March 13th, 2011

New York Medical Malpractice Caps Getting Blasted (Round-Up)

I wrote last week of the folly of the $250K caps on medical malpractice pain and suffering awards that were recently proposed. That proposal is now getting blasted. Below are brief excerpts, and the reader is invited to click the links to get the whole nine yards instead of my little outtakes:

From today’s New York Times comes an editorial (Medicaid and the N.Y. Budget: A Bad Deal on Malpractice):

The proposed cap would apply to “non-economic damages.” Patients could still sue for the cost of their medical care, the value of wages lost and other economic costs. But their ability to recover damages for pain and suffering would be limited to $250,000 from every provider found guilty of malpractice. That hardly seems enough for patients who might face a greatly diminished quality of life because a negligent hospital or doctor left them blinded, paraplegic, brain damaged or gravely disfigured for life….

…The best solution is to greatly reduce the errors and bad outcomes that can lead to malpractice suits.

From Denis Hamill at the Daily News (Doctor with disabled son is no fan of governor’s plan to cap malpractice suit):

When Dr. Lora Ellenson, a pathologist at New York-Presbyterian Hospital Weill Cornell, looks at Gov. Cuomo’s proposed $250,000 cap on pain and suffering malpractice awards, she diagnoses the issue as a doctor – and as the mother of a son with cerebral palsy due to negligence….

…Had the Ellensons not won a malpractice award well above the proposed $250,000 she would have had to quit her job to stay home with her son every day…

…I ask Ellenson if she could have raised her son in a comfortable world on $250,000.

“Absolutely no way,” she says. “I continue to believe, as a practicing physician, that the way to curtail medical costs is not by further victimizing victims of malpractice, but to put in place mechanisms and systems in hospitals and doctors’ offices to minimize risk to patients.”…

From the Times Union of Albany (Let Juries Judge Malpractice):

If a baby is born with brain damage because the mother’s obstetrician doesn’t arrive at the hospital until hours after he’s called and no one on the hospital staff notices clear signs that the fetus is in distress, should that mother have the right to sue the doctor and hospital?…

…But proposals are now being put forth in New York — at the instigation of health care special interests. These proposals would limit our rights in such cases in significant ways. Instead of protecting us, they would protect negligent physicians and hospitals. And, in considering these proposals, there was no one at the table representing the victims of negligent doctors…

…Caps on awards are simply the health care industry’s way of insulating negligent doctors and hospitals, preventing their victims from receiving the compensation they deserve and removing the deterrent effect that justifiable awards can have. These proposals will not save the state money. They will not reduce Medicaid costs because Medicaid does not fund malpractice awards. (more)

From the PopTort (How Hospital Lobbyists and Execs Can Get Carte Blanche To Rewrite Your State’s Civil Justice System!):

Here is our latest “How To of the Day” submission to WikiHow:

If you are a wealthy hospital executive or lobbyist and want to do something extra special for your members, like protect them when they kill or injure children, things may be looking up for you in states where the GOP has taken over. But what about a State like New York, where the legislature (or at least part of it) actually cares about protecting the rights of the sick and injured and ensuring patient safety? This is not so easy! But get ready, cause there’s a solution:

From Joanne Doroshow, Center for Justice and Democracy (NY Hospital Execs Try to Change Medicaid Rules Behind Closed Doors):

Whatever has been going on behind the closed doors of Governor Andrew Cuomo’s Medicaid Redesign Team,loaded with self-dealing lobbyists and hospital executiveswho make Wall Street level salaries, it’s time for New Yorkers to say enough.

Many have already complained about how this Team has been dominated by hospital and industry lobbyists, with consumer or patient advocates mostly excluded. Now we find out that these lobbyists are using this process not to save Medicaid money, but to execute a backroom deal that could create a financial windfall for negligent hospitals, incompetent health care providers and their insurance companies….

And what do the proponents of tort “reform” offer? They trash trial lawyers. One classic example comes from the constantly lawyer-bashing New York Post. Incapable of mustering actual public policy arguments, it reverts to calling anyone that represents a patient an “ambulance chaser.” That’s what you do when you can’t defend your position, you wage personal attacks. The medical malpractice hoax was exposed long ago. It also ignores the fact that the New York State Bar Association, which includes both defense and plaintiff’s lawyers among its ranks, trashed the “reform”arguments big time.

If you are aware of intelligently written pieces on the subject, preferably newspaper editorials,please let me know.

