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OpEdNews Op Eds    H3'ed 3/12/10

GOP Loves Talk about "Frivolous Law Suits" Relative to "Tort Reform."

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By now everyone, whether they saw the movie or not, is familiar with the scene. Tom Cruise, as Navy Lt. Daniel Kaffee, in A Few Good Men, demands from his antagonist witness on the stand, Jack Nicholson's Marine Col. Nathan R. Jessep, "I want the truth," to which Nicholson blasts back, "You can't handle the truth!"

On the psychoanalytical level, my postulation is that not a one of us either can, or wants to know the truth, because we couldn't handle it, whatever "the truth" really might be. But the truth, on an everyday level, is something else again. Even there, however, my anecdotal observations from what I see and hear and read about suggest that precious few Americans -- most likely folks around the globe, but I don't know about them -- are much interested in much that isn't the most superficial rendition of it; "I know what I know, and don't bug me with nuance or context."

While Marshall McLuhan seems to have been prescient, as well as accurate, when he posited "The medium is the message," nuance and context are everything behind every news story, regardless from whence the story emanates. That Mr. Jones killed a 14-year-old may be bare-bones truth. So is it also the truth if that now deceased youth was a middle-of-the-night intruder who was attacking Mr. Jones with a knife. Nuance. Context. The truth. Every one of us has an abiding moral obligation to ourselves to seek out both nuance and context whenever we acquaint a "story;" much more so when we decide to pass the story along to others.

A couple days ago I received a forward of an email asserting "the Senate health committee voted 12-11 in favor of a two-page amendment that would require all Members and their staffs to enroll in any new government-run health plan." First of all, for those interested (and all should be), an unembellished report of every House and Senate vote, including who voted, and how, all the way back to 1991, is available at click here . It was both the email's right-wing word choices ". . . require congressmen and senators to take the same healthcare [sic] plan they force on us . . ." (Emphasis mine) and the numerous errors -- "health committee" when there is no such thing in the senate, the fact the bill was passed with a 60-vote supermajority last Christmas eve, and having been passed, there currently exists in the senate no bill to make any amendment to -- that prompted me to call BS on that one. Another kick-start clue to the email's intentional fraud was the fact it was unsigned. A person with something worthwhile to add to any discussion doesn't hide behind anonymity.

What any of the preceding has to do with anything pertinent today draws from a March 9 New York Times editorial (click here;emc=th), "A Nonfrivolous Suit," and the chronically stale cliche'd Republican call for tort reform; the GOP's presumed solution to every social dilemma, from world hunger, to prostate cancer, to escalating health care costs. (Note that the editorial did not specifically or directly address what has been one of the Republican Party's favorite whipping boys, but only the fact that not all consumer liability litigation is "frivolous." The reference here to the immorally vacuous GOP pandering is mine.)

The object -- not the subject -- de jure of the editorial was a current case before the courts: Mr. Sutton, a patron of McDonald's, is suing the fast-food purveyor after his lips were scalded by the searing grease that had been captured in a pocket of one of their chicken nuggets. The editorial suggested that, although, like the case of the 79-year-old lady who sued the chain over too-hot coffee, this one too might become the butt of nighttime comics, nuance and context do indeed matter, that such cases should and must be heard, that the public has an inalienable right to expect the food they order from restaurants to be safe to consume, and that compensation should be awarded to victims when that public trust is violated.

As the editorial points out, the context of the too-hot coffee that is never broached is that the 79-year-old "was hospitalized with severe injuries." A personal anecdote might prove as an example: I was in the Army motor pool in South Korea when Sp-4 Snedeker handed me an open-end/box wrench. Ha, ha, ha. I didn't know he'd heated it with a torch before handing it to me. Ha, ha, ha; a good one. The point here is that I had a right to not anticipate that the tool would have been heated with a torch. The anecdote, fortunately, did not scorch my fingers, though it did burn the recollection into my memory, obviously. And Mr. Sutton had a right to not anticipate that, when he bit into the nugget, searing grease would explode in his mouth. And when damages occur, the victim of those damages has a right to fair day in court, no matter that the GOP prefers to think otherwise.

