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Why fighting judicial campaign money matters

In broken tort reform, buying elections, debunking the myth, ideology, medical malpractice, MI Supreme Court, propoganda, Uncategorized, undo tort reform on June 13, 2013 at 2:57 pm

In response to an article posted on Mother Jones (“Secret Money Is Now Swaying State Judicial Elections“), I posted the following:

There is a strong “Why should I care?” aspect to judicial buying.

Here is a scenario: you go to your local hospital with an emergency.  Through negligence or error you receive injurious care.  You wish to sue.  You shop your case to local attorneys first, but few

lawsuit lotto

lawsuit lotto (Photo credit: Shira Golding)

show even slight interest.  Small town lawyers need medical care too.  You call the big firm that funds the state’s hockey team.  Their nurse indicates that your case is “not a winner” and wishes you luck.

You find out that because of malpractice caps (put in place to protect innocent doctors from “runaway juries” and “slick lawyers”), counsel is hesitant to take any case that is not an outright slam dunk.  No gray area cases or ones which a jury could be swayed.  The cost of litigation is just too high.  Counsel has to find an exact equal physician to testify (their expert will be put on a mini trial within the trial) before the trial, submitting an Affidavit of Merit (these start at $1500 and go up, depending on the hired gun).  Then this expert must testify at trial, and already your case is running up quite a tab (a contingency fee for a capped case starts at $25,000–which sounds like a lot until you break it down into costs and fees).  So, Counsel picks only obvious winners.  Others get a smile and well wishes.  Merit has little bearing.
So, with the Statue of Limitations running (two years is typical so that physicians don’t have the “fear of litigation” looming over their heads), you push on, convinced that your bad doctor should be ferreted out of the system; that he should not be harming others like he harmed you.
In order to file your case, you will need to, six months in advance, file a Notice of Intent.  This gives the doctor six months (actually, it gives his insurance carrier–he will not have any direct contact with the case until called to testify–and few ever make it that far) to prepare.  Medical records are shared (HIPAA is automatically waived and your medical records are shipped around from insurance office to Defense Counsel to their own expert witness hired guns).  You give up all claims to HIPAA protections when you move to sue.
The six months pass and Defense (as they are now known–usually a well-healed firm from a large city on retainer by the insurance company) establishes their contingency case, reading to throw motions for dismissal as soon as the actual Complaint is files (the Notice of Intent is really a preview or draft of the Complaint).  The Complaint is filed and the Affidavit of Merit is supplied (if there is more than one defendant–say the physician and the hospital for lack of adequate oversight–the cost of this “pre-litigation requirement” moves into the tens of thousands).
Defense will immediately file a Motion to Dismiss, attacking the Affidavit of Merit (mini-trial even before the trial starts–Defense strategy is to have the case thrown out before a jury ever hears it).
Your small case, up against the best legal counsel in your state, will have many options for the judge to dismiss it.  The legislators in your state, fearing that “good doctors” will seek less litigious states, have enacted (often at the heading of the insurance lobby) “tort reforms” (think of “Hot Coffee”) that give the judge ample discretion to head Defense’s claims.
Elected judges, backed by a packed “tort reformed” legal structure, biases your legal claim from the beginning.  Upon appeal, additional panels of judges, also elected, will determine the validity of this structure.  An appeal to the State’s Supreme Court, also elected, will “rule” along party lines almost exclusively.
You are still injured, probably for life.  The bad doctor is still “practicing,” injuring others who, themselves, will have no legal recourse.
Insurance wins (the don’t lower their rates in accordance to the numbers of cases filed–only 1 in 8 of valid cases are even filed–and few of them make it to trial–fewer still result in a verdict for the injured party).
Bad doctors are not held accountable.
Injured patients will seek the medical care for their injuries available to them: most often at the public’s expense (Medicare/Medicaid).
And if the judges are elected, then the legislation that has also been “influenced” by campaign money, headless of legitimacy, stands.
Medical Malpractice is the 6th leading cause of death, ahead of victims of gun violence.
With a purchased judiciary, there is no justice.
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How expensive is it to file a Medical Malpractice claim?

