Do Tort Reformers Want Smoke To Get In Your Eyes?
Philip Morris Int’l manufactures a poisonous product that kills its users–cigarettes. It makes scads of money doing it, and wants to continue doing it, without the bother of lawsuits or realistic warning labels, as I will discuss in a moment. But for now, it’s important to recognize Philip Morris for what it is: a leader, and perhaps the leader, in funding and propagating the movement known as tort “reform.” Tort reformers’ essential belief is this. American corporations should be free to profit as much as humanly possible, without restriction, and should not be hampered in this objective by “frivolous lawsuits” through which they might be held accountable for negligence that injures or kills people. In practice, that translates to using its vaults of cash to fund media campaigns denigrating plaintiffs and their lawyers, and particularly plaintiffs in personal injury, medical malpractice and class action lawsuits. But proponents of tort reform like to ignore their own rules if doing so will provide a financial benefit.
A recent case in point involves Philip Morris. You see, they do not appreciate being forced to utilize warning labels that feature realistic and graphic portrayals of the dangers of using their product, even though many other poisons sold to American consumers have the notorious skull and crossbones prominently displayed. So what did Philip Morris do about it? You guessed it. They sued. In fact, they sued Uruguay and Brazil. And the reasoning is solid, of course. Accurate and graphic warnings on its products are “excessive.” But what they really mean is, accurate and graphic warnings might cause a dip in worldwide sales. Therefore, to Philip Morris, it is sales before safety, and they’ll file lawsuits to make sure they get their way. Do you see the frivolity here yet?
But “frivolous” is really too kind a word for what tort “reformers” like Philip Morris do. Because what they are really using their unlimited funds in our courthouses for is the protection of their license to kill. It’s big business. It’s their business. And it should be allowed to continue unfettered by accurate warnings to its users.
You’ve really got to love these folks. Their disinformation campaign relies on tired old saws like “rich lawyers” and “jackpot jusctice,” as if hordes of dishonest folks with no factual bases for their cases are marching into the courthouse, filing their claims, and exiting, magically, with newfound millions. Yet the truth occasionally hampers these efforts. As a story in yesterday’s NY Times showed, plaintiff’s lawyers are having trouble funding their own cases, prompting an entirely new industry of institutions who will invest in the cases until they resolve. It is hard to compete with corporate giants who will spend whatever it takes to fend off meritorious lawsuits. And this new way of financing cases only hurts the victim of negligence or malpractice in the end, for it is he or she who ends up paying interest on the loaned money.
But enough about victims. Big business is good for America.
What Do Elvis Costello And Tort “Reform” Have In Common?
As I sat by the radio last night trying not to retch, Rita Houston, an otherwise competent DJ at the Bronx’s own WFUV-FM, interviewed Elvis Costello in a manner that I will politely call “overly respectful.” And it disturbed me, because he does not deserve to be treated like a king.
Remember the pop tune “What’s So Funny About Peace, Love and Understanding?”? Although it was written by Nick Lowe, it was popularized by Elvis Costello. And as it turns out, the spirit of the song is not truly reflective of Elvis’s own views, which are rather narrow, and not overly generous. He said so himself, in way, in the NY Times.
Two weeks before Mr. Costello canceled his performances, scheduled for June 30 and July 1 at the ancient Roman amphitheater in Caesaria, he told The Jerusalem Post in an interview that the people calling for a boycott “own the narrow view that thinks performing there must be about profit and endorsing the hawkish policy of the government. It’s like never appearing in the U.S. because you didn’t like Bush’s policies or boycotting England because of Margaret Thatcher,” he said.
And yet, boycotting Israel, by canceling his shows there, is exactly what Elvis did, after having a sudden crisis of “instinct and conscience.” How did such a sea change happen so quickly? And if it was truly a matter of conscience, how is it that Elvis continues to perform, on a regular basis, without protest, in the lands of Bush and Margaret Thatcher? Surely there were actions and inactions and policies of the U.S. with which he disagreed at the time of the cancelations, as there were when “W” was in office–a time when Elvis enjoyed a profitable run of tours and music sales. It almost sounds as if there is something more insidious at work. Could it be that he is not a fan of Jews?
Well, to answer that question, let’s take a gander at his similarly generous and not narrow views of another group of us. History has revealed that Elvis does not have the kindest views of black folks, either. And if we keep in mind that bigots generally do not limit their dark feelings to any one particular ethnic group, but generously inflict their hatred against several groups they view to be despicable, the answer suggests itself.
Even if you buy into the current and popular wave of anti-Israelism, there are plenty of countries, including this one, whose governments have perpetrated hugely repugnant acts, on much greater scales, than Israel ever arguably has or will. But that hasn’t stopped Elvis, or any of the other acts for which I used to have respect (Pixies, Gorillaz) from playing in those countries.
So in the end, Elvis is a lot like fans of tort “reform.” He says one thing, and does another. He is as much of a hypocrite as “news” man John Stossel, who publicly rants against tort “reform” and insults people low enough to become plaintiffs in lawsuits. But Mr. Stossel became a plaintiff himself, soon after his obnoxious questioning of a pro wrestler got him bitch-slapped on video. And the aftermath was not pretty, as Eric Turkewitz showed in his sharp take on Stossel.
The Medical Malpractice Insurance Industry-A Study in Stupidity
Aon Risk Solutions reports that costs stemming from medical malpractice claims will rise. But you have to wonder why it is practically alone in the wilderness performing this Chicken Little play, while most other national insurers have acknowledged that such costs are not only down, but continue to decrease. Even in New York, there was no increase in premiums for two years, followed by this year’s 5% increase (see earlier post here). Pennsylvania insurers are seeing only drops in costs. Could it be that Aon will profit from the increased premiums it will likely be charging doctors and hospitals?
Meanwhile, it’s fascinating how little coverage has been given by the medical/insurance industry press to the early resolution of medical malpractice cases facilitated by New York’s own Judge Douglas McKeon, as part of President Obama’s Pilot Program addressing healthcare costs. This is the only example I have seen, despite the fact that, as the article acknowledges, the program saves hospitals millions of dollars. Could it be that it is essential to Judge McKeon’s process that hospitals acknowledge their mistakes early on, placing the liability insurers’ bean counters into a long-term and uncomfortable cringe state?
And yet, when hospitals are forthright at the beginning of the adversarial process, and engage in meaningful settlement negotiations, they save their insurers the cost of months of billable hours by defense lawyers doing little more than delaying and obfuscating so that they don’t kill the goose that laid the golden egg, that is, the lawsuit brought by the plaintiff. As long as the suit is alive, they can keep billing the insurance company to “defend” it.
The smart insurance company sees the value in early resolution based on frank discussions from the outset. The remaining insurance companies, who are unfortunately in the majority, roar for tort “reform.” And apparently unbeknownst to them, they do so to their own detriment.