Cerebral Palsy Child

How the “Tort Reform” Movement is Responding to a Major Defeat in the Supreme Court.

By Wayne M. Willoughby, Immediate Past President, Maryland Association for Justice

Recently the consuming public won a major victory in the courts. In a 6-3 decision, the United States Supreme Court held in Wyeth v. Levine, 129 S.Ct. 1187, 173 L.Ed. 2nd 51 (2009), that federal law did not preempt a state law claim brought by a musician who lost her arm to gangrene as a result of a defectively labeled nausea medication. The action alleged that the manufacturer’s label was defective because it did not warn health care providers of the substantial risk of loss of limb if the drug is administered by IV push. The Court specifically rejected the pharmaceutical company’s defense that because Congress empowered the Food and Drug Administration to approve drug labels, that federal action preempted state products liability laws. This major decision assures that irresponsible companies cannot misuse the laws designed to promote food and drug safety to avoid liability for producing and selling unsafe products.

Not to be undone in the public’s eye by such an important loss, the forces behind the decades old movement to protect businesses from being held accountable for corporate misconduct fired back. The United States Chamber of Commerce (acting through its benignly named “Institute for Legal Reform”) has begun to push a “Faces of Lawsuit Abuse” campaign at local movie theaters with two-to-three-minute advertising trailers before movies.

One such trailer in the Chamber’s campaign tells a story about a Rockville swimming pool business sued when a Canadian goose nesting near the store attacked a customer causing her to fall and break her hip. In order to subject the legal system to ridicule, the Chamber distorts the facts of the case and omits one tiny little truth: the defense attorney who represented the company stated that the action was NOT a frivolous case.1 The Chamber is not alone in warping reality in order to produce a compelling anti-consumer/ anti-justice message.

Last month a group with the innocent sounding name, Maryland Citizens Against Lawsuit Abuse (MdCALA), joined with the National Federation of Independent Business (NFIB), to issue a joint survey claiming widespread fear of lawsuits by small business owners. Aside from the fact the study was unscientific and was comprised of only 129 on-line responses, MdCALA failed to mention that the results of its paltry survey pool were in marked contrast to a much larger survey (3,530 small businesses surveyed) conducted by the NFIB only ten months earlier. This earlier study concluded that so-called “lawsuit abuse” is not a major concern for small business owners. In fact out of 75 possible priorities and concerns, small businesses ranked the “costs and frequency of lawsuits/threatened suits” at 65th on the list.2

To the well informed it comes as no surprise when a group name containing the words Citizens Against Lawsuit Abuse (CALA) in its name unfairly attacks the legal system.3

The CALA movement began in the early 1990’s when the American Tort Reform Association and a Washington, D.C. law firm that represents Big Tobacco retained APCO & Associates, one of the nation’s leading “grassroots” lobbying/public relations firms, to build a network of local organizations to act as the mouthpieces for anti-consumer tort law changes.4

Masquerading as “grassroots” organizations, but bankrolled by big tobacco, big pharma and insurance companies, when CALA issues an alleged study or survey, the public should expect nothing less than another attack on the laws which protect consumers from the excesses of corporate greed. For more information on CALA and the tort reform movement in general, read, “The Attack on Trial Lawyers and Tort Law”, a report by the Commonweal Institute.5

At some point, however, the public will come to see CALA groups for what they are: Astroturf movements by powerful business and political interests that want to overpower the people’s right to justice in our courts in order to protect corporate profits no matter how those profits were obtained.

The Empire may strike back, but ultimately the truth will prevail. Until then, the Maryland Association for Justice will continue to fight for the people’s right of access to the courts, right to trial by jury, right to due process and right to equal protection under the law.

1. Tamber, Caryn. “Take a Gander at This Movie Trailer.” The Daily Record 22 Apr. 2009 Web. 12 May 2009. <http://www.mddailyrecord.com/article.cfm?id=11409&type=UTTM>.

2. “Small Business Problems and Priorities.” NBIF Research Foundation June, 2008 Web. 12 May 2009. <http://www.nfib.com/Portals/0/ProblemsAndPriorities08.pdf>.