In broken tort reform, debunking the myth, Get the Ca$h, ideology, medical malpractice, undo tort reform on May 9, 2012 at 7:31 pm

Inherent in any claim is the cost of bringing the action.  Who is going to pay is the question, cutting both ways, in every

The Barrister's Dream

The Barrister’s Dream (Photo credit: Bonnetmaker)

case.  Will the medical practitioner/institution pay its fair share for the pain, suffering and death it/they inflicted?  Will the plaintiff pay the cost of bringing suit in an environment where the odds are greatly stacked against her?  The real answer is too often on the latter.  The plaintiff, hurt, injured or dead (the survivors seeking justice) will, all too often, bear the costs of trying to obtain justice.

Please be advised that under Michigan’s ethical rules, all costs of litigation (copies, postage, deposition fees, expert fees) are the ultimate responsibility of the client, even under contingent fee arrangements.   All of our clients sign written detailed fee agreements (citation).

So, you walk into a Med Mal attorney‘s office, or are wheeled in or such, and immediately you are, gently it is hoped, brought up to realize a strict and brutalizing reality: if the stars do no align, you will be the one on the hook for the pleasure of the experience.

It is well thought, although incorrect, that the plaintiff attorney will bear the costs of bringing suit.  With that line of reasoning, the argument runs like this: since the costs of litigation are high, and the plaintiff’s attorney takes such cases on a contingency basis, then the plaintiff attorney will only take the “valid” or “non-frivolous” cases as the plaintiff attorney will be on the hook for all of the costs of bringing the case (copies, postage, deposition fees, expert fees).

That commonly held belief is incorrect.  Patients are victimized by their physicians and then by the judiciary.  Once bitten, twice bit.

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Another Tort retort

In broken tort reform, Get the Ca$h, ideology, undo tort reform on November 1, 2011 at 6:53 pm

I have previously posted about writing a comment on a defense-attorney led site defending the documentary Hot Coffee.

I did it again.   My thoughts are too good to only post once 😉 , so here they are:

I think, by denigrating the main use of the Liebeck case in popular culture, that you are missing the point of both its use in the documentary and in political discourse. For just the very reasons you cite (it was, duh, coffee–nothing to sue over), that case has a special power. For those of your ilk, it embodies the over-reaching of those out for a free ride, meal ticket, or the like. In short, an abuse or misuse of the court.

For others, it is an example of how the courts act as a corrective agent against abuse, corruption, and incompetence (especially medical personnel). Without the correction of a good tort case, industry and business may well still be employing 10 year olds to pull the coal carts, attend segregated schools and the like.

Back to my point…the hot coffee case, suing for being stupid, is the distillation of talking points: until one learns more about it. Point is, the tort in that case worked. McDonald’s altered its practice (which had hurt 900 others to varying, shall I say it, degrees) to the point that such “accidents” (one of McDonald’s arguments–echoed here–was that with such a high number of servings that the accident rate was statistically insignificant: until it happens to you or to one you love) have been reduced.

What you fail to point out is that “tort reform” does nothing to mitigate such suits. Caps on damages, reduced statutes of limitations, affidavits of merit, pre-suit notices, witness requirements, etc., these work to bias a case toward the defense.

“Tort reform,” rather, provides defense with a ready stable of tactics and defences which to attack a case, shielding their clients from a frontal assault. It is defensive jujitsu.

So, with that, I wonder why, as defense counsel, you should complain so much… Nothing could be better for business than more examples of suing for being stupid.

Hot Coffee, torts and the Greater Good

In broken tort reform, debunking the myth, ideology, Think tank, undo tort reform on October 25, 2011 at 8:01 pm

It wasn’t until after I posted, what I thought was a rather eloquent comment, that I realized that the conversation over the documentary Hot Coffee over at the defense-attorney run site Abnormal Use had run itself out back in September and that, alas, my wise words were to go to waste.

So, I am reproducing them here:

I find both the initial “review” and especially the comments at times insight and always engaging.

A few items: a “review” turns to an apologetic when ideology intrudes. I fear this turns toward the latter.

The tort system, as one commenter has noted, works when a jury level-sets the community standard which, over time, settles into a remarkably fair system for recourse and redress. That is, if it is left to regulate itself. Already, at least in my state, there are court rules that define frivolous as well as the penalties for presenting one. Anything else is just biasing the judiciary, which helps no one.

But there it is, the communal tone that, yes, underlies my comments–the larger good should be noted. With “tort reform,” the right to redress malpractice (which is one of the only real means of eliminating harmful physicians) becomes harder, even to the point that rights are neglected, bad medicine continues and protective and beneficial policies and procedures go unaddressed.

Was the coffee too hot? No, the coffee, which is supposed to be “hot” was, actually, “scalding” (for those who work with the plain language of statute, this should not be too quickly overlooked).

