September 3rd, 2010

Blame the Lawyers (Playground Edition)

Our back yard family swing set, circa 1967

My brothers and cousins, circa 1967

In a post at Overlawyered, Walter Olson notes an article that says swings sets have been removed from a playground “in part because of lawsuits over injuries.” A West Virginia school district had just settled a suit over an injured child for $20,000. The key words from the short blog post? “In part.”

You see, an examination of the article reveals that the surface wasn’t safe. So let me summarize this post before you read the rest:

Surface not safe
Child injured
Blame the laywers

Now let’s pick up where I left off, with the second link; an editorial to the business-minded Investors Business Daily. After relying on a few anecdotes to support its position that lawyers are clearly to blame for children being miserable, the paper starts quoting “authorities”:

“There is nothing left in playgrounds that would attract the interest of a child over the age of four,” Philip K. Howard, lawyer and author, wrote in the Wall Street Journal in 2008.

And then there is similar quote from Olga Jarrett, a Georgia State University professor, from remarks given to (surprise!) a tort “reform” group:

She blames “a fear of lawsuits that makes some school systems and cities design playgrounds that are completely uninteresting to kids.”

Oddly enough, my kids have no problem finding things that attract their interest on the playground, and they are clearly past the age of four. But then, my kids are looking to play, not looking to score political points in the debate over tort “reform.”

The editorial says that “America’s litigious society has changed the way kids play.” Well, yes and no. They still use the monkey bars the same way. But they aren’t doing so over a concrete surface, are they?

In the parks we’ve gone to over the past years, we’ve seen an abundance of swings, slides and things to climb on and scamper over. I see happy faces running up, over and around equipment that was far safer than the public parks I went to as a kid. The only thing I see missing from my youth is the merry-go-round you stood on that others would spin ’round and ’round ’till you puked or were catapulted off onto the concrete. I know, some people liked to see their kids in danger.

Perhaps Investors Business Daily would like to return to the days of dangerous products, exploding Pintos, crippled children and Dalkon Shields. Perhaps. Unless, of course, the family member of one of the writers was hurt. Then, I’m sure, they would be singing a slightly different tune, like so many others.

Now about that photo of the kids on the swings you see up at the top right? That is a Turkewitz family photo shot by dad around 1967 in our backyard. I’m the kid in the red pants furthest from the camera, with my brothers and cousins scattered about. And note the soft surface my father installed. Even way back then we knew that you don’t want kids playing on equipment over dangerous surfaces.

July 21st, 2010

John Stossel, Hypocrisy Again

The slap the led John Stossel to hire a personal injury attorney and recover a reported $400K

John Stossel is at it again, trashing lawyers. Why? Two reasons:

1. When lawyers shoot back we sound like lawyers. Thus, easy fodder.

2. He makes good money doing it. How? Well, the Fortune 500 companies and conservative “think tanks” have tons of conventions, conferences and trade shows. And speakers are nice to have and can get paid well for it.

Could he be anti-lawyer on the merits? Funny joke, I know, but some will ask anyway. No, he actually confessed in a moment of candor that, while he was a consumer advocate in the past, he makes a lot more dough running around trying to get immunity for corporations. He said once:

In what was perhaps a moment of candor back in 1996, when he was giving a speech to the conservative legal group, the Federalist Society, someone asked Stossel why he had abandoned consumer reporting to bash government and trial lawyers. According to the Corporate Crime Reporter, Stossel replied, “I got sick of it. I also now make so much money I just lost interest in saving a buck on a can of peas.”

In his most recent attack (July 7th, Parasitic Tort Lawyers), he makes this claim, that kids have suffered because playgrounds are safer:

Even when the lawyers do help their clients, they hurt everyone else because fear of their lawsuits takes away many good things: Swimming pools, playgrounds and gymnastics programs close because liability insurance is so expensive. Kids lose their favorite places to hang out in the summer.

