As the Tea Party movement gains more attention, some folks want to know exactly what they believe in. Today’s question: Do they believe in a  smaller, less intrusive, government or will they follow the Republican Party down the path of Big Government Tort “Reform”?

Since the Tea Party is a nascent and disorganized collection, I’m tossing out eight questions for those conservatives in the movement to ponder as they decide which side of the tort “reform” debate they are on,

Source: Does the Tea Party Believe in Conservatism or Tort “Reform”? (8 Questions) – New York Personal Injury Law Blog

If you want to know what  they eight questions are, you’ll have to follow the link.

But defensive medicine - tests and procedures ordered to protect against medical-malpractice lawsuits - can also add to costs.

"As a resident, the first thing you learn is that your license is on the line," said Dr. Faisal Qazi, an Upland neurologist.

Newly graduated doctors learn that if they don't do an extra test and something goes wrong, it would at the very least result in a hassle and loss of productivity and income.

Source: Tort debate lives on - ContraCostaTimes.com

I’d like to see someone argue with a straight face that we need to stop disciplining doctors who make mistakes.  Unless and until we did that, doctors would still be in fear that leaving some stones unturned might result in disciplinary action against them. 

Secondly:

But Chandra, a professor of public policy at Harvard's John F. Kennedy School of Government who has researched defensive medicine, said he believes many of those purported expenses are actually because of the way insurance and government payments are structured.

"The way the system is set up, the more you test, the more imaging you have done, the more you get paid," he said. "But don't just blame the doctors. It's the perverse reimbursement system we have."

Although detractors of the legal system decry frivolous lawsuits, less than 10 percent of patients with a legitimate claim end up suing, Chandra said.

The classic example of “unnecessary tests” is that of the MRI.  Some people argue that physicians routinely order MRI’s when there’s any hint of a head injury, regardless of whether an MRI is needed.  First off, I’d like to note that these and other anecdotes should have absolutely no place in determining the shape of our legal system.  Plaintiffs who have been injured by their doctors need more – much more – than anecdotal evidence to prove their doctor acted negligently.  The quantum of evidence necessary for a patient to have his or her day in court should be no more than the quantum of evidence to eliminate his or her rights.  (I know, I’m naive to assume that political decisions will ever be made with the same precision that judicial systems are made.)

But back to MRI’s.  “When doctors become invested in an outpatient surgery center, they perform on average twice as many surgeries as doctors with no such financial stake…”  And that’s for surgical procedures, not a noninvasive test like an MRI.  The bottom line is that as long as it is profitable for doctors to order unnecessary procedures & tests, they will continue to order them.  This isn’t even complicated enough to be worthy of calling it “Economics 101.”

You know what I’d really like to see?  A doctor run his or her business like trial lawyers do.  “No cure, no fee!”  Maybe that’s not realistic, but unless and until we remove financial incentives for doctors to order unnecessary procedures, doctors will keep ordering them.  And whatever changes we make to the tort system won’t make much difference.

The number of new malpractice suits in 2009 fell to 1,533 from 1,602 cases initiated in 2008. That marked a 47 percent decline from the 2,904 suits filed in 2002.

And in Philadelphia, new malpractice suits fell even more dramatically to 491 from 1,365 in 2002 - a 64 percent drop.

Moreover, doctors and hospitals who took cases to trial in 2009 did well, winning 85 percent of the cases statewide and 79 percent in Philadelphia. That compared with defense-victory rates of 73 percent statewide and 59 percent in Philadelphia from 2000 through 2003.

Source: Malpractice lawsuits decline in Pa. | Philadelphia Inquirer | 04/21/2010

Some credit the decline to tort “reform” passed in 2002.  What I would like to see is a comparison of medical errors from 2002 onward.  If those have increased, it raises some serious doubts as to whether the trade-offs are worth it. 

These days, food recalls are commonplace. But when the supermarket chain WinCo Foods announced last Friday it was recalling thousands of pounds of ground beef for potential E. coli contamination, there was a twist.

The E. coli came to light not because of testing by the government or by WinCo or its suppliers. Instead, it was because a Seattle lawyer is conducting a private study, testing ground beef from retailers all over the country.

Source: Local News | E. coli study by Seattle law firm leads to recall of ground beef | Seattle Times Newspaper

(You’re also welcome to follow me – I’m at @justinianlane.)

