January 3rd, 2011

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

Malyia Jeffers and father Ryan Jeffers prior to the child's illness

Out of the Sacramento Bee comes this horrible story of 2-year-old Malyia Jeffers, whose feet and one hand were amputated after a 5-hour wait in an emergency room of an urgent care center. She was sitting there with a potentially deadly invasive Streptococcus A infection. While she waited, according to the article, the girl became increasingly lethargic, fever raged, and her skin turned splotchy. After awhile, she couldn’t even walk.

This is the nuts and bolts of it:

[The father] Ryan Jeffers, 29, said he pushed for immediate care, but was rebuffed. After about five hours, he said, he ambushed a nurse and demanded to see a doctor. The physician took blood samples that suggested Malyia was in liver failure, Jeffers said. She was taken by ambulance to the pediatric intensive care unit at Sutter Memorial Hospital. Doctors there had her flown to Stanford aboard a helicopter.

It turned out the girl was in septic shock from a Streptococcus A infection that somehow invaded her blood, muscles and internal organs. About 10,000 cases of “invasive group A streptococcus” infections occur every year in the United States, and as many as 20 percent of patients die from the condition, according to the Centers for Disease Control and Prevention.

Now I don’t know if faster treatment would have saved this child from catastrophe (and potential death). But let’s for the moment assume it would have. What legal alternatives are available?

And the answer may surprise you, as they are somewhat limited. 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.

The statute was challenged on constitutional grounds in 2009, but that effort sadly failed.

That, ladies and gentlemen, is what you get when you sign on for tort “reform.” A big, fat gift to the insurance companies and a healthy dose of immunity and protection for those that are negligent. If there was negligence in this case, the burden will not be borne by those that were negligent, but by those that were victimized. Of course, to the extent that the child is poverty-stricken at some point, it will be the taxpayers that get the burden.

Make no mistake about it. Tort “reform” shifts the burdens of loss to the victims and taxpayers and protects the wrongdoers. That is what it is.

Hat tip: Jonathan Turley with this post on the subject, and Scott Greenfield.

December 1st, 2010

Hot Coffee Goes Sundancing

Everyone has heard about the McDonald’s hot coffee case where Stella Liebeck was scalded with third degree burns. And almost everyone has an opinion. Every so often, someone knows the actual details. Most though, just know that some lady spilled hot coffee on herself and sued McDonalds for millions. A Google search for hot coffee Stella Liebeck turns up over 11,000 hits, and hot coffee lawsuit turns up 60 million.

Now a movie has been made called, appropriately enough, Hot Coffee. And this movie explains why you know about this suit, why it’s part of the discussion over the civil justice system, and how it was used (and misused) for propaganda purposes. This is the blurb from the Hot Coffee site (which also has a trailer for the film):

Seinfeld mocked it. Letterman ranked it in his top ten list. And more than fifteen years later, its infamy continues. Everyone knows the McDonald’s coffee case. It has been routinely cited as an example of how citizens have taken advantage of America’s legal system, but is that a fair rendition of the facts? Hot Coffee reveals what really happened to Stella Liebeck, the Albuquerque woman who spilled coffee on herself and sued McDonald’s, while exploring how and why the case garnered so much media attention, who funded the effort and to what end. After seeing this documentary film, you will decide who really profited from spilling hot coffee.

Why write about this now? Because the documentary was selected today to play at the Sundance Film Festival. The festival picked just 16 films out of 861 submissions.

The Sundance site had this blurb on the film:

(Director: Susan Saladoff) Following subjects whose lives have been devastated by an inability to access the courts, this film shows that many long-held beliefs about our civil justice system have been paid for by corporate America.

The incident occurred in 1992, 18 years ago, and this one case still fuels debate. Why? It may because there are continuing attempts by the corporate world to gain immunity for negligent acts by calling it tort “reform.” And the way the argument is made is by looking for outlier suits, and trying to use those outliers as a means of changing the system as a whole. (Whether the McDonald’s case is an outlier will depend on your own viewpoint after reading the facts, but that is how “reform” politics fundamentally works.)

The debate rages on.

November 3rd, 2010

Tea Party and Tort Reform

Yesterday, two Tea Party favorites won Senate seats: Mark Rubio of Florida and Rand Paul of Kentucky.

But with the Tea Party making these and other gains in yesterday’s midterm election, people are wondering exactly what the movement stands for on various issues. This isn’t as easy as it seems given the fragmented nature of the “party” which is really more of a collection of ideas about more limited government.

This is the question I have: How to they feel about tort “reform?”

Exactly six months ago today, I wrote this post on the subject: Does the Tea Party Believe in Conservatism or Tort “Reform”? (8 Questions)

I still don’t have an answer. And it seems that the time to answer has drawn quite near.

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October 22nd, 2010

Tort “Reform” Money In A Nutshell

This is a short tale of two news stories this week. And money. The first reports on “trial lawyer” lobbying, and is published in The National Law Journal. The paper reports that the American Association for Justice raised $2.5M thus far this year for its political action committee.

And the second comes from the New York Times, in which it reports that the US Chamber of Commerce can raise more than that from a single corporation:

The annual tax returns that the chamber releases include a list of all donations over $5,000, including 21 in 2008 that each exceed $1 million, one of them for $15 million.

…

…records show that while the chamber boasts of representing more than three million businesses, and having approximately 300,000 members, nearly half of its $140 million in contributions in 2008 came from just 45 donors.

I’ve always wondered what the numbers would look like if you stacked up pro-consumer groups on one side and the Fortune 500 on the other. I think this gives a pretty good clue as to how it would all shake out.

Now I’m not going to pretend this is the sum of all the money. It obviously isn’t. Plenty of lawyers give money to politicians without going though AAJ. And you can be sure that the huge healthcare, financial, oil, auto, insurance and other companies that stand to profit by cutting back consumer rights give gobs of money on their own without going through the chamber.

Perhaps one day a real study can be done — though with anonymous contributions now a big part of the political world that would be tough. But there seems to be little doubt that, if you could do the tally, the donations of pro-consumer groups would be utterly swamped by those from big business.

October 8th, 2010

US Chamber of Commerce Loves Lawsuits! (Except, of course…)

According to this ABC News article, the US Chamber of Commerce, the largest corporate lobby group in the country, is about to pump $10M into advertising for the coming election to get tort “reformers” elected. It’s the single largest expenditure by any group other than the Democratic and Republican parties.

But this bit jumped out at me:

As the chamber increased its efforts in this year’s midterm elections, chamber CEO and President Thomas Donohue on Thursday issued a tough denunciation of government regulations, threatening to use the courts to block new rules that affect business and setting the chamber up as a major adversary of the Obama administration.

“Litigation is one of our most powerful tools for making sure that federal agencies follow the law and are held accountable,” he said in prepared remarks to the Des Moines Rotary Club. “Today, we are issuing a clarion call for Americans and lawmakers to stop the encroachment of a government by the regulators before it’s too late.”

Now let’s changed the line I italicized and see how it reads:

“Litigation is one of our most powerful tools for making sure that corporations are held accountable.

So, it seems, Big Biz actually loves litigation, and thinks it’s a wonderful “tool” for holding folks accountable. Except, of course, when it’s a consumer seeking to hold the corporation accountable. Then it’s not so hot.

The Chamber of Commerce is, it appears, utterly shameless in its hypocrisy.

A couple of Chamber of Commerce classics from the past:

US Chamber of Commerce Wins Golden Turkey Award (1/1/10)
Chamber of Commerce Credits Apple’s Success to Trial Lawyers (10/19/09)