March 1st, 2011

New York To Cap Medical Malpractice Awards? (An Open Letter to the Legislature)

Dear New York State Legislators:

Deeply hidden from public view inside a report from the New York State Department of Health is a proposal to place an artificial $250,000 cap on medical malpractice pain and suffering claims. That report was given to Gov. Andrew Cuomo last week. The proposal is tucked inside something called the Medicaid Redesign Team, and was authored by insurance companies and medical institutions. There were no patient representatives on the committee.

You should soundly reject this anti-consumer bill on both public policy and monetary grounds.

First, a quick review of our current system before we get to the policy stuff: New York already has caps on personal injury cases for those runaway verdicts you see in the papers from time to time. These are not artificial, one-size-fits-all caps, but caps that are specifically geared to the individual cases. New York has successfully been doing this for almost 200 years for verdicts that are unreasonable, since Chief Judge James Kent wrote the following in Coleman v. Southwick in 1812:

“It is not enough to say, that in the opinion of the court, the damages are too high and that we would have given much less. It is the judgment of the jury, and not the judgment of the court, which is to assess the damages in actions for personal torts and injuries….The damages, therefore, must be so excessive as to strike mankind, at first blush, as being beyond all measure, unreasonable and outrageous, and such as manifestly show the jury to have been actuated by passion, partiality, prejudice, or corruption. In short, the damages must be flagrantly outrageous and extravagant, or the court cannot undertake to draw the line; for they have no standard by which to ascertain the excess.”

The standard is no longer “flagrantly outrageous and extravagant.” Now it reads, “deviates materially from what would be reasonable compensation” that is codified in section 5501(c) our Civil Practice Law and Rules:

In reviewing a money judgment in an action in which an itemized verdict is required by rule forty-one hundred eleven of this chapter in which it is contended that the award is excessive or inadequate and that a new trial should have been granted unless a stipulation is entered to a different award, the appellate division shall determine that an award is excessive or inadequate if it deviates materially from what would be reasonable compensation.

So a complainant not only needs to win the case before the jury, but that verdict then gets reviewed by the trial judge and then can be reviewed again by an appellate court. In other words, the system we currently use has a both a belt and suspenders to keep it from falling down.

What is the advantage of changing a system that isn’t broken? Well, by limiting the right to a trial by jury, it gives a healthy dose of immunities and protections to those that committed the wrongful acts. Is that an advantage? It is if you are the one trying to evade responsibility for your conduct.

If the artificial cap is in place, the injuries won’t be diminished. The only thing that will change is that the economic burden of those injuries will be borne by the victim instead of the party that caused them. Is it sound public policy to victimize the injured person a second time? Is it good public policy to discard the concept of personal responsibility?

At the moment, only the most severe injuries are the subject of malpractice suits. This is true for two reasons. First, the suits are very expensive to bring. There is little point bringing an action whose reasonable value might be $50,000, if it will cost that much in experts, records and depositions to get to verdict. And second, New York currently has some of the lowest attorneys fees in the nation as a result of “reforms” you enacted in the mid-1980s. Those fees start at 30% of the first $250,000 and rapidly slide down to 10% of anything over $1.25M. In other words, complex and expensive malpractice cases have lower legal fees than the norm, causing a predictable drop in the number of attorneys willing to undertake the difficult cases.

The result of that “sliding scale” fee structure is that doctors and hospitals in New York already enjoy a significant amount of immunity from medical malpractice cases. It is simply not cost effective to bring many of the actions that present themselves to our doors, even if they appear to have merit. Most lawyers that practice in this area, myself included, will reject at least 95-98% of the inquiries to the office.

The insurance companies and medical profession now ask you to give them a second giant helping of immunity by eviscerating the pain and suffering damages. The ones that will be hurt, of course, are those who have been most seriously hurt. It will have no effect on frivolous cases, as they do not have a value over $250,000. They have a value of zero.

And it isn’t as if granting such immunities and protections will lower the incidence of malpractice, which already causes up to 98,000 deaths a year according to the Institute of Medicine. If the government wants to cut Medicaid costs, and cut lawsuits, the efforts must be devoted to safety, not killing patient rights. Telling people they can act with impunity doesn’t increase safety.

If the top pain and suffering award is only $250,000 — which sounds like a lot if you grew up in the Great Depression but means quite a bit less when a surgeon wants $5-10,000 to come in to court and testify for a morning — the effect will be courthouse doors being slammed shut in the faces of many people. Any case with even modest complexity will be rejected by attorneys, and the victim left to suffer without compensation.

