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Michael Bennett
Michael Bennett
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Tort Reform: A War of Attrition

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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 this strategy 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 tactics and apparent strategy 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 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 so called “grass-roots” groups which in reality were/are closely linked and funded by these massive corporations.

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

Like most wars, the strategy of the tort “reform” movement began with the identification and 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 medical and pharmaceutical industries, and the innocent insurance companies.

Supposedly, masses of these opportunistic loafers were lining-up to get undeserved compensation for contrived injuries through a faulty system that was being hugely exploited by trial lawyers. The “personal responsibility” folks turned tort “reformers” said this 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” realized 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 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 tactic found fertile ground in the American psyche and the tort “reform” movement gained traction.

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.

Knowing 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 colleagues 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, which effectively only applied to plaintiff attorneys. The intended result of these restrictions was, of course, 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”…the cost of "defensive medicine", mandatory structured settlements, and the Machiavellian ruse that doctors were leaving the professions, etc., the reformers launched a multi-faceted strategic bombing intended to even further limit victims’ access to justice while poisoning 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 trying to deny victims any and all access to the jury system through the establishment of so called “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 victimized them.

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

Initiated by the Colorado based Copic Insurance Company, the “3R’s” stands for “Recognize, Respond and Resolve”. Similar to the “Sorry Works” campaign, “3R’s” is designed to disarm victims by offering them recognition that they are indeed victims and free medical care for their injuries. The strategy is that victims will opt for the “sure thing” rather than risk loosing all by seeking justice through the legal system.

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 or that they and their families will receive appropriate compensation for the pain, suffering, loss of work, etc., that they endure 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, whose war strategy was motivated by “Duty, Honor, Country” and whose enemies were the forces of barbaric imperialism, the tort reformers’ war is motivated by power, avarice and moral corruption, and their enemies are victims and victims’ advocates.

Considering all that the “reformers” have done and are trying to do to deny even more victims access to justice and to just compensation, and that there are approximately a reported 15 million incidents of medical error every year, which account for huge numbers of victims (1.5 million from medication errors alone, and millions more from preventable hospital-spread disease, to name just two categories), it is no wonder that victims view their campaign as downright evil.

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 has been 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 act united, 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 have been fighting a defensive war. But by creating a strong united front we can turn the tide on the tort “reformers” and ultimately put them on the defensive, where they so rightfully belong.

Fixing our healthcare system and restoring the relationship between physicians and patients will only be achieved with accountability, transparency, and justice.

Michael Bennett

President

The Coalition For Patients’ Rights

12 Comments

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  1. Nick Carroll says:
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    Welcome aboard Michael!

  2. Jane Akre says:
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    When Michael Bennett writes something – I read it.

    He is a truly gifted writer and thoughtful advocate for patients and for all of us.

    Great addition to InjuryBoard!

    Welcome Michael

  3. Mike Bryant says:
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    Very good history lesson. Thanks

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    Nick, Jayne and Mike.

    Thank you for your kind words.

    It’s a privledge to be fighting this battle together with so many truly good folks. You all represent the ideals that made this country great. By using your talents, training and experience, you stand in the vanguard of the fight for patient safety, patients’ rights and civil justice.

    I encourage all advocates to get involved in this vital struggle and to join Injury Board.

    “We are all in this together, by ourselves.”
    ~Lily Tomlin

  5. Eric Anderson says:
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    This comment is posted on behalf of Ted Clarke, M.D., Chairman and CEO, COPIC

    Besides its overheated and extreme rhetoric, Michael Bennett’s column on tort reform has factual errors that bring into question the foundation of his claims.

    Mr. Bennett calls the 3Rs program “another shrewd device being promoted by those who are liable for causing injury and death.”

    He adds, “Similar to the ‘Sorry Works’ campaign, ‘3R’s’ is designed to disarm victims by offering them recognition that they are indeed victims and free medical care for their injuries, in exchange for waving their right to seek judicial remedy.”

    This is wrong. Patients who participate in COPIC’s 3Rs program retain the right to pursue legal action. No waiver is sought or required as a condition of receiving program benefits.

    The Colorado Patient Safety Coali­tion recognized COPIC’s 3Rs Program at its Eighth Annual Patient Safety Conference last year. The program was honored for its innovation, promotion of cultural change, and success in improving patient safety in Colorado.

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    I stand corrected. COPIC does not REQUIRE that a waiver be signed by an injured patient.

    However, I invite readers to examine the report written by Dr. Richert Quinn, who is Medical Director of the 3Rs program, and judge for themselves the intent of the “3Rs” program.

