January 1st, 2008

You Call That A Tort "Reform" Survey???

Most people with a modicum of intelligence know that a survey’s results are only as good as the questions that are asked. Rigging survey results is easy. The question here: Did Republican New York State Senator Stephen Saland give his constituents a deliberately rigged survey, or inadvertently screw up?

Here is the question that came out of a previously unpublished survey that I received via email from a constituent:

Would you support limiting medical malpractice law suits in order to decrease health care costs?

The problem with the survey question should be self-evident, but if it isn’t to you, I’ll spell it out: Medical malpractice suits are a tiny part of health care costs, so closing the court house door to people, like they do in California, will have no effect. Thus, the question asks you to assume as true its faulty premise.

Should you take my word for it without data? Nope. So let’s open up a copy of the recent report by Public Citizen that they put out in response to New York’s self-inflicted medical malpractice insurance “crisis.” In it, Public Citizen notes (with citation to authorities at pp. 6-7) that:

The sum of medical malpractice payments made by New York’s doctors in 2004 was
$765.8 million, accounting for only 0.61 percent of the $126.1 billion New Yorkers spent on health care that year (the most recent year for which such costs are available). Medical malpractice payments were no more than 0.77 percent of New York’s overall health care costs in any year since 1991.

With such a small sliver of health care costs being devoted to malpractice payments, it is foolish to assume that limiting malpractice suits will lower health care costs. It won’t happen. Worse still, a grant of some type of immunity or protection to a person that negligently injures another would shift the burden from that person to the injured and ultimateley to the taxpayer. That happens when the injured person starts consuming tax dollars from Medicaid and ending their tax payments from work due to their disability. Why a person that believes in limiting government, as Senator Saland presumably believes based on his Republican credentials, would want to provide governmental immunity/protection to a tortfeasor, escapes me.

So the question is, did Senator Saland submit a rigged question to his constituents on purpose, or was it inadvertent?

One way to know is to look at the other questions he asked. Here are a few that I cherry picked from the 12 that were asked:

  • Would an additional tax incentive for energy efficient cars and home heating sources encourage you to switch to using alternative energy?
  • Do you support legislation to make same sex marriages legal in New York?
  • Do you support the legalization of medical marijuana if it is prescribed by a doctor for seriously ill patients?

These look like fine inquiries. Since most of the questions on the form look like legitimate inquiries to constituents, even if some are imperfectly phrased, I think the questionnaire was likely done in good faith.

But how did such an obviously awful question about tort “reform” get included? I have to assume it is simply a lack of knowledge on the Senator’s part, that is no doubt encouraged by the medical industry and the insurance companies. I can see no other explanation.

I finish here by saying I’ve never met the Senator, and have no idea what his record is on closing the courthouse door to those that are injured, but I’m a glass-is-half-full kind of guy, so I give him (and everyone else) the benefit of the doubt unless I’ve been given a darn good reason to assume otherwise. I therefore assume the question was written out of ignorance, not as a political ploy of sending out a rigged question.

But it also means that if this Senator is under the mistaken impression that limiting medical malpractice suits will decrease health care costs, then so too are others.

(Eric Turkewitz is a personal injury attorney in New York)

 

January 1st, 2008

Another Tort "Reformer" Sees The Light

Dr. Dave Stewart is a California anesthesiologist. He supported tort “reform.” Then his 72 year old mother died after knee surgery from an undiagnosed bowel obstruction. When the family tried to hire a lawyer, they were turned down by two dozen different medical malpractice attorneys. (LA Times: Lacking Lawyers, Justice is Denied)

Why were they turned down? Because California has a $250,000 cap on non-economic damages (pain and suffering). And since his mom wasn’t working, it meant that any recovery was very limited. When you figure in the tens of thousands of dollars that might be needed for the case, and the vast amount of time, and the high risk of taking such cases, the lawyers weren’t interested.

Now guess what? Dr. Stewart isn’t such a fan of tort “reform” anymore. Surprised? Me either. It happens like all the time. Remember tort “reformer” Robert Bork? He sued big time for his injuries. Ever hear of Frank Cornelius? He wrote in the New York Times in 1994 how he was “crushed by his own reform.” In fact, the blog TortDeform has a gallery of what they term the “hypocrites of tort reform.”