And not only is this lousy public policy, but it also makes no economic sense. What happens to someone crippled by malpractice? Generally, they can’t work anymore or raise their children if they have them. They also may be uninsurable due to their pre-existing conditions. Who pays when the injured person is poor? That’s right, the public does in the form of tax dollars going to various welfare and Medicaid programs.

But if Big Hospital, Inc. commits malpractice and injures someone, why should the taxpayers be saddled with these burdens? Why shouldn’t the hospital be paying for the damage it caused? Ultimately, of course, someone will pay, and it sure makes more sense that the one that did the damage should pay the bill and not the victims or taxpayers.

Were you worried about the costs of malpractice to medical care? Don’t worry too much. For the costs are less than 1/2 of one percent.

In sum, this proposal crafted by insurance companies and medical institutions is not only anti-consumer, but will saddle taxpayers with burdens caused by others. It makes no sense on public policy grounds or economic grounds. There will, however, be a windfall profit for the insurance companies and those doctors that hurt the most people and make the biggest mistakes.

For more on the subject:

State Bar Blasts Proposal to Cap Medical Malpractice Awards (New York Law Journal)

The New York State Bar Association and its president yesterday blasted a recommendation by Governor Andrew M. Cuomo’s Medicaid reform task force to cap medical malpractice awards for non-economic losses at $250,000.

Such caps are “anathema with respect to equal protection/access to justice,” the state bar’s Committee on the Tort System said in a memo in opposition to the Medicaid Redesign Team’s recommendation. The memo was endorsed by the bar’s executive committee….

How New York Caps Personal Injury Damages

…So why put arbitrary caps in place if common sense ones already exist? Because the movement to do so has nothing to do with finding justice, but rather, is run by big business and its front groups such as the U.S. Chamber of Commerce to give negligent conduct various forms of immunities and protections when folks are injured. The idea is to remove the concept of personal responsibility for one’s actions…

Medical Malpractice Insurers Price-Gouged Doctors During This Decade

Americans for Insurance Reform (AIR) announced today the release of Stable Losses/Unstable Rates 2007, a new study that examines fresh insurance industry data to determine what caused the most recent medical malpractice insurance crisis for doctors. The study by AIR, a coalition of over 100 consumer and public interest groups representing more than 50 million people, finds that the insurance crisis that hit doctors between 2001 and 2004 was not caused by claims, payouts or legal system excesses as the insurance industry claimed….

Medical Malpractice Economics

Two weeks ago I wrote Medical Malpractice – A Primer, directed toward members of the medical community due to a recurring theme I saw on medical blogs: The idea that such suits are brought cavalierly….

I promised a follow-up on how cases are selected by a plaintiff’s attorney, but first want to deconstruct the time and money needed if the matter is taken. For only by understanding the time and money risks can one appreciate the importance of careful screening for potential litigation…

The Medical Malpractice “Crisis” Hoax — From Public Citizen

…Good doctors, however, don’t seem to be the problem. Since 1991, according to the report, 5.9 percent of U.S. doctors were responsible for 57.8 percent of the number of medical malpractice payments. That is an extraordinary statistic.

A few other points from the report, and things to think about when someone advocates closing the courthouse door to those injured by negligence:

The number of malpractice payments declined 15.4 percent between 1991 and 2005.

Adjusted for inflation, the average annual payment for verdicts declined 8 percent between 1991 and 2005.

Payments for million-dollar verdicts were less than 3 percent of all payments in 2005.

Over 64 percent of payments in 2005 involved death, or major or significant injuries.

First, do no harm

…Two recent studies make it clear those policies have not been widely adopted. Last November, both the New England Journal of Medicine (NEJM) and the inspector general for the Department of Health and Human Services published results of studies showing that the level of risk to patients in our nation’s hospitals is at crisis levels, with hundreds of people dying daily from medical errors…

Do Texas Med-Mal Damage Caps Work? (What Do You Mean By “Work”?)

…But what, exactly does it mean for a statute to “work” when it reduces the ability of the most badly injured individuals to recover for their loss?

Does offering government protectionism for tortfeasors mean it works?

Does stopping those who’ve been victimized from recovering from their loss mean it works?

Does destroying the concept of personal responsibility for one’s actions mean it works?