• Punitive damages sought in lawsuit against terrorists.  “Sixty-one family members and companions of the 17 sailors killed in the attack on the destroyer Cole have filed a lawsuit against Sudan seeking punitive and emotional damages they were denied in a previous suit.”  I remember some years ago that the former CEO of AIG said that trial lawyers were like terrorists.  A more accurate statement would be that trial lawyers sue terrorists.
• Differing views on Georgia medical malpractice laws.  “We trust 12 people in a jury box to sentence a man to death or to spare their life, but we don't trust that same jury to decide what proper damages are? That doesn't make any sense," he said.”
• Still think we should trust the medical profession to regulate itself? “When state medical regulators sent [Denis’ doctor Steven Kaplan] letters suggesting the dosages were worrisome, he ignored them.  Two weeks after Kaplan last saw the boy, on May 23 2007, Denis simply stopped breathing.  The Miami-Dade Medical Examiner’s Office attributed the death to a life-threatening side effect of over-medication, records show.”
• Why is it that those who say trial lawyers make too much money will think these guys aren’t?  “Amid accusations that it defrauded investors, Goldman Sachs is set to pay more than £3.5 billion ($5.4 billion) in compensation to its staff for the first three months of the year, The Times of London reported.”  That works out to something like $220k per employee for the first three months of the year.  I defy you to show me a law firm with similar compensation.
• Trial lawyers – ahead of the FDA on Avandia. Trial lawyers have been arguing for years that Avandia is unsafe.  The FDA is finally getting the message.
• Revolving door responsible for 29 deaths.  Maybe we should figure out a way to close this revolving door. 
• Lawsuit aims to improve nursing home staffing levels. The lawyers are also suing for $500 per day in statutory damages, which could add up to millions of dollars.  State Attorneys General should bring suits like this.
• Kwame Kilpatrick Cover up? We’ve got a lawsuit that alleges that (a) a stripper performed at the Mayor’s mansion; (b) the Mayor’s wife beat the stripper up, (c) the stripper was killed in a drive-by; and (d) the Mayor tried to cover up the murder.
• I wonder what Diana Levine thinks of this lawsuit. Diana Levine is the “Levine” in Wyeth v. Levine, the Supreme Court case that confirmed people injured by prescription drugs may sue the manufacturers for failing to warn of the dangers of that drug.  I thought of her because we have another case involving Phenergan, the same drug that cost Diana her arm. 
• Should arbitrators determine the enforceability of arbitration clauses? “The question presented to the Supreme Court in Rent-A-Center is, essentially: Can a corporation’s hand-picked arbitrator decide whether it is fair for the company to hand-pick its arbitrator?”  That reminds me of the old Latin maxim nemo debet esse iudex in propria causa: no one should be judge in his own cause. 

In a strong embrace of its traditional First Amendment doctrines, the Supreme Court on Tuesday found unconstitutional a federal law that criminalized the sale or possession of certain depictions of animal cruelty.

. . . .

After oral arguments last October, we reported that Justice Samuel Alito Jr. was the only member of the Court who appeared sympathetic to the law, and on Tuesday he wrote the lone dissent.

Source: Law.com - Supreme Court Strikes Down Ban on Animal Cruelty Videos

Maybe Alito was the only member of the Supreme Court who owned a dog or cat as a kid.

Many insurers have begun notifying Toyota Motor Corp. that they will do just that.

"We're seeking to have them share in some of the financial liability, because part of it is their fault," said State Farm spokesman Phil Supple. 

Source: Insurers to recoup Toyota recall crash claims

Dr. Roland Borrasi chuckled as he told three doctors how he used kickbacks and cash bribes to shuttle unsuspecting nursing home residents into Chicago-area hospitals and psychiatric wards.

"Basically, I have a commodity; my commodity is nursing home patients," Borrasi explained.

He didn't know it at the time, but federal agents were secretly recording that meeting.
. . . .

While taxpayers paid millions of dollars in fraudulent Medicaid and Medicare bills, one Alzheimer's patient was given inappropriate brain radiation treatments, a Borrasi associate told federal agents. A second patient, a disoriented elderly woman, was sent to an acute psychiatric ward after she refused to eat in her nursing home dining hall, another medical professional told federal agents.

Source: Nursing homes: Vulnerable patients, taxpayer money caught in web of corruption - chicagotribune.com

It seems to me that we should weed out this sort of behavior before we start “reforming” the justice system to make it harder for injured citizens to sue.