One of the featured speakers at the March 8, 2010 Economic Policy conference, aired by C-SPAN ( was Harvard's David Cutler, professor of Applied Economics. Although not the topic of his discussion on health care reform and the underlying need to control health delivery costs through various means, one of the issues raised was that of tort reform. To hear Republicans tell it, one might be firmly convinced that we can provide quality health care to nearly every American, for free, if we just eliminate all the frivolous tort cases that supposedly are the genesis of malpractice rates that are chasing doctors from their practices en masse.

Borrowing from Lewis Carroll's Alice's Adventures in Wonderland, and what the King said to the Rabbit, "Begin at the beginning," the beginning here is that it ain't so, none of it. No matter what anyone has heard, or who they heard it from. Per the reference above, total annual litigation and insurance costs to US health care compose but 2/10ths of one percent of every health dollar. If this country was to succumb to the GOP mantra, and do entirely away with any and every aspect of malpractice litigation, it wouldn't budge medical costs the length of a single microbe.

Another piece of data cited by the Harvard professor was one oft quoted by the GAO (Government Accountability Office), by CBO (Congressional Budget Office) when it scored the various proffered health reform measures, and by Health and Human Services Secretary Kathleen Sebelius, "Preventable medical errors account for 100,000 deaths annually in the US, and is the leading cause of preventable death" and that another "100,000 die from fully preventable hospital borne infections." (click here and click here and click here) What we know about battlefield casualties, that more are injured than die, is also true about medical errors. If the death or serious injury happened to you, or someone you loved, how willing would you be to forsake that day in court? If you wouldn't, why should anyone?

Moving forward, the State of California, in the '70s, limited non-economic -- "pain and suffering" -- malpractice awards to no more than $250,000. To interject a question, what might be the award-worthy "economic" losses suffered by a child who has yet to enter the workforce, or to someone who is retired? And to insert another, what might be the level of suffering endured by someone whose face has been so severely mutilated that he or she cannot ever again venture into public without bearing the most agonizing of emotional trauma? Nonetheless, putting aside those considerations, the highly consequent fact that pillories the Republican argument absolutely is that the limiting malpractice legislation hasn't stemmed at all the soaring rise of medical costs in the state, nor the unconscionable escalation of health insurance premiums!

Lastly is the nuanced context of malpractice litigation that few are aware of, or want to bring into the discussion. If not all, overwhelmingly most such cases are taken by attorneys on a contingency basis; legal fees and court costs are paid for out of whatever a court awards, or a settlement provides, not by the client up front. Two fundamentals apply up front: one, the case must have genuine merit, and two, the defendant must have minimally sufficient resources to pay the plaintiff's attorney, should it be decided or settled in their favor. If on the face of it the case lacks merit, the judge is likely to toss it from the calendar. And if it's truly merit less, the attorney may even face disciplinary action. Because the costs of just preparing a case are heavy (the filing of interrogatories, issuing both duces-tecum and non-duces-tecum subpoenas, taking depositions wherein a court reported must be hired to attend, the constant filing of court notices, etc.), the duration of the case from commencement to conclusion extraordinarily long, and the opposition both well-heeled and well represented, few, if any, attorneys will entertain taking a case that is "frivolous." They just won't.


The point to all this isn't so much the "frivolous law suit" and "tort reform" blah, blah, blah as it is that everyone owes it to him- or herself to become a critical thinker, not to so readily -- or, better yet: at all -- believe what you're told, regardless the source; certainly not what is proffered by either a Republican or a conservative! And to fight back, letting all around you know that you are not some soaking-up sponge, and that you just will not tolerate being insulted by any presumption you are one.
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An "Old Army Vet" and liberal, qua liberal, with a passion for open inquiry in a neverending quest for truth unpoisoned by religious superstitions. Per Voltaire: "He who can lead you to believe an absurdity can lead you to commit an atrocity."
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