Now when I was a kid, there was concrete or asphalt under the monkey bars. Kids got hurt. It was dangerous. Lawsuits were brought because there were easy, reasonable fixes. Now you see wood chips or mats. We do not have fewer playgrounds today, though we do have fewer serious injuries. And I see plenty of public pools and school gymnastic programs. Stossel is utterly full of it. According to Stossel, safe playgrounds are a bad thing. Up is down. Black is white. And all hail his Orwellian Doublespeak.

And then there is this:

Look at health care. The lawyers claim they punish bad doctors and win compensation for injured patients, and their suits add “less than 2 percent to the cost.”

This is deliberately misleading. The costs are actually less than one percent. Nice job, Johnny boy. And it’s very rare for suits to be brought against doctors to “punish,” they are brought for compensation. Maybe you’d like to pay higher taxes so the public can pay the compensation? No? I didn’t think so. Why not just give the tortfeasors immunity and screw the injured folks? Great public policy that would be, huh?

Let’s have some more Stossel fun. He lets loose with this about doctors and hospitals:

They do surgery on people who may not need it. That’s safer for the doctor, although it’s not safer for the patients.

Stossel may not have noticed it, but the medical profession has a financial interest in doing more surgeries. It isn’t a secret that they get paid more to cut than not to cut, and that doctors have the biggest paydays in America.

The funniest part was his closing, where he tries to attack John Edwards for bringing cases regarding brain damaged infants, and accuses him of self-interest:

“I’m a trial lawyer,” he said. “They turned the word trial lawyer into a four-letter word, and I’m telling you I’m the people’s warrior, and I am proud to be an American trial lawyer.”

And the money is good.

Hee, hee. That was funny. He tries to skewer Edwards because he was a financial success when the reason he himself switched over to corporate defender was because “I also now make so much money I just lost interest in saving a buck on a can of peas.” As a noted TV personality would say, “Give me a break.”

I noted his hypocrisy earlier this year (including his own personal injury lawsuit for getting slapped a couple times by a wrestler, for which he reportedly collected over $400K) in a post entitled John Stossel — You Gotta Love Him.

And so, after yet another attack piece on “parasitic” lawyers, Stossel was filleted by various bloggers. I bring you, without further ado, a few more of those criticisms:

John Stossel – The Wrestler (Jon Lewis)

How Do You Solve a Problem Like John Stossel? (The Pop Tort)

Stossel Calls Lawyers Parasites (Tort Burger – Hold the Reform)

Dear John Stossel: The 7th Amendment & Trial Lawyers Probably Saved Your Life (The 7th Amendment Advocate Blog) – added 8/4/10

June 29th, 2010

A Dead Child In Central Park (6 Legal Issues)

It is rare for me to discuss a local accident. But I do so today regarding the tree limb that fell over the weekend killing a 6 month old girl in Central Park that also critically injured her mother. She was holding the baby and posing for a picture being taken by the father on a clear summer’s day. It is, essentially, a trauma that could have happened to anyone.

And I write because WABC-TV called me to discuss the liability issues on the air, and it raised a number of concepts that local television isn’t really equipped to handle in soundbite format. And the last two of those issues are things that the Legislature should address:

First — A Duty to Inspect: The tree was inside the Central Park Zoo, run by the Wildlife Conservation Society that also runs the Bronx Zoo. But the limb was overhanging an area just outside the zoo where it came down. Who’s responsible? The answer is that the owner of the tree has a duty to inspect and maintain that tree. And the landowner over which that limb hangs, and under which its patrons walk, also has that duty. And given that this is not an obscure part of the woods but one of the most heavily trafficked spots in Central Park, that duty is rather substantial.

Second — Contractual Obligations: Based on news reports, the Central Park Conservancy has a contract with the Parks Department to do inspections. This would be a contractual obligation that could likewise make them a defendant if a suit were brought.

