War of Attrition (Continued from page 48)
would continue to hold a sympathetic view of victims and so the main target of the “reformers” attacks became the trial lawyers. The “reformers” exploited an age-old
portrayal of lawyers as greedy and shrewd shylocks. This grotesque characteriza- tion of the members of an honorable profession is reminiscent of the dastardly work of infamous propagandists from nefarious regimes who used the same technique prior to initiating attacks on their enemies. To Americans, whose view of medicine was greatly influenced by such fatherly and beneficent images such as Marcus Welby, MD, and most of whom had little, if any, exposure to the justice system as victims of medical negligence, the demonization strategy found fertile ground in the American psyche and the tort “reform” movement gained momentum. By creating greater distances between victims and their only advocates-plaintiff attorneys- the tort reformers intended to reduce negligence lawsuits by limiting victims’ access to the court house. Understanding that most victims do
not have the financial resources needed to pay for expensive and protracted litigation, and therefore the contingency system being the only vehicle by which they can hope to gain access to the court house, the reformers launched a campaign aimed at reducing victims’ compensation through legislation. By imposing arbitrary caps on non- economic damages, the tort reformers hoped to reduce the volume of negli- gence cases by forcing attorneys to limit their cases to the most egregious and the most profitable ones. In other words; through attrition, reduce malpractice lawsuits by effectively denying entree to the courts for the moderately and minimally injured, the poor and the elderly, and others whose cases would not generate large settlements or judg- ments. Knowing that even clearly negligent doctors, healthcare workers or institu-
50
tions can easily draw from vast reservoirs of potential experts, while victims’ advocates face the daunting task of find- ing experts who are willing to criticize their associates and potentially incur being ostracized or worse, the reformers moved to further limit victims’ access to justice by steadily and incrementally in-
Despite the multiplicity of “reforms”
that have been enacted in many states and strong evidence that these have had no appreciable effect on either malprac- tice insurance rates or access to medical care, the tort reform movement is now engaged in attempting to deny victims any and all access to the jury system
A euphemism for undermining the constitutional right to a jury trial, so called health courts would force victims, who live in anguish and grief and who crave for justice, into a forum designed and influenced by people from the very industry that has made them victims.
creasing the burden on victims through more and more unreasonable restric- tions on expert witnesses that effectively only applied to plaintiff attorneys. The intended effect of these restrictions was to even further limit victims’ access to the courts. While the eight years of the Clinton
administration provided some relief from the attacks of the tort reform- ers, the election of George (Bush) the 2nd
renewed, with vigor, the campaign
against victims of medical negligence and plaintiff attorneys. Using a bevy of tactics, such as man-
datory arbitration, “apology” laws, more extensive filing regulations, venue restrictions, limiting attorney fees, a stepped-up campaign of propaganda about frivolous lawsuits, runaway jury awards, mandatory structured settle- ments, the costs of defensive medicine and the Machiavellian ruse that doctors were leaving the profession, etc., the reformers launched a multi-faceted “strategic bombing” intended to even further isolate victims, denying yet more and more victims’ access to justice and to poison the jury pool. Ironically, by sewing a culture of fear, the tort reform movement itself has done more to promote “defensive medicine” than any- thing victims or their advocates could have done.
Trial Reporter
through the establishment of health courts. A euphemism for undermining the constitutional right to a jury trial, so called health courts would force victims, who live in anguish and grief and who crave for justice, into a forum designed and influenced by people from the very industry that has made them victims. Another shrewd device being pro-
moted by those who are liable for causing injury and death is the so called “3Rs” program. Recently initiated by the Colorado-based Copic Insurance Company, the “3Rs” stand for “Recog- nize, Respond and Resolve.” Similar to the “Sorry Works” campaign, the “3Rs” program is designed to disarm victims by offering them recognition that they are indeed victims and free medical care for their sustained injuries in exchange for waving their right to seek judicial remedy. The strategy is that victims will opt for the sure thing rather than risk losing all by going to court. The problem, of course, with the “3Rs”
approach is that there is no guarantee that victims will get competent, com- prehensive and sustained care for their injuries and that they and their families will receiveno compensation whatsoever for the pain, suffering, loss of work, etc., that they sustained through the fault of others. In a military setting, this is comparable to telling an enemy that it
Fall 2007
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