If the objective is to offer windfalls to those whose negligence has injured others then one might say it works. But that doesn’t makes it good public policy…

Child’s Feet and One Hand Amputated After Emergency Room Delay (California Tort “Reform” In All Its Glory)

…For out in California, they enacted a one-size-fits-all tort “reform” with a cap of $250,000 on non-economic damages (pain and suffering). The state did this in 1975. And it hasn’t changed in the last 35 years. Adjusted for inflation, it would be about a million dollars today. But it has never been adjusted.

That’s right, a lifetime of missing three limbs, if she survives, and this child might receive compensation of $250,000 for her pain and suffering. Less, of course, the money spent to hire the experts, take the depositions, get all the records, and get the case to trial after a few years, and paying the lawyers to do it. Assuming that lawyers can be found to put forth the money and absorb the risk for a contingent fee….

Does the Tea Party Believe in Conservatism or Tort “Reform”? (8 Questions)

As the Tea Party movement gains more attention, some folks want to know exactly what they believe in. Today’s question: Do they believe in a smaller, less intrusive, government or will they follow the Republican Party down the path of Big Government Tort “Reform”?

Since the Tea Party is a nascent and disorganized collection, I’m tossing out eight questions for those conservatives in the movement to ponder as they decide which side of the tort “reform” debate they are on…

February 15th, 2011

First, Do No Harm

This was first posted in Trial Magazine (February 2011)©, put out by the American Association for Justice, formerly Association of Trial Lawyers of America (ATLA). At my request, I’ve been given permission to re-post this, given the constant drumbeat of tort “reformers” seeking to protect those that have caused injury to others from being held accountable for their conduct.

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First, do no harm

C. Gibson Vance, President of AAJ

Few things in life are certain, but one thing you can count on is that politicians who want to weaken the civil justice system will try repeatedly to take away the legal rights of patients hurt by medical negligence. That was one of their final actions late last year, and it is on their agenda again in this new Congress.

Once again, our opponents are ignoring a major crisis in preventable medical errors and attacking injured patients while they try to revive the health care debate by raising the usual myths about medical malpractice litigation.

In the last Congress, AAJ successfully fought off dozens of amendments to the health care reform law that would have denied the legal rights of medical negligence victims. Our opponents tried one last time in the waning hours of the fall session by attempting to inject med-mal tort “reform” into the 9/11 bill, and AAJ helped to get the effort defeated by a vote of 185–244.

Their argument always boils down to cost. They claim that medical malpractice litigation is an expensive drain on the American health care system. A favorite tactic is to blame legitimate negligence claims for costly “defensive medicine”—a term used to describe what happens when doctors presumably order unnecessary tests for fear of being sued.

Yet even using our opponents’ statistics, a 2009 Congressional Budget Office report found that proposed changes in the civil justice system would save only one-half of 1 percent of all health care spending. The same report found evidence that tort “reform” measures would increase mortality rates and lead to worse patient care.

A tired and treacherous campaign

Now they’re at it again, at a time when the serious problem of medical errors is growing worse, not better. In 1999, the Institute of Medicine (IOM) famously reported that preventable medical errors kill as many as 98,000 patients a year. At that time, the IOM suggested a number of steps to improve safety, such as increasing the use of computerized medical records and making sure doctors and nurses don’t work too long in any given shift.

Two recent studies make it clear those policies have not been widely adopted. Last November, both the New England Journal of Medicine (NEJM) and the inspector general for the Department of Health and Human Services published results of studies showing that the level of risk to patients in our nation’s hospitals is at crisis levels, with hundreds of people dying daily from medical errors.

The NEJM study—which examined patient safety in North Carolina hospitals—found that about 18 percent of patients were harmed and that of these injuries, 2.9 percent were permanent, 8.5 percent were life-threatening, and 2.4 percent caused or contributed to a patient’s death. The study also reported that “the penetration of evidence-based safety practices has been quite modest.” Only 1.5 percent of hospitals in America are using a comprehensive computerized medical record system, and doctors-in-training and nurses regularly work excessively long hours, which has been proved to be unsafe.

The inspector general’s report included some sobering statistics from a study of Medicare beneficiaries conducted in October 2008. It found that one in seven Medicare patients experienced a serious adverse event. As a result, the study projected that 15,000 patients died in a single month—that’s the equivalent of an astonishing 180,000 patients a year. The study concluded that 44 percent of the adverse events were preventable, due to medical errors and substandard care, and cost the government $4.4 billion a year.

