Overlawyered: Chronicling The High Cost Of Our Legal System

Kerry, malpractice and “going to China”

For at least several weeks Sen. Kerry has been publicly floating the theme that he and running mate John Edwards can achieve medical malpractice reform in the same way that Republican Richard Nixon could achieve rapprochement with China, presumably because their ticket would have the sort of credibility with the litigation lobby that the late GOP president had with dedicated anti-communists. The trope appeared in a Cape Canaveral, Fla. speech in late July (see National Public Radio audio coverage, Jul. 26) and more recently in response to a question in Grand Rapids, Mich. (Unofficial Kerry for President blog, Aug. 2; similarly (and by same writer), Doctors and Nurses for John Kerry site; Robert S. Greenburger, “Doctors Diagnose Kerry as High Risk”, Wall Street Journal, Aug. 5 (sub); see also Joel B. Finkelstein, “Edwards’ trial lawyer past raises red flags for doctors”, American Medical News (AMA), Jul. 2).

We reported on the controversy last week (Aug. 5). Martin Grace has several follow-up comments (Aug. 6) on the breeziness of the Kerry proposals toward federalism, as well as on the apparently incurable Democratic tendency to blame the whole problem on insurance providers, even though “the largest med mal providers in a given state tend to be owned by the docs” who have no very obvious incentives to self-gouge (more, more). And George Wallace at Decs & Excs (Aug. 5) has more about Edwards’ enthusiasm for curtailing the McCarran-Ferguson Act, which leaves insurance regulation to the states. (Update: David Giacalone, Martin Grace and Wallace have much more on this, follow the links).

A reader on Capitol Hill writes to say that from the appearance of things, the Kerry proposals appear to differ little if at all from proposals repeatedly put forth by congressional Democrats as alternatives to GOP-sponsored medical malpractice reform. Those proposals (the correspondent adds) have been at best weak as a way of curtailing litigation, and in some instances would actually encourage it. For example, the Democratic alternative Rep. Conyers offered to H.R. 4280 can be examined in the Congressional Record dated May 12, 2004. It includes a (toothless) mandate for nonbinding mediation of state court malpractice cases, and takes care to specify that this mandate will pre-empt and invalidate all otherwise prescribed forms of alternative dispute resolution — including those currently required in some states which do much more to curb litigation — as well as all contractual barriers to suit. Having looked through this Conyers amendment, however, I should probably retract my hasty assumption (voiced last week) that the Democrats on the Hill had been big defenders of federalism on this issue — their bill seems just as willing as the Republicans’ to dictate to state courts, it just wants to dictate different things.

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Update: Further Kennewick Man litigation likely

The Los Angeles Times reports that the eight-year-old legal battle over scientists’ attempts to study the 9,300-year-old bones (Feb. 14) is probably not over, even though Indian tribes and the Department of Justice decided not to appeal the Ninth Circuit’s ruling to the Supreme Court. Before, Clinton administration objections under the Native American Graves Protection and Repatriation Act prevented study. Now, the U.S. Army Corps of Engineers, which has custody of the bones, is objecting under the Archaeological Resources Protection Act of 1979 to anthropologists’ plans to study the skeleton. And the tribes have filed papers expressing their intent to continue litigating. In the words of the Houston Chronicle’s headline-writers in reprinting the LA Times article, “Curse of lawyers surrounds ancient skeleton.” (Tomas Alex Tizon, “Skeleton Case’s New Bone of Contention”, Los Angeles Times, Aug. 2 (via Bashman); Eli Sanders, “An 8-Year Fight Ends Over a 9,200-Year-Old Man”, New York Times, Jul. 20; Tim Sandefur, Panda’s Thumb blog, Mar. 25; Bonnischen v. United States; Friends of America’s Past website and Aug. 4 press release).