Perhaps these people fall in the category of, “What’s good for thee is not good for me.” Or, perhaps, they have simply never given full thought to the true ramifications of their actions.

(hat tip: Day on Torts)

(Eric Turkewitz is a personal injury attorney in New York)

 

December 28th, 2007

Blawg Review of the Year Nominations

The anonymous Editor of Blawg Review has opened nominations for Best Blawg Review of the Year. The nominating is open, according to his rules, only to those that have hosted one of the past 140 Blawg Reviews or those that have already signed up for a future one. (Edit: Nominations are now open until Jan. 14th, due to the holiday.)

The editor is looking for a peer-reviewed award (or as close as the legal blogosphere can approximate), as opposed to a popularity contest.

Since he points out, quite rightly, that such “best of” awards are so highly subjective, I’m going to participate and nominate by listing those reviews that inspired me when I wrote my marathon themed Blawg Review #134 this year. The editor’s recommendations of some of the presentations that might be considered for nomination, which include mine, are up at Virtually Blind.

In listing these reviews, I tip my hat to each as I borrowed ideas and concepts from each writer and stood on their shoulders to create my own:

#89, The Mummers Veil by the anonymous Editor himself, inspired me to indulge in fantasy visits with different bloggers. A rigid regard for the truth, I understood, was not necessary to presenting the best posts of the week. The point was to simply point to good law blog posts, making it available in a fun, creative way. Doing so in the context of a story often makes it more interesting (if you can pull it off without being “annoying, strained and distracting” as David Giacalone once wrote).

#101, from Diana Skaggs at The Divorce Law Journal, based on the Kentucky Derby. Since I had decided one month earlier to host a November review based on the NYC Marathon, a review based on the Kentucky Derby certainly caught my interest. She galloped through the legal blogosphere in winning fashion in a creative review that clearly was long in the making. I loved watching her mid-stride integration of law and racing.

#106 from Brett Trout at IT Blawg was based on a motorcycle race track. With another racing review, I took mental notes on how different parts of a race course, or different concepts, might be used to help introduce different legal topics in a very non-traditional manner.

#127, from Anne Reed’s Deliberations, was based on jury selection. As a trial lawyer that obviously appeals to me, and I watched as she took 17 different selection tips and matched them to posts. In her review however, she didn’t just link but went into the personalities of the posters to match them up with different concepts.

#137, by Colin Samuels at Infamy or Praise, was based on the third part of Dante’s Divine Comedy, Paradise. While #137 came after my own, the Inferno themed #35 and the Purgatory themed #86 came before. In these, Dante travels with his guides, the poet Virgil and later Beatrice. This inspired me to add a guide of my own — Marty, an alter ego or one-man Greek chorus — who ran the race with me and would drop in from time to time to comment. While I couldn’t pull off the wonderful literacy of Colin’s pieces, his posts were there to remind me that the bounds of a review are limited only by the creativity of the mind.

Two final notes on the Blawg Reviews:

First, while the editor has an interesting idea with the nominating process, the reality is that many folks are out of town for the long holiday weekend. I’m guessing the nominating will therefore be very light. Having a yearly award in April would have a much better response rate. Yeah, yeah, I know. (Edit: Nominations are now open until Jan. 14th, due to the holiday.)

Second, it seems that the vast majority of reviews are written by practicing attorneys. Professors are notably absent. (In fact, professors rarely even acknowledge their existence, an exception being Prof. Dan Solove and his band of merry Concurring Opinionators for #75.) I haven’t figured out why yet, since the primary purpose is to simply round up interesting blog postings, and their own postings are often included. Is there a reason professors are less likely to let their hair down and go outside their usual comfort zones?

Links to this post:

An Honor To Be Nominated
Blawg Review was honored to be nominated by the ABA Journal editors as one of the Blawg 100, where our humble Blawg Review blog was unfortunately categorized under the heading “Generally Speaking” along with many of the most popular law
posted by Editor @ January 04, 2008 2:29 PM

not another blawg award
with the success of the simply the best blawg meme and the recent announcement of dennis kennedy’s blawggies, following the aba journal’s blawg 100, it seems the last thing the blawgosphere needs is yet another list of who’s the best
posted by Editor @ December 28, 2007 2:55 AM