What starts out as a blah-blah Wall Street Journal editorial supporting Illinois’ damages caps on medical error cases, turns ugly.

Look at what’s underneath, as the editors at the Journal are fairly frank about their goals:

“We’d prefer a ‘loser pays’ rule as in the British system. But without such a deterrent to frivolous suits, limiting damage awards is the only way to stop jackpot judgments that drive doctors away and hurt the quality of medical care.”

It’s a nasty bit of rhetoric for several reasons. First, there’s the urban myth of doctors driven away. There are no names, and there is no data. It’s just the bald “fact” that this happens. But the more unfortunate and intellectually dishonest piece is the “jackpot justice” rhetoric. The Journal editors know that they’re being disingenuous as a number of high-profile studies confirm that the system works fairly well, with one important flaw. Here’s a widely-publicized study from the New England Journal of Medicine on the topic of medical errors and litigation. Here’s another slightly-dated summary from AARP.

Here’s the bottom line from the New England Journal article: “Claims that lack evidence of error are not uncommon, but most are denied compensation. The vast majority of expenditures go toward litigation over errors and payment of them. The overhead costs of malpractice litigation are exorbitant.”

That overhead cost thing at the end is also important. What the Wall Street Journal wants to do is make litigation more expensive by importing from England the loser pays rule. What that means is that lawyers on both sides get paid by the loser.

Under the current system, most patients’ cases are handled on a contingent fee basis. That means that the lawyers get paid if and only if we make a recovery for the injured patient. That system does several things. First, it keeps open the courthouse to meritorious claims, regardless of the wealth of the patient. The patient that wins pays his or her lawyer based on a percentage of the recovery.

Under the contingent fee system, lawyers who represent patients simply can’t afford to take losing cases because when they lose, they don’t get paid.  As well, middle-income patients are able to locate and hire top-flight legal talent because they don’t have to pay by the hour for the lawyer’s work.

But the second thing is that I imagine that loser pays will drive up the costs to both sides. While I don’t have any data, the costs are apt to increase because both sides have an incentive to do more work and stick the loser with the bill.

Underneath, the Wall Street Journal wants us to believe that juries can’t be trusted, and our founders were wrong to set up a jury system. The Wall Street Journal apparently believes that legislatures that pass one-size-fits all rules are better suited than juries to determine case outcomes. [Snark alert:] I’m sure this has nothing to do with the fact that lobbyists roam through the various hearing rooms and halls of various legislatures but are barred from jury rooms.

In the end the editors of the Wall Street Journal sipmly ignore the reality of injured patients. I have to assume that they simply close their eyes because no one should be so jaundiced in the face of profound injury.

David Sugerman

Tough times lead consumers to cutting out the luxuries. Tougher times mean that we all start looking at cutting necessities in order to get by. I imagine that some consumers will look at lowering insurance costs by going bare or reducing auto coverage. Here are some things that Oregon consumers need to know about cutting auto coverage.

1. It’s a Class B offense to drive uninsured: Pretty simple. The act of driving without insurance is a traffic offense. ORS 806.010.

2. If you’re in a traffic accident and you’re uninsured, you’re subject to drivers license suspension for a year.

3. In a heaping-it-on-the-poor move, the Oregon Legislature made it clear that if you’re uninsured and you’re in an auto accident, you can’t recover non-ecomic damages. That’s true regardless of whether you were at fault.  ORS 31.715

4. Excess coverage is usually much cheaper than the first level of insurance. So your insurance dollars actually go a long way when you are buying coverage over the minimum.

In tough times, it can be hard to make the best decisions. Driving uninsured is really unwise. One way to think about it is that insurance–like gas, car payments, and maintenance–are part of the true cost of driving.  So if you’re looking at cost cutting, unless you’re getting rid of the car, don’t cut the insurance.

David Sugerman

Here’s the US Department of Agriculture’s brochure on new rules requiring labeling of the country of orgiin of meats, fish and produce.  At the same time, the State of California is requiring larger restaurant chains to provide calorie and nutrition information to consumers. Both sets of rules provide important information to consumers, though each works on different parts of food issues.

I’m a fan of both, even if they will no doubt draw the ire of those who say that there are too many regulations.

As to country of origin rules, until China puts systems in place to provide safe products, I’m not feeding my kids food from there. Apart from that, country of origin labeling helps with a separate problem. It takes an awful lot of oil to grow and ship kiwis from New Zealand and grapes from Chile to North America. My preference is to buy food that doesn’t consume Middle Eastern oil or add more greenhouse gas to the atmosphere.  So country of origin labeling helps a little on that front.

And as for the food menu calorie rules, we’ve got the whole obesity problem. The theory is that calorie count information will help consumers make wise choices. I’m not sure whether it will work, as I can imagine that more information won’t lead  people to make better food choices at the food court. But even if the new rules don’t lead all consumers to think before they order, providing information gives motivated consumers the ability to make choices.  Put another way, once you know that the Outback’s Bloomin’ Onion appetizer has 2300 calories, you can make informed choices if you’re concerned about weight.

Both sets of rules seem like wise policy to me.

David Sugerman

It’s a bit hard to read about the details of Bill Coultas’ injuries from a helicpoter crash, but doing so gives good insight into why we need a fair and open justice system. Mr. Coultas suffered profound injuries in the helicopter crash. No wonder that survivors and relatives of those who died are pursuing claims arising out of the crash.