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Lerach to Google: cough up bettor bucks

“Lerach Coughlin Stoia & Robbins …filed a class action against Yahoo Inc., Google Inc. and 10 other Internet search engines that claims they have been promoting illegal gambling on their Web sites and requests that they fork over the ad revenue. The complaint, filed Tuesday in San Francisco Superior Court, requests that the search engines put revenue from advertising Internet gambling into a fund that would provide restitution to California Indian Tribes or other licensed gambling businesses in California. The complaint says money in the fund would also go to the spouses of gamblers who have had community property taken away as a result of illegal gambling and to the state treasury.” (Brenda Sandburg, “Casino Come-Ons Return Bad Result for Search Sites”, The Recorder, Aug. 5; David Legard, “Gambling lawsuit filed against top Web content sites”, IDG/Computerworld, Aug. 4). For questions about the legality of accepting advertising from offshore casinos, see Apr. 21. Earlier lawsuits have gone after credit card companies for facilitating offshore gambling transactions (see Dec. 7, 1999), but a Lerach attorney said this was the first suit against search engines.

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Super-sized something

“Although [filmmaker Morgan Spurlock in Super-Size Me] generally presents critics of McDonald’s as public-spirited activists, he can’t resist taking a shot at Samuel Hirsch [Jul. 25 and Sept. 12, 2002; Jan. 23, Mar. 25-30 and Jun. 20, 2003], the lawyer who filed the first two obesity lawsuits against fast food restaurants. When Hirsch is asked his motive for getting involved in such litigation, he looks puzzled. ‘You mean, motive besides monetary compensation?’ he says. ‘You want to hear a noble cause?’ That’s his only appearance in the film.” (Jacob Sullum, “Big Mac Attack”, Reason, Jul.). Update Mar. 23, 2005: Hirsch sues Spurlock and film distributor.

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U.K.: terrors of the magazine intern

Want to spend a bit of your summer holiday helping out around the office of a venerable British periodical? Before you can start filing or photocopying, you’d better prepare for a government-mandated mini-seminar in workplace hazards. “The fact remains that the only job her week at The Spectator prepared Lucy for was that of a health and safety officer, or a serial bringer of law suits against employers with loose telephones and no barrier creams.” (Mary Wakefield, “Work experience is all about health and safety”, Daily Telegraph, Jul. 26).

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“$112 Million Medical Malpractice Verdict Dismissed”

“A Brooklyn, N.Y., judge [last month] dismissed a $112 million medical malpractice verdict — the third-largest in the state’s history — saying a local hospital could not be blamed for an aneurysm that left a man a quadriplegic. Brooklyn Supreme Court Justice Melvin S. Barasch said that although the case was ‘one of the saddest’ he had heard, the jury had no rational basis for its verdict.” David Fellin’s lawyer had played the jury a “day-in-the-life” video of his disabled client “in a nursing home, where he needs constant care. He also told the jury about Fellin’s mother, whose life, according to Barasch, now revolves around visiting and caring for her son. The judge said the film ‘brought tears to everyone’s eyes.'” However, the judge said, that’s no substitute for showing that defendant Long Island College Hospital had negligently caused Fellin’s injuries, which he said the plaintiff’s side hadn’t shown. (Tom Perrotta, New York Law Journal, Jul. 15).

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Kerry malpractice plan

According to one of his health care advisers, the Massachusetts Senator actually supports “meaningful but enactable” malpractice reform, according to a new report. (Mark A. Hofmann, “Adviser says Kerry supports malpractice reform”, Business Insurance Daily News, Aug. 4). The Kerry campaign website has more (scroll down). George Wallace at Decs & Exs (Aug. 4) doesn’t think there’s much here that’s new, but we’re not so sure, especially on the punitive damages language and in the failure to raise federalism objections which ordinarily are front and center in Democratic resistance to liability reform at a national level.

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“Asbestos X-rays rechecked”

“A new look at X-rays used to help win billions of dollars for asbestos victims detected abnormalities in only 4.5 percent of the X-rays — not in 96 percent, as medical experts intitially testified. The study by Johns Hopkins University radiologists found that medical experts who testified on behalf of plaintiffs in asbestos suits almost always found something suspicious on their X-rays, whether it was asbestos dust or a likely malignant tumor.” The study appeared in this week’s Academic Radiology, a scientific journal. (Bill Scanlan, Rocky Mountain News (Denver), Aug. 5; Reed Abelson, “Study Raises Questions of Witnesses”, New York Times, Aug. 4). See, among many other entries on this site, Jan. 21. More: the journal Nature weighs in (Emma Marris, “Asbestos study suggests bias in experts”, Aug. 5). Yet more: GeekPress, MichMedMal.

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