I do not order scalding coffee, nor do I have a reasonable expectation of doing so. I have an expectation of getting hot coffee just as I have the reasonable expectation that when I see a physician I will receive care and aid. When this doesn’t happen, then my open avenue to recourse allows me, a single individual, to influence the system, however minute, toward a greater benefit for both myself and others.

Supreme Court Ruling Constitutes Abuse of Democracy | DomeMagazine.com

In buying elections, Campaign Finance, Donors, Get the Ca$h, ideology on February 13, 2010 at 10:16 pm
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When he mouthed, “Not True” during Obama’s State of the Union Address, Justice Alito, one of 5 to vote away funding caps by corporations, took a definate partisan stance.  Read more about the ruling here: Supreme Court Ruling Constitutes Abuse of Democracy | DomeMagazine.com.

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The Players: a Scribe to produce content: Mr. Patrick J. Wright

In broken tort reform, buying elections, ideology, MI Supreme Court, propoganda, Think tank on December 8, 2009 at 11:41 pm

We have already identified that a good, and inexpensive way to lobby the highest state court is to align, enlist or adopt an advocacy group (PAC, special interest…all really just IRS labels). We have also seen how one, lone writer can wrap up ideology in the form of editorials.

It is one such scribe which will be today’s focus: Mr. Patrick J. Wright.  He is:

is senior legal analyst at the Mackinac Center for Public Policy, where he directs the Mackinac Center Legal Foundation. He joined the Center in June 2005 after serving for three years as a Michigan Supreme Court commissioner, a post in which he made recommendations to the court concerning which state appeals court cases it should hear.

We have heard about the Mackinac Center as an arm for “free market” legislation.  That is fine.  It is a free country.

I would note that when filling ones staff with experts, it is a good idea to find ones whose legal experience mirrors ones ideological profile.  That is, hire the ones who have said what you wish to say.  Assure pedigree.  Mr. Wright is the right person for this Right job.  In fact, if one is looking to influence the highest state court, find a person who worked for them, at a lower-level job (reading through the cases and making recommendations on which ones to take up) during the time that you wish to match ruling-wise (the 2003 court was very  conservative, pro-business and all about upholding “tort reform”).

Once on staff, free him up to write to his heart’s content.  You might even get him to land editorials for national news outlets.  His opinion, because it is just that, need not be grounded in fact.  In fact, facts may even begin to muck up a good argument, so be wary in employing them.

Once you have the right man for the job, produce the content, influence the vote, and let the right party win.

The Methods: viral e-mails: Health Care example

In buying elections, Get the Ca$h, ideology on December 2, 2009 at 7:02 pm
viral happens
Image by Will Lion via Flickr

One effective means of distributing ones agenda is to have random people do the distribution for you.  With the web 2.0’s social nature, a document, screed or set of talking points can easily “go viral” in that one person sends it to their friends and family, a sub-set of which sends it to theirs…on and on until an exponential distribution has been made, for free.

One such example landed in my inbox this morning.  An unnamed member of my family sent what was purported to be a letter from a doctor to his congressman outlining the deficiencies in the debated health care overhaul bill.  By ascribing the author as an authority on the matter (a physician, one assumes, would know the business of healthcare), the e-mail carries as much implied weight as an editorial (see yesterday’s note).  By presenting the note as a template, there is the implied, if not outright desire, for the recipient to copy/paste the letter to her congressman.

However, the problem/trick/tool (depending on your use of this method) is that the information provided in the viral e-mail may not be accurate.  In fact, viral e-mails are often ideological talking points that pass themselves off as “fact” or, in this case, learned opinion.

The e-mail reads, in part for it is rather long:

Senator Bayh,

As a practicing physician I have major concerns with the health care bill before Congress. I actually have read the bill and am shocked by the brazenness of the government’s proposed involvement in the patient-physician relationship. The very idea that the government will dictate and ration patient care is dangerous and certainly not helpful in designing a health care system that works for all. Every physician I work with agrees that we need to fix our health care system, but the proposed bills currently making their way through congress will be a disaster if passed.

I ask you respectfully and as a patriotic American to look at the following troubling lines that I have read in the bill. You cannot possibly believe that these proposals are in the best interests of the country and our fellow citizens.

Page 22 of the HC Bill:

Mandates that the Govt will audit books of all employers that self-insure!!

Page 29 lines 4-16 in the HC bill:

YOUR HEALTH CARE IS RATIONED!!!

