do so.

Victims and their advocates are fighting a defensive war. But by creating a strong united front using the strategy that General MacArthur employed in the isolation and reduction of Rabaul for the ideals of freedom and justice, we can turn the tide on the tort “reformers” and ultimately put them on the defensive, where they so rightfully belong.

Michael Bennett

President

The Coalition For Patients’ Rights