Third — Notice of a Troubled Tree Limb: The issue of notice is critical, meaning that the zoo/park would be responsible only if they knew, or should have known, that there was a problem with the tree limb. This is similar in concept to the banana peel on the supermarket floor. Just because someone slips on it doesn’t make the store responsible. The store needs to have known it was there (an employee saw it or customer told them) or it was so blackened and old that it is clear the store should have known about it with reasonable care. Those same concepts apply to the tree limb, and much will be made in the investigations about the adequacy and reasonableness of the inspections that took place (if they took place).

Fourth — The Rush To Find a Lawyer: This veers off now away from responsibility to the sad fall-out of tort “reform.” If a municipality is going to be sued, then local laws require people to file a Notice of Claim within 90 days of an incident so that the municipality can investigate. That means that while the husband/father is grieving and trying to help his stricken wife, he has to go looking for lawyers and meeting them. That is terribly unfortunate, but the sad result of attempts by our Legislature to limit actions by forcing excessively tight limitations periods on those that have been injured.

Fifth — The Demand for Damages: Not only must the father find a lawyer fast (and without a clear head he runs the risk of making a mistake in who he hires) but that lawyer must then make a demand for damages in that Notice of Claim. In other words, without even knowing what the future holds for his wife, there must be some number stuck in the Notice. This is a practice that has been mostly legislated out of existence, except for this one place in the Notice of Claim. But that number will bear no relation to reality. Since the extent of the injuries won’t be known at such an early stage, the lawyer must cover all contingencies and assume a worst case scenario. But this unrealistic number will then be broadcast in headlines far and wide by the media as if it actually has meaning. The Legislature should get rid of this provision, as it serves no useful purpose whatsoever other than for headline writers.

Sixth – Valuing the Life of a Child: In New York, unlike the vast majority of other states, a parent cannot sue for grief over the lost child. An action can only be brought for the pain and suffering of the child, or a wrongful death action for the financial loss. So if a child was knocked out at the time of a car accident, for example, and doesn’t physically suffer and dies afterward, the law deems the child’s life to have little value since there was little financial loss to be expected. The family is thus unable to hold accountable those that did the true damage. While some may feel odd about financial recoveries under such circumstances, it is really up to the people who suffered the loss to decide if they wish to donate money to charities, fund education, or embark on any other type of expense that they believe appropriate. The Legislature should bring our archaic wrongful death law into the modern era, and rid us of this insult to grieving families.

May 3rd, 2010

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.

Why are these questions important? Because the Tea Party movement is not yet corrupted by campaign money. Leaving aside the charges of racism leveled against some in the movement, and which certainly exists in some segments, I suspect that others actually care about political theory. It is for these people that I ask these questions:.

1. Do you believe in limited government? If so, does adding protections and immunities for negligent people/companies comprise bigger or smaller government?

2. Do you believe in a free market? What are the free market benefits of protecting companies that make dangerous products? Should companies that create safe products be rewarded and should companies that make unsafe products go under?

3. Do you believe in personal responsibility? If so, do you want to nevertheless limit the responsibility of negligent parties and shift the burden to others?

4. Who should pay the costs of an injury? The negligent party or the taxpayers? Will it be Medicare or Medicaid that will pay with your tax dollars? Or will it be a state fund, like the one proposed in Oklahoma? If you believe in having the taxpayers pay for injuries inflicted by others, how much extra in taxes are you willing to pay to protect the tortfeasors?

5. If you want to limit the civil justice system, does that mean you want a corresponding increase in the criminal justice system and regulation to make up for it? Or should negligent/reckless parties just get a free ride? (See: Punitive Damages: Why America is Different Than Europe)

6. Should we give the government more power by disbanding the jury system? One of the results of the Revolution against King George was establishing the right to trial by jury. It is mentioned in the Declaration of Independence as well as the Sixth and Seventh Amendments of the Bill of Rights and acts as a check on government power. (See: Should Obama Sit Jury Duty?) Do you want the government to have more power?

7. Do you want to toss out political theory in favor of the pragmatics of protecting doctors and hospitals from an avalanche of medical malpractice cases? If so, should you consider that medical malpractice payments have actually hit a new low?