The talking heads who criticize the civil justice system mouth stock phrases like, “frivolous lawsuits” and “McDonald’s coffee.” If you’ve heard or uttered those words, you should take a look at Mr. Coultas’ story, as it explains in detail what we mean when we talk about profound injuries.

I don’t know anything about Mr. Coultas’ situation other than what is reported in the linked article. Still, it’s a good read for crticis of the civil justice system.

David Sugerman

This one sent a bit of a chill down my spine, as I have a number of friends, clients, and acquaintances who are insulin-dependent diabetics. Apparently, a labelling error by Covidien, Ltd. has led to a recall of over 400,000 disposable syringes. The error reportedly could result in insulin doses more than double the intended level. Affected products were apparently sold at Sam’s and Wal-Mart.

I don’t like to play fear-monger, but it seems like this is enough of a danger to insulin-dependent diabetics that getting the word out is a good thing.

David Sugerman

I grew up on Mad magazine, and one of my favorite features was “What they say…What they really mean.” And I’m reminded of that feature with this L.A. Times report on the Food and Drug Administration staff’s opposition to preemption.

Digression, first off, to credit reader JW on the pithy term “Kleptocracy” to describe the current regime’s fondness for allowing all its friends to gather at the trough. JDub says that he got it from wiki. Even so, his reverb is worthy of thanks and recognition.

And then some legal geek background on preemption. It’s a federal legal doctrine–based in the U.S. Constitution’s supremacy clause–that allows federal law to preempt or displace or block all state laws in a particular field. “State laws” is read broadly to include even a claim that might be based on state law. What it means for purposes of the kleptocracy is that a corporate wrongdoer who injures a citizen need not answer in court if the claim is preempted by federal law.

So one more little piece of foundation for this forehead smacker. Next week, the U.S. Supreme Court hears argument in the case of Wyeth v. Levine, Case No. 06-1249. In that case, the Bush Administration and FDA counsel are arguing that federal Food and Drug Act should preempt state law claims.  That’s to say, if you’re injured by a dangerous drug regulated by the FDA, our kleptocrats believe that you shouldn’t be able to sue.

The LA Times article demonstrates the inane basis of the argument. FDA staff knows full well that the agency does not and cannot protect consumers from drug company mistakes and misconduct. So it’s folly to assert that preemption should limit these claims. Back to Mad. They say: “Preemption is the best way to protect consumers because the FDA rigorously monitors drug safety.” What they really mean: “These consumer lawsuits from unsafe products are eating at our profits. We don’t like them.”

David Sugerman

With the help of my good friends Scott Shorr and Bob Udziela, I recently co-authored this amicus brief in the U.S. Supreme Court case of Philip Morris v. Williams.  We provided the brief on behalf of Retired Oregon Supreme Court Justices Leeson, Linde, Roberts and Unis.

The brief focuses on whether the Oregon Supreme Court correctly applied Oregon law in affirming a large punitive damage award against Philip Morris. It was a thrill working with Scott and Bob. More so because of the distinguished group of judges that we represented.

We did the brief pro bono, which means for “the good.” That’s to say, it’s a unpaid volunteer effort to help the Court understand some of the fine details of Oregon law. Snarky admission: I am way short on love for the tobacco industry.

While I’ll never see a dime for my work assisting to hold them accountable for their outrageous misconduct, I take pride in having been in the fight.

David Sugerman

I’m not a big fan of the U.S. Chamber of Commerce. For years, they’ve led a concerted effort to bar the courthouse doors for ordinary Americans.  And now we learn that the Chamber is at the center of the deregulation frenzy that led to the Wall Street financial collapse.  Among the many points of interest:

• U.S. Chamber received  some $23 million (through a foundation) paid by AIG to lobby for changes in regulatory oversight
• The same U.S. Chamber champions the $700 billion bailout (Query: How much is that really going to cost us?)
• The U.S. Chamber used “tort reform” as the wolf-in-sheep’s-clothing approach to strip away post-Enron reforms.

Look at this video where the Chamber begs and bullies for the bailout.  Against the backdrop of their responsibility, this is goofy.  Shameless.

David Sugerman

Reported here is the impending settlement of a claim by the estate of James Perez against the City of Portland. Back in 2004, Mr. Perez was shot to death by Portland police in a traffic stop. Details are sketchy, except that Elden Rosenthal represents the family. Elden is a rock star when it comes to tough civil rights cases.  I expect to hear more about this in the coming days.

In a situation like this, you can’t really congratulate the family. While money from the settlement apparently will be used to provide care to Mr. Perez’s ailing mother, there’s little joy in the resolution of these types of tragedies.

David Sugerman

The title is unfortunate, but this Oregonian piece gives a good feel for the critical importance of jury duty. I especially appreciate the extensive discussion of Judges Bearden, Walker, Wilson and LaBarre’s methods of promoting the importance of jury service.

I served on one jury in a criminal matter some years ago. It was an experience I will never forget.  I was impressed by the people who served with me. They understood that we serve in order to provide an open system of justice. There was grumbling, of course, as it’s neither fun nor easy. Still, it’s critical to the healthy functioning of our state.

The stories recounted in the linked article illustrate some of the true challenges of jury service. As well, you can find good first-hand accounts here and here from people who served in a high-profile case.

Jury service is not easy, convenient, or fun. Still, it is one of the most important roles any American can play to help maintain the integrity of our justice system.

David Sugerman