ALBANY, NY (04/15/2010)(readMedia)-- New Yorkers for Lawsuit Review (NYLR), a diverse coalition of hard working New York businesspeople, health care professionals, farmers and consumers, applauds Assemblyman Felix Ortiz' newly introduced legislation (A.10695) which would set new fee schedules for personal injury trial lawyers depending on the size of the judgment.

Source: New Yorkers for Lawsuit Reform Applauds Assemblyman Ortiz for Introducing Bill to Limit Attorney Compensation

There are several arguments in favor of capping personal injury attorney fees, and every one of them is anathema to true conservatives.  In no particular order, here is an explanation of why various arguments for attorney fee caps are completely at odds with conservatism:

Freedom of Contract.  Conservatives believe that every American should have the right to enter into contracts freely, without the intervention of the government.  They believe that an individual citizen can best protect him or herself from entering into one-sided contracts, and that government intervention does more harm than good.  Yet here we have a law designed to prevent citizens from freely contracting with attorneys.  I would ask any conservative who supports this bill whether he or she would support a bill that caps the amount of compensation a hedge fund manager can receive, or that caps the amount of royalties a recording artist can receive, or that restricts the amount of money that a defense attorney can bill a client.  If conservatives truly believe in the sanctity of the freedom to contract, then they should find legislation like this to be quite odious.

Interference with the free market.  No group of citizens professes to love the free market more than conservatives.  In their view, Adam Smith’s invisible hand of the marketplace will act as the hand of God, washing away the sins of individual market participants.  For example, many conservatives oppose such “liberal” ideas as a minimum wage.  According to the conservative world view, the free market will dictate the best price for services.  If that is so, then the free market should be allowed to decide what a personal injury attorney may charge.  If it is unreasonable for an attorney to charge 33%, 35%, or even a 40% fee, then the free market will put that attorney out of business.  One cannot support the superiority of the free market and also support attorney fee caps.

Socialism & Communism.  Perhaps nothing would put America on the slippery slope to Communism & Socialism faster than economic policies that dictate that an individual may not receive more for his services than what those services are objectively worth.  Those who argue for attorney fee caps often suggest that attorneys receive windfalls for doing little work.  Such an argument invites the government to investigate whether other individuals are receiving windfalls for their work.  Do political heroes really earn $100 thousand dollar speaking fees to show up at a corporate event and speak for an hour?  Do sports heroes really earn tens of millions of dollars to hit, kick, or catch a ball?  Do teachers, who shape the future of our country, really deserve the low pay that they receive in comparison with a stockbroker who does nothing more than act as a middle man?  Our capitalist system is based upon individuals being able to receive whatever compensation that the market will pay, regardless of whether they actually deserve that much money.  Were we to insert some kind of moral gauge into the capitalist model, I would guess that hedge fund managers would earn less than day care workers.  I can’t imagine any conservative wanting to live in such a world.

Paternalism & the “nanny state.”  Walter Olson at Overlawyered has made a nice living for himself by systematically attacking the “nanny state.”  Robert Bork accused liberals of behaving like Olympian supermen who wished to use their purportedly superior intellects to guide the “unwashed masses” of the rest of America.  Conservatives of every stripe believe it is the God-given right of every American to live his life according to his or her wishes.  Should he wish to smoke, eat duck-fat french fries, or ride a motorcycle without a helmet, conservatives will say the government shouldn’t interfere with those choices.  And yet, those same conservatives who despise governmental paternalism change course when it comes to personal injury lawyers.  For some reason, many conservatives believe that Americans need protection from one-sided contracts drafted by wily lawyers.  Apparently, the same consumers who deserve the “right” to be taken advantage of by payday loan centers, by mandatory arbitration clauses, by usurious interest rates, by opaque financial disclosure statements, by forum selection clauses, by overdraft fees, and by dozens of other industries somehow need to be protected from “predatory” personal injury lawyers. 

The truth of the matter is that trial lawyers are some of the biggest financial contributors to progressive political candidates and causes.  It is for that reason and that reason alone that some conservatives support attorney fee caps; by capping the amount personal injury attorneys can earn, they limit the amount those attorneys can contribute to the causes and candidates the conservatives oppose.  So in the end, any conservative who supports attorney fee caps is nothing more than a hypocrite who places politics above his or her principles.   