8. Do you believe in states rights? Would federal tort “reform” legislation that limits the state-run civil justice systems run contrary to that concept?

The current state of the Republican Party, it seems, grabbed the tort “reform” issue many years ago despite the fact that it makes no sense at all from a conservative perspective. I’ve always assumed that this was because the party had sacrificed ideology for money.

That concept of selling the soul isn’t just true of politicians, of course. Conservative broadcaster John Stossel, for example, once confessed that he switched from being a consumer advocate to bashing government and trial lawyers:

“I got sick of it. I also now make so much money I just lost interest in saving a buck on a can of peas.”

And there are plenty of tort “reformers” who suddenly understood the significance of what they were doing only after they were injured by the negligence of others.

But the Tea Party is without any meaningful donations, and has the luxury of staying true to conservative beliefs. Will they?

————————

Report: Medical Malpractice Payments Hit New Low

The tort “reformers” won’t be happy with this; yet more evidence that medical malpractice lawsuits are not the problem with healthcare costs.

OK, here you go, short and sweet, the lede:

Fewer medical malpractice payments were made on behalf of doctors in 2009 than any year on record, according to the National Practitioner Data Bank.

This finding contradicts claims that medical malpractice litigation is to blame for rising healthcare costs and that changing the liability system to the detriment of patients will not curb costs.

The value of malpractice payments was also the lowest since 1999. Adjusted for inflation, payments were at their lowest since 1992, a Public Citizen analysis of the NPDB shows.

Also part of the article, malpractice payments on behalf of doctors equals just 0.14 of 1% of overall US healthcare spending.

And for that, there are people who want to close the courthouse doors.

You can read the rest here: Analysis: Medical malpractice payments continue to fall.
——————–
And prior commentary from me here:

The False Premises of Medical Malpractice “Reform” (Response to Richard Epstein in WSJ) (6/30/09)

There’s an old saying, “garbage in, garbage out.” If you use a false premise to substantiate an argument then the result will be worthless. And that is exactly what University of Chicago law professor Richard A. Epstein does today in the Wall Street Journal (via PofL)…
Do Texas Med-Mal Damage Caps Work? (What Do You Mean By “Work?”) (4/14/09)

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?
My Tort “Reform” Op-Ed in Today’s Journal News (7/29/08)

Re “Tort reform needed in New York state,” a July 23 letter by Cortes E. DeRussy of Bronxville that blamed the “trial-bar friendly state Legislature” for refusing to enact malpractice reforms needed to keep doctors from fleeing the state:

The DeRussy letter repeated a common myth in an argument for tort “reform,” claiming that one of the primary reasons for increased medical malpractice insurance was “unusually high judgments.” DeRussy couldn’t be more wrong…
The Medical Malpractice “Crisis” Hoax — From Public Citizen (1/24/07)

Since others had already pointed out the Public Citizen report exposing the hoax of a medical malpractice “crisis” I wasn’t going to bother. But there was Pres. Bush last night at his State of the Union speech once again leading people astray, when he said:

“And to protect good doctors from junk lawsuits, by passing medical liability reform.”

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.
Debunking Yet Another Tort “Reform” Column, This Time in Forbes (7/15/09)

I feel like a broken record sometimes, rebutting the same disingenuous tort “reform” nonsense over and over. The latest comes from Forbes (via PofL), in a piece written by Manhattan Institute fellow John Avlon, regarding the amount that New York City pays out in settlements and verdicts….
Why New York Medical Malpractice Insurance Jumped 14% (7/31/07)

You may have seen the screaming New York headlines: Doctors hit with 14% increase in medical malpractice rates! Doctors in high risk specialties paying 6-figure insurance premiums! Insurance reserves so low carriers may become insolvent! Blame the lawyers! came the cry from the doctor’s, for surely it must be due to medical malpractice cases. A little protectionism called tort “reform” would go a long way to curing the problem. Right?

Ahh, but truth is another matter…

hat tip: JusticeDotOrg