    In Dr. Quinn’s report, readers will find, among other things, the following “Case Study” as an example of the “success” of the “3Rs” program.

    “65 y/o female undergoes attempted lap assisted vaginal hysterectomy
    Path=minimally invasive Grade I endometrial cancer
    Path=segment Left ureter excised
    Options discussed, underwent Left Nephrectomy
    Reimbursed airfare from Massachusetts for son and $150 in gardening bills
    Physician/patient relationship preserved”

    In another example of the program’s “success”, the “3Rs” medical director cites the following case of a 55 year-old judge who “offered to sign release”:

    “55 y/o judge undergoes takedown gastric bypass, ventral hernia repair, develops enterocutaneous fistula
    Missed 6 months work, underwent 8 procedures, extensive parenteral nutrition
    Reimbursed $26,000 for loss of time and unpaid medical
    Patient very grateful; offered to sign release
    Maintains relationship with physician”

    Once a victim agrees to participate in the “3Rs” program, it becomes unlikely that they will ever be able to retain an attorney, as their chance for additional compensation becomes significantly diminished. And by the time that a victim may discover that they are not being treated competently or thoroughly, the statute of limitations could very well have run out.

    The “3Rs” program is clearly designed in the best interest of those who are liable for negligence, not the victim. And the bottom line is money.

    The complete report can be viewed at: http://www.sorryworks.net/files/3rsaosreq.ppt

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    Regarding the Colorado Patient Safety Coalition:

    This coalition is largely supported by the medical industry, hospital association, medical society, and insurance companies INCLUDING COPIC!

    To borrow a phrase from COPIC’s CEO, “…that brings into question the foundation of his claims.”

    Donors to the Colorado organization can be viewed here:

    http://www.coloradopatientsafety.org/investors.htm

    For a more accurate picture of the medical culture in Colorado and what victims really face in the tort system there, readers are invited to visit the web site of the Colorado Citizens For Accountability: http://www.coloradocitizensforaccountability.org/

    The CCA is a TRUE consumers organization founded by David and Patty Skolnik, who lost their 25 year-old son, Michael, through horrific medical negligence.

    Since Michael’s passing, the Skolniks have dedicated their full attention to the issues of patient safety and patients’ rights. I’m sure that they will not bestow any awards on the COPIC insurance company for the “3Rs” program!

  8. Wayne Willoughby says:
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    What a joke. An insurance executive claiming to grab at the truth!. Pleeeeese.

    The obvious purpose of the 3 Rs Program is to benefit the insurance company and negligent health care providers, not the patient. COPIC’s own powerpoint on the program states that the 3 R’s Program does not apply if the patient wants to have his or her own attorney review the compensation being offered. I wonder why a big ole insurance company would want to keep the victim unrepresented by counsel? Humm?

    Also, the powerpoint states that any payments under the plan do not get reported to the national practitioner’s data bank. Gee, that sure advances patient safety and helps to educate health care consumers about which doctors have a tendency to provide bad medical care or suffer bad outcomes.

    The bottom line is that to tort reformers (including insurance companies) it is never about justice, it is never about patient safety… it is only about saving a buck.

  9. Lori Nerbonne says:
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    The problem that I think most people fail to fully understand is that when medical harm does occur, it is the very lack of accountability from the system itself that drives people to seek justice from the courts.

    Hospitals offer nothing but silence & retisence, physicians refuse to meet with grieving families, state medical boards act on behalf of protecting physicians interests instead of patient safety, highly paid healthcare lobbyists with direct access to lawmakers then make it very dificult and too costly to gain access to the courts for any form of justice(malpractice review panels), and state healthcare facility licensing departments that are so underfunded that even basic hospital oversight is not a reality.

    Only those who have walked in a harmed patients’/famlies’ shoes can fully appreciate these realities. Complete lack of accountabilty for causing and then covering up preventable deaths in our hospitals is the big elephant in the room that is being sidestepped in favor of protecting hospitals’ reputations.

    It was unimaginable to me that covering up a preventable death is perfectly legal. This wreckless reality is true if you are a physician or hospital administrator, and it is the object of debate in medical journals across the country; whether they “should” or “shouldn’t” disclose.

    Then to find out that there is nothing you can do about it because the system has been so fortified by years of successfuly lobbying and legislation that serves to re-victimize the grieving family.

    The percentage of harmed patients that actually sue is something like one percent(?) and even less who win….and yet medical errors are a leading cause of death in the U.S.

    Those statistics speak volumes about the power that the healthcare industry has over Americans and the fallacy of the need for tort reform.

