TorteDeForm

Cyrus Dugger

Reagan’s Famous Pop Tort

For those of you who have tuned in to our “Tort ‘Reform’ Hypocrites” series, you already have insight into the quickly shifting stances of at least some important public supporters of tort “reform.”

Some of you may also have read my op-ed on the topic as well.

It’s a pretty large phenomenon: public supporters of tort “reform” who when injured waste no time turning to the courts to utilize the very legal avenues they publicly criticize and attempt to foreclose through their public advocacy and lobbying.

But there’s another kind of slippery proponent of tort “reform.” It’s the kind that tells a story about a lawsuit, but intentionally omits portion of the story in order to satirize and marginalize the merits of the suit.

I’ve written a series of posts on these “pop” tort tales summarized by Professors William Haltom and Michael McCann. In their book, Distorting the Law, they outline perhaps the most influential pop tort told by one of the most influential public figures in American history: President Reagan.

You may or may not have heard the story of the CAT Scan Psychic. Here’s an overview of the “pop tort.”

A woman who goes to get a CAT scan tells the radiologist that she had previously had a severe allergic reactions and was told to avoid iodine based dyes. The dye of the CAT Scan is iodine based, and as such the woman was concerned she would have a severe reaction if it was administered. The radiologist dismissed the warning and persisted in attempting to administer the dye. The radiologist then convinced the woman to allow her to apply a small amount of the dye as a test. The patient relented and quickly went into a severe anaphylactic shock causing severe pain, welts and hives for weeks, and an inability to deeply concentrate without the onset of strong acute headaches.

This woman was a professional psychic who national and local law enforcement officials confirmed had helped solve crimes in the past. She filed a medical malpractice claim for her pain and suffering as well as her loss of income. Although she had been credited with assisting law enforcement as a psychic, the judge threw out her claim for loss of income resulting from her inability to continue to work as a psychic because of her headaches. The only claim that advanced was for her pain and suffering related to the botched procedure.

In less than an hour the jury awarded her $600,000 (ultimately becoming $986,000 with accrued interest). The judge ruled that the award was “grossly excessive” and ordered a new trial.

The second trial was ultimately dismissed after the judge ruled that the plaintiff’s medical expert lacked qualifications. This ruling was affirmed by a divided Pennsylvania Superior Court.

This woman ended up not getting a cent in compensation, let alone payment for her subsequent related medical care.

The news media only followed the story to the initial award in the first trial and then stopped covering the story. Indeed, the story has been and still is used by tort “reformers” to portray our civil justice system as a joke to be ridiculed. There’s a lot to say about this portrayal of what clearly reads as a reasonable basis for a malpractice lawsuit, but let’s focus on what President Reagan (a very strong supporter of tort “reform”) actually said about the case:


Last year a jury awarded a woman a million dollars in damages. She claimed that a CAT scan had destroyed her psychic powers. (Laughter.) Well, recently a new trial was ordered in that case, but the excesses of the courts have taken their toll. As a result, in some parts of the country, women haven’t been able to find doctors to deliver their babies, and other medical services have become scarce and expensive. – Distorting The Law, 3

This story is artfully told in a manner that is not untrue, but omits key points of the story, which would otherwise shed a different light on the matter.

Yes, the woman was awarded close to a million dollars, BUT the actual award was 600,000 with the rest being accrued interest.

Yes, the woman claimed the CAT scan destroyed her psychic powers, BUT that part of her claim was thrown out early on and had nothing to do with her $600,000/986,000 award (of course also no mention of her previous assistance to the police).

Yes, the case was dismissed, BUT this example does not in anyway actually support the assertion that this case was an “excess” of the courts, or for that matter that “the excesses of the courts have taken their toll.”

Yes, surely, in some parts of the country women couldn’t find doctors to deliver babies and in some places the cost of medical services went up, BUT this problem stemed from the natural variances of the medical malpractice insurance market, normal inflation, and the occasional scarcity of doctors in some rural or unattractive locations. Moreover, Reagan’s point is not technically untrue from a more general point of view because it is of course IMPOSSIBLE to claim that a woman can always find a doctor to deliver her baby in EVERY PART OF THE COUNTRY AT ALL TIMES.

The case has also been cited by the top advocates of tort “reform” in their flagship pieces of literature including: Peter Huber in Galileo’s Revenge, Walter Olson in The Litigation Explosion, and Charles Sykes’s A Nation of Victims in ways that characterized the CAT scan case as “typical” of law related epidemics or as “an example of routine failure by the civil courts.”

The tort “reform” pop tort strategy is to tell a selective truth about these types of stories and our civil justice system, and to forget or marginalize the part of the story they don’t want the public to know.

*The facts of this CAT scan story are paraphrased from the text of Professors William Haltom’s and Michael McCann’s Distorting the Law (p.2)

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Posted at 11:02 AM, Mar 19, 2007 in
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Comments

So did the doctor get their money back for the cost of defending themselves against the claims that the woman lost her psychic powers (a claim you strangely seem to defend?). Or did the civil justice system fail to compensate them, and perhaps Olson and Huber and other reformers had a point?

Posted by: Ted | March 19, 2007 8:23 PM

Ted,

Why not directly take on the substantive thrust of the post instead of trying to direct readers to your own small generalized point about any litigation? For example, you could discuss how do you feel about the misleading nature of this characterization of the story. That's what this post is actually about, why not just buckle down and address that point?

In any event, by your implied rationale you would only support lawsuits that ultimately won at trial. Anything else would mean that money was wasted. You attempt to create an impossible standard with which you would outlaw all (or just complain about) cases that don't win at trial, even if they came close.

But with an arguable case even with strong evidence, you can't be absolutely guaranteed to win.....

That's like saying only criminal prosecutions that are ultimately successful were valid to have brought as criminal prosecutions, even if the suspect had a lot of evidence against them, which merited a trial.

Posted by: Cyrus Dugger | March 20, 2007 10:21 AM

The substantive point is that the system didn't work. She brought a frivolous claim, forced an innocent defendant to expend money to defend himself, suffered no consequences, and that Olson and Huber and Reagan were correct--it is you who is ignoring the substantive point that they made.

Posted by: Ted | March 20, 2007 2:09 PM

Why not directly take on the substantive thrust of the post instead of trying to direct readers to your own small generalized point about any litigation? For example, you could discuss how do you feel about the misleading nature of this characterization of the story. That's what this post is actually about, why not just buckle down and address that point?

Well, what is "the point"? That the media doesn't always cover stories accurately? You won't get any dispute here. (But there are plenty of cases where the coverage is slanted the other way.) Why is that more important than the substance of the case in question?

In any event, by your implied rationale you would only support lawsuits that ultimately won at trial. Anything else would mean that money was wasted. You attempt to create an impossible standard with which you would outlaw all (or just complain about) cases that don't win at trial, even if they came close.

I can't speak for Ted, but I think you miss his point and I know you miss the underlying point. All you care about is that plaintiffs get compensated for their losses; you don't care whether defendants get compensated for theirs.

Repeat after me: "loser pays." The problem isn't that people bring suits that lose; the problem is that when the plaintiff wins, he gets compensated, but when the defendant wins, he still loses.

Posted by: David Nieporent | March 20, 2007 6:40 PM