Reducing the number of preventable patient injuries in California hospitals from 2001 to 2005 was associated with a corresponding drop in malpractice claims against physicians, according to a study issued today by the RAND Corporation.

. . . .

More important, the study found a significant connection between the annual frequency of adverse events in each county, and the number of malpractice claims made. For example, under the model created by researchers, a county that experienced 10 fewer safety events in a given year would also expect to see a reduction of 3.7 malpractice claims during the same year, said study co-author Amelia Haviland, a RAND statistician

Source: RAND | News Release | Better Patient Safety Linked to Fewer Medical Malpractice Claims in California

I know this may be a crazy suggestion… but maybe… just maybe… the medical profession should focus on preventing adverse events from occurring, rather than focusing on limiting their liability when the events do occur.

Frequent TortDeform contributor Lee Tilson has been trying to get the medical profession to do this for years.  Surprisingly, he hasn’t made a lot of friends in the medical profession.  Apparently, doctors would rather fight for tort “reform” than fight for the safety of their patients.  For those who say that the medical profession DOES focus enough on patient safety, I ask you why errors like wrong site surgeries still occur.

Thousands of shoppers unknowingly signed their souls over to a computer-game store after failing to read the terms and conditions on their website.
GameStation added the "immortal soul clause" to online purchases earlier this month stating customers granted them the right to claim their soul.
While all shoppers during the test were given a simple tick box option to opt out, very few did this, which would have also rewarded them with a £5 voucher.

Source: 7,500 shoppers unknowingly sold their souls - Odd News | newslite.tv

Considering how few people actually read these agreements, should we reconsider whether or not courts should enforce them? 

Off-label marketing may be against the law, but off-label prescribing is perfectly legal, even common. About one in five prescriptions written in the United States each year is for an off-label use.

The contradiction between how drugs are marketed and how they are prescribed creates a gray area that opened the door for the Allergan case.

Source: Off-label drug marketing threatens patients. It could soon be legal. - STLtoday.com

As the article explains, when a pharmaceutical company gets FDA approval for a drug, the approval is for a specific usage.  For example, Viagra is approved for the treatment of erectile dysfunction.  Pfizer may market Viagra only to treat erectile dysfunction.  As it turns out, some doctors are using Viagra to treat primary pulmonary hypertension (PPH).  Pfizer may not market Viagra to treat PPH.  The reason why is because Pfizer has not demonstrated to the FDA that Viagra is safe and effective in treating PPH.

It’s not surprising that pharmaceuticals want to end the off-label marketing ban.  If they could push their products for the treatment of anything it would certainly increase sales.  I agree with the St. Louis Today editorial that ending the off-label marketing ban would put consumers at risk.  However, I am also sensitive to the manufacturers’ free-speech interests.  So I have a novel solution.

I would end the off-label marketing ban, but I would also end the learned intermediary doctrine.  The learned intermediary doctrine traditionally prevents consumers from suing pharmaceutical companies for failing to warn consumers of the dangers of a prescription drug.  Instead, a consumer has to sue the pharmaceutical company for failing to warn doctors of the dangers of a specific drug.  Because consumers can’t just buy a prescription drug on their own, they have to get a prescription from a doctor.  The doctor acts as an intermediary between the consumer and the pharmaceutical company.  And it is the doctor’s responsibility to ensure that the patient is a proper candidate for the drug.

I believe if we abolished the learned intermediary doctrine, pharmaceuticals would be more forthcoming in their disclosures about specific drugs.  Warning consumers about the dangers of a drug is different than warning doctors.  Pharmaceutical companies would have to do more to educate the public than release a study in a medical journal, for example.

More importantly, abolishing the learned intermediary doctrine would take into account how drugs are actually prescribed.  In reality, many patients see a drug on TV and then decide they want that drug.  They then get an appointment with their doctor, ask the doctor for a prescription, and the doctor writes the prescription with few if any questions.  Instead of acting like a “learned intermediary,” many doctors act like nothing more than a middleman, happy to collect an office visit fee in exchange for a prescription for just about any drug a patient wants.  Abolishing the learned intermediary doctrine would force pharmaceuticals to actively attempt to warn consumers about the dangers of specific drugs.  This can only improve patient safety.

I hope that the off-label marketing ban stands.  But if it falls, I suggest we reconsider the learned intermediary doctrine as well.

