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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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Stealthy wealthy: How Harold Simmons’ political giving has benefited his business empire – Sunlight Foundation Reporting Group

In broken tort reform, buying elections, Campaign Finance, Donors, Get the Ca$h, medical malpractice, propoganda on March 14, 2012 at 8:25 pm

I no sooner post about a curious super PAC donor then I see how one really rich guy can wage war against what he sees as an injustice to the social order and get his way.  Even though I disagree viscerally, I don’t have a billion dollars to counter his efforts.

I will quote at length from the article,  Stealthy wealthy: How

BUDA, TX - NOVEMBER 2:  Conservative supporter...

Image by Getty Images via @daylife

arold Simmons’ political giving has benefited his business empire – Sunlight Foundation Reporting Group, for it sums the situation up neatly.  Bill Allison writes:

In Texas, Simmons has contributed to limit the ability of plaintiffs to sue. Among the larger recipients of his largesse is the Texans for Lawsuit Reform PAC, which in May 2011 celebrated Gov. Rick Perry’s signing of a bill it lobbied for that contains provisions–including requiring plaintiffs in tort cases that lose to pay the fees of those they sued–long sought after by business interests. Simmons gave the group $1.9 million between 2000 and 2011. Perry has gotten more than $1.3 million in support from Simmons in his gubernatorial and presidential runs. Simmons also contributed $100,000 to the Yes on 12 campaign, a ballot referendum that allowed the Texas legislature to cap damage awards for pain and suffering in lawsuits against medical providers; Texas voters approved the ballot initiative in 2003. (emphasis added)

Under the guise of being pro-business (which is code for anti-individual), such social engineering is achieved through the judicious use of large amounts of cash.

While his harm is in Texas, and, arguably, the citizenship voted it in (the citizenry often votes against its own self interest), such activity occurs in Michigan.  Lower the dollar amounts and focus attention on electing the Supreme Court judges, and the mechanism is the same.

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Super PACs $500,000-Plus Donors Account For Majority Of Money

In buying elections, Campaign Finance, Donors, Get the Ca$h, medical malpractice, propoganda, Think tank on March 14, 2012 at 3:51 pm

Super PACs $500,000-Plus Donors Account For Majority Of Money.

I was reading an article about the top 49 donors to Super PACs, seeing familiar and expected information.  49 donors have contributed $500,000 or more, making them the 1% of the current election cycle.  Again, expected and not surprising.

Then, as I was clicking through the slideshow of top donors (their pictures and a little blurb about who they are and to whom they contribute), when I came across slide number 5: Cooperative of American Physicians.  Let that sink in.  With the mega-rich donors (Harold Simmons from Dallas, funder of Swiftboat, giving to Romney; Sheldon Adelson prodding Newt Gingrich to the next state; etc.) and typical lobbying groups (AFL_CIO) appears an insurance company that specializes in medical malpractice coverage.  Interesting.

What interests a med mal insurance company in the Presidential Election to the point that they contribute $2,470,292 to their own super PAC?  In business, every investment demands a return, and this is a sizeable investment from a firm that supports, purportedly, a niche market.  The company states on its web site that it is physician owned and governed.  Its mission: “We support  and protect California’s finest physicians.”

“Support and protect” sounds like a security firm…which I guess it is.  By heading off potential litigation before it is able to come to verdict, the “finest physicians” need not worry about paying for mistakes.  Purchase access and influence to the lawmakers and erect enough barriers and hooks to dismissal, then litigation swings in favor to the Defendants.

Does the Cooperative of American Physicians wish to extend its reach outside of California?  Their name seems to indicate such, but the website lists only coverage for California physicians.  Their FAQ page may be found here.

2.4 million can buy a lot of law.

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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.