3. Mencimer, S.. “Blocking the Courthouse Door; How the Republican Party and Its Corporate Allies Are Taking Away Your Right to Sue.” Free Press 2006 Web.13 May 2009.

4. “The CALA Files: The Secret Campaign By Big Tobacco And Other Major Industries To Take Away Your Rights.” Center for Justice and Democracy and Public Citizen Web. 12 May 2009. <http://www.centerjd.org/archives/issues-facts/stories/cala.php>.

5. Johnson, David C.. “Th e Attack on Trial Lawyers and Tort Law.” Commonweal
Institute 01 Oct 2003 Web. 12 May 2009. <http://www.commonwealinstitute.org/cw/files/AttackTrialLawyersTortLaw.pdf>.

A couple weeks ago, Wayne M. Willoughby of Gershon, Willoughby, Getz & Smith, LLC, spoke to a class of graduate level students at the John Hopkins University School of Medicine about medical malpractice from the perspective of a malpractice lawyer who represents children with Cerebral Palsy.  The class consisted of medical students, journalists, freelance researchers and writers, and others interested in medicine. He shared the floor that evening with an OB/GYN leader the “tort reform” movement in Maryland, who was there to offer his perspective on the topic.

Given the factually erroneous and often outlandish claims made over the past several years by those seeking to limit the rights of brain damaged babies, it was surprising that the end of the doctor’s presentation with how much the doctor and lawyer were in agreement. 

The doctor candidly told the class that damage caps on pain and suffering are irrelevant to lowering malpractice premiums – a point patients’ rights advocates have been making for years.  Likewise, the doctor acknowledged that frivolous lawsuits are not the cause of high malpractice premiums, a concession previously made by Medical Mutual’s CEO to a Maryland Senate committee in October 2004 (as reported at the time in the Baltimore Sun).

The students also heard the doctor explain that the real problem for physicians in not the high cost of medical malpractice insurance. The real problem is that doctors in Maryland are nearly the lowest reimbursed physicians in the United States. Again, this is a point patients’ rights advocates have been making for years.

Fifteen years ago, the doctor received $3,000 in insurance reimbursement for an ordinary vaginal delivery of a baby, $4,800 for a surgical delivery. Today, for the same services insurance companies reimburse obstetricians in Maryland less than half those amounts. Because of the dramatic cut in his income for delivering babies, the doctor said he was unable to keep up with the costs of malpractice insurance. Thus, he stopped delivering babies.

The doctor acknowledged that if insurance reimbursements for delivering babies remained the same as a decade ago, there would have been no fight over the cost of malpractice insurance; he and others simply would have paid their premiums like any other cost of doing business and continued to delivery babies. 

So, given the recognition by this physican-leader of the “tort reform” movement that frivolous malpractice lawsuits are not a problem driving up the cost of malpractice insurance, and that damage caps do not lower insurance premiums, perhaps this year physicians will cease their annual efforts to limit the rights of babies with CP.  It is time for physicians to focus their energy on an issue that doctors and lawyers can agree on – the need to hold health insurance companies responsible to deal fairly with physicians and patients.  

Recently I read the story of the reigning Miss Iowa USA, Abbey Curran.  This beauty queen reportedly decided to enter her first pageant because a teacher told her she couldn’t do it — it isn’t realistic.  Why?  Abbey Curran was born with cerebral palsy (CP).  She wore leg braces as a child and now walks with a limp that occasionally required that she stabilize herself by holding onto an escort at pagents.

Moreover, a few years ago she founded the Miss You Can Do It pageant for people with special needs and hopes that her new platform will lead to greater participation.

This young woman’s courage and determination is inspiring.  There is no doubt in my mind that she will meet her career goal of becoming a commercial airline pilot

A new Australian study says long-term, heavy cannabis use causes brain damage that is equivalent to mild-traumatic brain injury or premature ageing.

The research is published today in the journal Archives of General Psychiatry.

The study also found that all users are at risk, and the more you smoke, the more your brain shrinks.

Doctors have known for years there is nothing “soft” about the drug cannabis. Professor Jon Currie is the director of addiction medicine at St Vincent’s Hospital in Melbourne. Read more…