Notice that a good viral e-mail has a liberal use of capitalization–gets one excited.

Once the information/talking points is placed in its final form (extra points for extensive punctuation, exciting rhetoric and apocalyptic portents), it may not only be e-mailed around, it will also be posted on blogs and other web-sites by the true-believing choir.

In essence, the viral message (it can be e-mail, video, etc.) uses crowd-sourcing technologies to disseminate an ideological group’s propaganda.

Was the e-mail sent by a real doctor?  There is a physician of the same name (a link provided by a helpful re-blogger), but even if the physician is real, and even if he believes his points (two large assumptions when dealing with viral media), that really only comes into play if what he says is true.

Here is a portion of a site that has taken the time to refute, point by laborious point, the entire e-mail.  I give only a snippet:

• Page 22: Mandates audits of all employers that self-insure! False: Section 113  of the bill requires the Health Choices commissioner to conduct a study to make sure health reform does not unintentionally create incentives for businesses to self-insure or create adverse selection in the risk pools of insured plans. There is no mandated audit.

• Page 29: Admission: your health care will be rationed! False: Section 122 outlines broad categories of benefits that must be included in an essential benefits package. It prohibits cost-sharing for preventive care and limits annual out-of-pocket spending to $5,000 for an individual and $10,000 for a family, indexed for inflation. It says nothing about rationing or limiting treatment.

So, quick-format follows:

  1. gather your talking points,
  2. attribute them to an “expert,” wise person or some other authority,
  3. send it to your friends and family,
  4. encourage them to pass it along, and soon, you will be viral.
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The Methods: get your ideas out–editorials

In buying elections, Campaign Finance, Get the Ca$h, ideology, Think tank on December 2, 2009 at 3:49 am

Once you have identified your friends (think tanks, special interests groups, etc.), let them get your agenda out in front of the voting public.  Like the guy at the right, James M. Hohman, who works for the Mackinac Center for Policy (advocates of “free markets”–whatever that may be other than very conservative, Glenn Beck-esque ideologies).  His job/bio, as stated on the center’s web site, reads as such:

James M. Hohman is a fiscal policy analyst with the Mackinac Center’s fiscal policy initiative. He holds a degree in economics from Northwood University in Midland, Mich.

Part of his duties as a “fiscal policy analyst” is to write policy papers (like this one where he argues that Michigan’s economic crisis is not tied to the automaker’s decline–he fails to note to what it is tied–but the tax system is working just fine).   Once a paper is written, it is posted to the center’s web site (like this one: Site Selection, Jennifer Granholm [Mackinac Center]).

The article, though, lives on in other forms.  For instance, that very same article appears as an editorial in the small town newspaper The Big Rapids Pioneer in their News and Opinions page.  Couched as an editorial, this position paper now commands, at least for some readers, the respect of a newspaper’s editorial blessing.

If you, with your agenda, can pull this off often enough, your message, like a drum-beat, will be heard often, with tacitly coded authority granted just by being printed in the editorial page of the local newspaper.  For many voters, those who read and think about things, this may be enough to slide them to your position.

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The Players: Think Tanks: Mackinac Center for Public Policy

In buying elections, Campaign Finance, Get the Ca$h, ideology, Think tank on December 1, 2009 at 10:26 pm

If you are wishing to position yourself for the 2010 elections–and you know you are–you first need to identify (or establish) a “think tank.”  Ignore the thinking part of the name, as your tank will produce news articles, editorials, opinions, studies, etc. that, systematically, advance your agenda.  You also need to establish these tanks as “non-partisan,” which is a nifty way to denounce anyone claiming partisanship–it is not affiliated with any party…[wink, wink].

The Mackinac Center for Public Policy (named after the island–an internal state reference–that will only confuse a poor speller) presents itself as “the Mackinac Center provide incisive, accurate and timely analysis of critical policy issues.

Of course, “non-partisan” doesn’t mean that your donor list isn’t comprised of one party/ideology over another…birds of a feather and all that.

Once you have a think tank(s), or a few dozen, then the business of ideological spamming may commence.

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What have others said about the Mackinac Canter for Public Policy?

  • The Mackinac Center is the largest conservative state-level policy think-tank in the nation. The Michigan-based organization promotes market-driven policies on a wide range of issues and espouses limited government principles. The Center’s success in influencing Michigan policies has served as a model for other state-level think tanks.  http://www.rightwingwatch.org/content/mackinac-center-public-policy
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