UPDATE: I got a very polite email from a representative of Pfizer regarding an error in the above post. From Pfizer:
"Viagra is also known by the chemical name sildenafil. Pfizer markets two formulations of sildenafil: Viagra, which is approved by the FDA to treat erectile dysfunction, and Revatio, approved for the treatment of pulmonary arterial hypertension (WHO Group I) to improve exercise ability and help lessen symptoms and slow down worsening changes in a patient’s physical condition. Thus, while the statement is correct in stating Viagra is not indicated for the treatment of PAH, there is a formulation of sildenafil FDA-approved for the treatment of PAH. "

"I believe Congress has the authority, should it choose to do so, to direct the Supreme Court to permit its proceedings to be televised," Specter said. "The Supreme Court, in a series of cases, has said the public has a right to know what is going on inside the courtroom, and that was the case which involved Richmond Newspapers. Well, in an electronic era, where the public gets so much of its information via television or via radio, there ought to be that access."

Source: Law.com - Specter on Supreme Court Cameras and Candidates

• $110 million dollar class action settlement comes… 26 years later.  This was a settlement for E-Ferol, a vitamin shot that killed around 40 infants and children in the mid-eighties.  The wheels of justice do turn slowly sometimes. 
• Pharmaceutical company files suit to prevent low-cost version of “centuries old” drug from being sold.  Remember the old tort “reform” story that lawsuits drive drug prices up and manufacturers out of the market?  It’s true in this case – but a pharmaceutical company is behind the lawsuits.  I wonder if the “reform” crowd thinks this is an acceptable use of the justice system.
• Caps save Toyota $13 billion.  Instead of damage caps, it’s statutory penalty caps.  Now, I think $13 billion isn’t an appropriate fine at this point.  But NHTSA sure would have more leverage to get Toyota to play by the rules if it could offer to reduce the $13 billion in exchange for a safety plan.
• Defensive medicine, or profitable medicine?  Some in the “reform” movement argue that doctors order unnecessary tests and procedures to protect themselves from the grim specter of a malpractice lawsuit.  But maybe they’re actually ordering those tests and procedures to make a buck: “When doctors become invested in an outpatient surgery center, they perform on average twice as many surgeries as doctors with no such financial stake, according to a new study from the University of Michigan Health System.”
• 93% of mine safety fines go unpaid.  If you knew you’d only have to pay 7 out of every 100 speeding tickets you received, how seriously would you take the threat of a speeding ticket?  I think it’s odd that the same people who support a “three strikes” criminal law generally oppose a similar regime with safety violations.
• Don “coal mine explosion” Blankenship on mine safety: “The very idea that [politicians and regulators] care more about coal miner safety than we do is as silly as global warming.” I’m sure global warming deniers are stepping away from Blankenship now.
• Trial lawyers recover $20 million for Louisiana. The “reform” crowd will be up in arms over this because outside attorneys worked on the matter.  Apparently, taxpayers would be better off leaving complicated lawsuits to the overburdened staff of state attorney general offices.
• FreeCreditReport.Com Shenanigans. Now they’re going to sell you a “free” credit report for a buck in order to avoid FTC scrutiny.  I have a novel solution to the problem: Congress should require credit reporting agencies to deliver copies of credit reports to consumers for free, on demand, as often as consumers want.
• Medical malpractice arbitration award contains $2.6 million in punitive damages. Punitive damages in arbitrations are pretty rare.  The case sounds interesting. 
• Exxon sues US to pay for cleanup.  This is the environmental law equivalent of “dog bites man.”     
• Defective sperm not covered under product liability law. Interesting discussion of “wrongful life” lawsuits.
• Should the public be allowed to access the National Practitioner Data Bank? A few years ago, I would have said yes.  Now, I’m not so sure.  I suspect that if the public could access the database, healthcare providers would stop using it.  Yes, I know they have to use it, but lots of regulated entities don’t do things they “have to.”
• Pfizer paid $35 million in 6 months to “independent” doctors that promoted Pfizer’s products. What bothers me is that one of the criterion as to whether expert testimony is admissible is whether the science was created purely for litigation.  Science that was created purely for marketing should be subject to the same scrutiny.
• Toyota mini-roundup: Consumer Reports says Lexus GX-460 is unsafe, warns consumers not to buy it.  That’s gotta hurt.  Sudden Acceleration: The Story Unfolds. A good background on the crisis.  Republicans claim NHTSA is denying them access to documents.  Hey, GOP: I’m available if you’d like some legal help challenging the “trade secret” designation.