How will stripping the rights of these patients to seek justice solve this crisis of care? It won’t. Instead it will create a health care system that costs more but produces worse outcomes. Patients injured by medical errors will have no recourse, leaving taxpayers to foot the bill.

Congress should adopt the time-honored pledge of the medical profession, “First, do no harm.” It should focus on the real problem of preventable medical errors, not attack innocent patients harmed by health care providers’ mistakes.

January 27th, 2011

Bloomberg: City’s Tort Victims Should Bear Own Costs

In an interview with me yesterday just after a speech before the New York State Bar Association on the issue of “tort reform,” Mayor Mike Bloomberg said that victims of New York City’s negligence should bear their own costs. “It’s just too much for us to compensate these people, we think the better policy is for those who were injured by our negligence to take care of it themselves.”

The mayor, in wide-ranging comments made in front of the lawyers group that he continued with me afterward, said, “Look, let’s be blunt here. Who is in a better position to pay the costs of an injury if a city bus injures people? Our strapped city budget, or the victims? Yes, we know that some of them can’t work, can’t take care of their kids, or even go shopping for food due to their injuries, but we have to be realistic. This is tort reform, and we need more of it here.”

In his remarks, the mayor noted the political realities of the situation: “This city has a lot of businesses in it, and if they don’t make decent profits, it won’t be a good situation. And I know all about profits, having built a pretty handsome business before the voters asked me to take this job.” “Let’s face it,” Bloomberg continued in my interview with him, “personal responsibility is so yesterday.”

OK, maybe my quotes aren’t quite exact, and I didn’t meet with him in the traditional sense so much as I channelled his inner thoughts. But they are not far off from reality. Bloomberg actually did stand before the lawyer’s group yesterday. And he really did argue for various forms of immunity for the city for its negligence.

One topic was medical malpractice and the claim that doctors are moving away from upstate due to a fear of litigation. Well, they are moving away from upstate it is true, but upstate is economically distressed. It’s fairly well known that doctors and other professionals tend to move to nicer areas if they can.

No real surprise there. Good food, theatre, a vibrant city life, and many other benefits for which people have been moving to cities. Factories close and workers move. Those workers are also called patients.

But Bloomberg tries to claim that this migration is actually due to medical malpractice issues. Really. He does. His exact words (Bloomberg-TortReformSpeech):

This fear of litigation drives up the cost of health care, and it can lead to a shortage of doctors in certain specialty fields – as we see Upstate. In Western New York, a recent survey found that 91 percent of emergency departments had to transfer patients to another hospital in 2009 because of lack of coverage in a necessary specialty.

Anyone here think I’m going to let him get away with that?

Let’s turn to an actual study, that was captured in this 2007 article in the New York Times (Few Young Doctors Step in as Upstate Population Ages) a different reason is presented, and it has everything to do with (surprise!) doctors moving to wealthy areas because they want to make more money and have a nice lifestyle:

In New York, the study found 6 percent growth in the number of doctors practicing medicine in the state from 2001 to 2005, for a total of about 77,000 doctors. But the way they are spread throughout the state is wildly uneven.

While newly licensed doctors flock to New York City, Long Island and Westchester County, where there is already a glut, far fewer choose to practice in the vast upstate region. For instance, during the years the study was conducted, Essex County in the Adirondacks lost 22 percent of its doctors, while there was a 19 percent increase in Nassau County, on Long Island.

And as doctors upstate retire — one-third of the physicians in Binghamton are 55 or older — recruiting replacements is becoming more difficult. “I worry that new physicians may not see certain areas in the state as viable or attractive,” Ms. Moore said.

There is little question why, since statistics show a steady exodus of jobs and a decline in prosperity in upstate New York. In the last three decades, the population drain has contributed to New York’s loss of Congressional seats, to 29 today from 39, and state figures show that the number of 20- to 34-year-olds in the region decreased by 22 percent in the 1990s.

Nice try Mr. Mayor. Perhaps you even found some folks who believed the nonsense you spouted.

He also tried out the concept of neutral medical malpractice panels to pre-screen cases. Thanks, mayor, but we already tried that in the ’80s and it was a miserable failure that led to years-long delays in cases getting resolved. (See: Why Medical Malpractice Panels Fail)

Doctors, it seems, didn’t want to take time out of their day to sit. And there were no witnesses, just records. It was therefore impossible to resolve the “patient said” / “doctor said” disputes as to facts.

