Responding To The Assault
On The People’s Civil Justice System by Roger Braden
Roger N. Braden is from Taylor Mill, Kentucky. He is an Adjunct Professor of Law at the Salmon P. Chase College of Law and President of the Chase Alumni Association. He earned a Nursing Degree in 1977, a B.A. degree from Northern Kentucky University in 1971 and a law degree in 1984 from the Salmon P. Chase College of Law. Mr. Braden is in private practice and is currently a member of the Lawrence Firm of Cincinnati, Ohio.
The Assault For quite some time, I have sat back
and observed as several articles have been printed criticizing lawyers who represent injured citizens and the civil justice sys- tem. Very seldom do these articles provide statistics from objective sources, and fre- quently they rely upon sound bites and special interest data resulting in gross mis- representations to the general public. Words such as “explosive litigation,”
“frivolous,” “deep pockets,” “victimization” and other non-revealing garbage language pepper the articles throughout, screaming the message that lawyers are simply money- grubbing leaches, and the civil justice system is out of control. As a trial lawyer, I cannot help but believe that the assault on the civil justice system is just a calculated effort on the part of some special interest groups to mislead the public. They aim to protect their own interests, while placing the average citizen at risk for injury.
Lawyers Sometimes Deserve Criticism
In responding to the articles referred to, I hope to avoid becoming what I am criti- cizing and thus intend to rely upon articles and statistics published by those other than lawyers like myself. I premise my response by saying that oftentimes lawyers should be criticized. Oftentimes we become ar- gumentative, instead of exhibiting statesmanship. Other times we are not as prepared as we should be in the handling of a matter, and sometimes we put self- interest above good judgment. There is no doubt in my mind, however, that these are exceptions, rather than the rule. Perhaps the biggest area for which law- yers can justifiably be criticized is for not providing information to the public to re- fute derogatory articles that damn the very civil justice system that protects the pub- lic (including business owners and average citizens). Lawyers like myself, involved in representing and protecting the rights of innocent victims, should be criticized for not responding to those derogatory articles. Instead, we have relied upon consumer groups to get the truth out to the public.
10 Medical Facts
Let’s talk about facts. Insurance com- panies, hospitals and medical associations often propagandize myths about outland- ish verdicts and “frivolous medical malpractice suits.” Yet, the fact is that stud- ies in New York and California have concluded that hospitals are sued for two to ten percent of medical errors that actu- ally occur. That means that 90 to 98 percent of medical errors do not result in lawsuits. The Harvard Medical Malprac- tice Study, published in 1991 and the most comprehensive and rigorous examination of hospital errors ever, concludes that one of every 200 of the patients admitted to a hospital in New York ended up dead be- cause of a hospital mistake. Other studies have shown that only five-to-ten percent of all medical errors are reported to hospi- tal administrators; the remaining 90 to 95 percent go unreported. Dr. Lucian Leape, a Harvard Professor who was involved in conducting the most comprehensive study of medical errors in the United States, has estimated that one million patients nationwide are injured by errors during hospital treatment each year and 120,000 die as a result. Or, as stated in the Lexington Herald-Leader on Sep- tember 19, 1999, “That number of deaths is the equivalent of what would occur if a jumbo jet crashed each day; it is three times the 43,000 people killed each year in U.S. automobile accidents.” Yet, the propa- ganda pushers want the public to believe that the problem is the civil justice system, but the facts don’t support their argument.
The Real Insurance Crisis The insurance industry is especially good at propagandizing about the need to place “caps” on what injured victims should be able to recover, etc. According to insur- ance industry propaganda, the cost of litigation is so high, and the threat to the public is so great, that insurance premi- ums will sky rocket or else insurance companies will go out of business. Yet the fact is, that in 1986 alone— the year of the American Tort Reform Association’s founding— 41 states passed legislation to
Trial Reporter
limit the liability of wrongdoers, restrict the amount of monetary damages injured consumers could receive in court, and made it more difficult for the injured to obtain attorneys to represent them against insurance companies. But eventually the truth surfaced. Study after study revealed that the “liability in- surance crisis” of the mid-1980s was not the legal system at all. These studies exam- ined the property/casualty insurance industry and found that the “insurance cri- sis” was actually a self-inflicted phenomenon caused by the mismanaged underwriting practices of the insurance industry␣ itself. As Business Week magazine explained in
a January 1987 editorial: Even while the industry was blaming troubles on the tort system, many experts pointed out that its problems were largely self-made. In previ- ous years the industry had slashed prices competitively to the point that it incurred enormous losses. That, rather than exces- sive jury awards, explained most of the industry’s financial difficulties.
Big Business Health
Today, automobile manufacturers, to- bacco companies and insurance companies saturate the Fortune 500 list. According to the 1999 Fortune 500 list, General Mo- tors is the number one company with revenues in excess of $161 billion dollars. Ford is the number two company with rev- enues in excess of $144 billion dollars. Exxon is number four with revenues in excess of $100 billion dollars. Phillip Mor- ris, the tobacco giant, is the number eight company with revenues of nearly $58 bil- lion dollars. Let’s not forget the insurance industry,
with State Farm Insurance Companies ranked the 14th largest Fortune 500 com- pany with revenues in excess of $44 billion. Prudential Insurance Company is ranked 20th with revenues in excess of $34 bil- lion dollars, Metropolitan Life Insurance Companies is ranked 39th with revenues in excess of $26.5 billion dollars and Allstate is number 42 with revenues of
(Continued on page 12) Winter 2000
Page 1 |
Page 2 |
Page 3 |
Page 4 |
Page 5 |
Page 6 |
Page 7 |
Page 8 |
Page 9 |
Page 10 |
Page 11 |
Page 12 |
Page 13 |
Page 14 |
Page 15 |
Page 16 |
Page 17 |
Page 18 |
Page 19 |
Page 20 |
Page 21 |
Page 22 |
Page 23 |
Page 24 |
Page 25 |
Page 26 |
Page 27 |
Page 28 |
Page 29 |
Page 30 |
Page 31 |
Page 32 |
Page 33 |
Page 34 |
Page 35 |
Page 36 |
Page 37 |
Page 38 |
Page 39 |
Page 40 |
Page 41 |
Page 42 |
Page 43 |
Page 44 |
Page 45 |
Page 46 |
Page 47 |
Page 48