    I have a great deal of respect for most all physicians and healthcare providers. This argument is not about ‘us versus them’. It’s about honesty, justice, and accountabilty.
    It’s about a system that has been corrupted by too many of those in charge of it and lawmakers who put corporate interests before public safety and justice.

  10. Adam Levine says:
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    Thank you all for a fascinating perspective. Let me begin with my perspective that unfortunately, as a society, we seem to forget that there is no free lunch. About me, over the past few years I have felt as if I am existing in the shadows between two worlds. I decided three years ago to go to law school because I had been incapable of fixing or improving medicine from the inside for about ten years. Over that 10 year period, I believe, I have seen a significant deterioration in the quality of medical care.

    Who to blame? As a doctor it was easy to blame the lawyers. In conversations with my lawyer-friends it was equally easy to blame the insurance companies. Now, as a part-time law student, working two full time jobs, one as a doctor, the other as a law clerk, I find it is easy to blame every one, primarily the insurance companies. In fact, I would pin the blame equally on those corporate types running hospitals; where even not for profit is profitable.

    Years ago, I would never have considered consulting for a Plaintiff’s firm. Approaching law school I gained a more balanced perspective and began to consult with both Plaintiff’s and Defense firms. Recently I did an intake on a medical malpractice case (one that I felt clearly rose to the level of malpractice), with my future law partner, and was part of the decision not to accept the case because of economic considerations. I lost sleep! Where was the justice? Where was the deterrence for clearly wrongful action? Was there no corrective justice? Was there no efficiency?

    I have listened to many sides beat the drum for tort reform over the years. I now question their criteria for reform and, worse, I question their motives. I know why I went into medicine and, now law, why did they?

    Attorneys and Physicians are different; a difference that is part of their indoctrination, education and training. If the Attorneys reading this would refer back to their introductory Torts Casebook; really, weren’t the number of medical malpractice cases disproportionately represented? And the doctors? I remember my orientation included projected kodachromes (It is truly scary to remember the first version of power point and making them into projection slides) of the local medical malpractice lawyers who seemingly roamed the halls of the Medical University in search of loose tongues, tired residents and broken patients.

    Are we really that different? Attorneys and Physicians both think differently and approach problems differently. I truly believe that neither would willing cause a patient or a client harm. However, Attorneys practice a calling and a business. They attempt to minimize their professional liability but look upon it as a business decision. Physicians equally practice a calling but, calling it a business, for most, is distasteful. Accordingly, professional liability is not part of a business, but is rather an affront to their calling; their raison d’etre.

    Where does this leave us? I am not sure that the direction we have taken in tort reform actually benefits anyone over the long-term. Rather than taking , as Professor Tim Kaye at Stetson University College of Law calls it, a fundamentalist approach, to torts where each side is incapable of leaving their particular version of trench warfare behind, perhaps we should work to better understanding between professionals and improving our patient’s and client’s expectations. At the least, someone needs to remind our society that, no, there really is no such thing as a truly free lunch.

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    Adam:

    Thank you for your honest and insightful comments. They bring a breath of fresh air to a very contentious issue.

    My focus, of course, is on the victims of medical negligence, who are most often left grieving and broken with no one to turn to and wounded again by the unrelenting refrain of the tort ‘reform” crowd seeking to deny justice and just compensation to even more victims.

    It’s sad that your idealism seems to have been crushed by the culture that pervades medicine. It sounds as though you are of exactly the type that should be in medicine. I wish there were more like you.

    I hope that you are able to find the fulfillment of your idealism in the law. It won’t be easy. There’s a lot there that will challenge your idealism as well. We can change the world a little at a time. And, according to the pain is the reward.

    Best Wishes for Strength, Success and Happiness!

  12. Leon F. Bennett, Esq. says:
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    A few years ago I became painfully aware of how Tort Reform really is nothing more than a Physician and Hospital sponsored legislative “Get out of Jail Free” card. Changing a system that held wrongdoers accountable for their conduct and its effect on others, rapidly has become a system that provides a form of immunity to the Medical profession. No longer is it the Victim that is the center of attention or concern, it has become the poor Doctors and Hospitals, who were being driven out of business by out of control insurance costs. Insurance companies who’s chief executives were rewarded with multi million dollar bonus and retirement packages? Wasn’t AIG a leading promoter of Tort Reform Nationwide? Hospital Associations and Physician Associations are not concerned with Patients rights. Their first and formost responsibility has become the financial welfare of their members. Its time for Patients Rights Organizations to join forces and return the decisions to Juries of their peers, not organizations funded by the very people they are supposed to be critiquing!

    Best wishes to all of you in this fight!