He tried out the old “unfair verdicts” routine:

How can we make our tort outcomes more predictable, more equitable, and fairer? Litigation was designed to promote fairness, but today, civil litigation is more like the lottery: a few people get a windfall of cash, but most lose out.

Well, that is why we have judges that can toss out arbitrary and unfair verdicts. I’m way ahead of you on that “windfall” nonsense. See How New York Caps Personal Injury Damages.

And he trotted out the old “run it like a no-fault system” routine:

Certain classes of claims, such as those arising from cerebral palsy or birth defects, are such painful cases. And they often lead to arbitrary and unfair verdicts. Why not instead experiment with alternatives like a no-fault system where payments depend on injury, not fault? This would compensate families evenly and fairly without the expense and delays of litigation, and would remove the powerful disincentive for new doctors to become OB/GYNs.

Who said the no fault system was fair? He’s clearly never heard of sham no-fault exams by allegedly “independent” doctors that last only a few minutes and are designed with one thing only in mind from the insurance company that is paying the benefits; Find a way to cut those benefits off.

He tried out this one also: “The size of judgments, and the fact that they can be recovered even when the plaintiff is at fault, has helped drive a huge increase in tort payments.” He forgot to mention, of course, that if a plaintiff is negligent then the verdict is reduced by the same percentage amount in accordance with CPLR 1411.

But I think this was the real crux of his argument…that because the city pays a lot of money it must therefore be unfair:

Of course, the City should pay in cases where it is primarily at fault, but judgments in those cases would not amount to anywhere near the half billion dollars a year we currently pay.

This isn’t the first time I’ve heard this. In July 2009 I systematically pulled apart a piece in Forbes that came from a fellow at the Manhattan Institute that hit this point. If the city doesn’t compensate the victims of its negligence, of course, then that means someone else is bearing the costs. And I refer not only to the medical costs, or the economic costs from lost wages if the person works, but to the costs of the suffering involved.

By the way, Bloomberg touts Texas as a great example of tort reform, where victims get double-screwed (Do Texas Med-Mal Damage Caps Work? (What Do You Mean By “Work”?)). But when did it become good public policy to take those that have been injured by the negligence of others and tell them they must fend for themselves? Is that anyone’s idea of personal responsibility? (It’s worth noting that doctor disciplinary proceedings in Texas have more than tripled in the last ten years, a subject I’ve written about before. Is that because bad doctors see Texas as a safe haven?)

C’mon mayor, this is like shooting fish in a barrel. Don’t you have any real arguments to make?

(The WSJ also has an article on the speech, in which I am quoted from an older blog posting: Mayor: Tort Reform Would Cut Costs)

January 6th, 2011

The New Congress and the Constitution (Will they really defend it?)

Today a Republican majority takes control of the House of Representatives. And their first order of business is to read the Constitution. And they want every new piece of legislation to set forth which part of the Constitution authorizes each bit of legislation.

But will Republicans really follow the Constitution when it comes to tort “reform?” My bet is no, based on a history of Republicans trying to limit consumer access to the courts. One academic favored by the right wing, Richard Epstein, arrogantly refers to the constitutional right to a civil jury trial as a “procedural feature.”

So let’s refresh, a bit, as the new House takes control. The Seventh Amendment states as follows:

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

Over at the Huffington Post, AAJ President Gibson Vance expands on the history and importance of the right to jury trial in a piece entitled Constitutional Conservatives and the 7th Amendment. He writes:

The right to a trial by jury for civil suits dates back almost 800 years, to the signing of the Magna Carta. Article 39 of the Magna Carta specifically guaranteed the right to a jury trial for civil suits and criminal cases.

Our Founding Fathers also agreed with the importance of a trial by jury. In the words of James Madison, “In suits at common law, trial by jury in civil cases is as essential to secure the liberty of the people as any one of the pre-existent rights of nature.”

Perhaps I will be pleasantly surprised and the House of Representatives will stay true to the Constitution. But based on historical precedent, I won’t be holding my breath. For on this issue it is only in theory that the political right believes in less government oversite. When it comes to protecting corporations, they do an about-face to strip rights away from the people.

Bear in mind that there are many tens of millions of dollars that flood into the politics in the legalized bribery system that we have. When politicians are asked to choose between protecting Big Business from lawsuits, and protecting the rights we have in the Constitution, it seems logical to assume that principle will fall by the wayside for many. The Constitution, after all, doesn’t write checks.

(The sketch above comes from the Watergate trial of Haldeman, Erlichman and Mitchell, and hangs on the wall of my office.)