Then as now, insurance, business, medical and manufacturing interests clamored for limitations on lawsuits and damages. Certain elements in government and a lazy press picked up on these claims, fueling the controversy by publishing highly selective and misleading accounts of large verdicts that seemed to lend truth to the criticisms.

Times have hardly changed.

If tort reformers would just admit that their current agenda is an effort to assist the insurance industry in managing its own risks, it just might be less offensive. But that candor could cause a further negative impact on the industry’s reputation, if that’s possible. The general public would tend to look with even more suspicion on an industry that purports to manage everyone else’s risk when it can’t even manage its own.

Now, as then, the industry with the problem isn’t the medical community, nor is it the law. Again, it’s the insurance industry, and again the problem has been self-inflicted. It’s certainly apparent, though, that the doctors are salivating over the fact that limiting verdicts and other tort reforms may greatly diminish their chances of being sued. Of course, it certainly won’t help those they’ve grievously harmed.

“Lawmakers could do more to reduce premiums by improving the structure of the insurance marketplace, said Frank A. Sloan, an economics professor at Duke University who specializes in health policy and management. Medical malpractice “…is the most cyclical health policy there is,” Professor Sloan said, adding, “There are periods of time when premiums stop going up, and then nobody’s interested, then again we get a crisis and everybody says juries are terrible.” Richard A. Oppel Jr., New York Times, 1/17/03

This is the fourth “crisis” in thirty years. Again, there are the frenetic calls for tort reform. When will proponents and their legislative allies grow tired of this charade? Anytime soon is doubtful.

So if tort reform passes, who benefits? Certainly not the doctors. They may be lucky to see a temporary fluctuation in their rates. Now, as then, the insurance industry will clearly be the biggest beneficiary.

This nationwide campaign was carefully orchestrated with the doctors out front. I suspect that the insurance industry mesmerized the doctors with the promise of immunity. Why else would these caregivers use scare tactics against the public? They succeeded in passing tort reform in several states, but as we have seen the doctors did not benefit.

“When will there be justice in Athens?”

He responded

“There will be justice in Athens when those who are not injured are as outraged as those who are.”

Lately, in legislative matters regarding tort reform, we often hear from trial lawyers that despite the arguments proffered by the other side, “we will prevail because we’re right.”

In the current political and media climate, regardless of the preponderance of the evidence and the strength of your argument, it takes more than being “right” to prevail. It takes a clear understanding of who and what you’re up against. So far, revelations in this area have been few and far between and, unfortunately, usually ignored.

Chief Justice William H. Rehnquist wrote not long ago that “…the life of the law is not political philosophy but experience.” California v. U.S., 438 U.S. 645, 648, (1978) (Rehnquist, J.) To the contrary, in our era, the life of the law is evolving according to political philosophy. Or, more accurately, raw political power disguised as political philosophy.

Propounding this philosophy is a network of over 500 seemingly independent organizations and think tanks. They have proliferated over the last three decades, founded, supported and controlled primarily by five foundations. They were named in a 1999 National Committee for Responsible Philanthropy study entitled “$1 Billion for Ideas.”

They are the Scaife Family Foundation, Olin Foundation, Coors Foundation, Bradley Foundation and the Koch Family Foundation.

The Commonweal Institute (Menlo Park, CA) is a nonprofit, nonpartisan think tank and communications organization committed to advancing a moderate to progressive agenda. Several years ago, The Institute released a comprehensive white paper entitled, “The Attack on Trial Lawyers and Tort Law.” This is a critical wake-up call to anyone who is at all interested in what lies behind the political agenda and the attack on trial lawyers, their clients and the civil justice system.

The carefully referenced report describes the huge movement behind the tort reform effort in illuminating detail. It exposes tort reform advocates’ broad political agenda. It outlines their anti-government ideology that advocates privatization, Social Darwinian competition and unregulated markets as the solutions to all social problems. Their manipulating and false messages push public attitudes closer to their ideology. They are incrementally creating a political climate favorable to politicians and public officials who advocate tort reform.

In this milieu, there will be no “justice in Athens” unless trial lawyers enter the debate and mitigate this growing threat.

As in many other states, doctors here have staged protests and marched with placards decrying the civil justice system and vilifying trial lawyers. In years past, they have held “Doctor’s Day” at the Legislative Office Building and argued with a family member who had lost a son to malpractice and making threatening comments to legislators.

The doctors have blindly swallowed all of the misinformation their insurance companies, the AMA, and the American Tort Reform Association (ATRA) has fed them. They actually believe that caps on damages reduce insurance rates (they don’t), and that the reason rates are so high is either that there are more and more large medical malpractice verdicts (there aren’t), or that there are so many frivolous cases that it just costs too much to defend them (again, not true).

Here’s an example of the depth of information being fed to doctors and the public.

Several years ago, the ATRA and sickofLawsuits.org commissioned the Center for Survey Research and Analysis at the University of Connecticut to conduct an “impartial” series of list-based “scientific” telephone surveys with physicians concerning medical litigation issues and its impact on healthcare. The interviews were conducted in Louisiana, Mississippi, Texas and West Virginia. The survey was conducted from December 2, 2003 to January 2004.

The doctors, if this is any surprise, were selected from a list provided by the AMA. Keep in mind that this so-called “scientific” telephone survey only questioned doctors and did not include empirical research into governmental, industry or privately held reports or data. Apparently, the Center doesn’t particularly care who commissions a survey or how, ultimately, the findings are used or the damage done.

The findings of the survey, as reported in a headline to an unsuspecting public in the Minneapolis-St. Paul Star Tribune on April 1st, tells the story:

“Frivolous Lawsuits Undermine Healthcare System and Hurt Patients. According to New Survey by the American Tort Reform Association Lawsuits Increase the Cost of Healthcare, Force Changes in the Practice of Medicine.”

Talk about “sock puppet!” The Star Tribune printed ATRA’s news release unedited and reported it as news.

You can make this stuff up–and they do.

There certainly is a need for the VA to be on guard against any fraudulent claims, but this should not be a hindrance for those veterans legally entitled to the help they seek. It’s small payment for their sacrifice.

Related posts: Lawyers donating time to help veterans

President Theodore Roosevelt, 1910

Corporate America long ago recognized that the civil justice system, with its citizen jury, challenges corporate power. So it is certainly understandable, though hardly justifiable, that powerful interests have successfully orchestrated a movement to denigrate the very system designed to offer the American people the necessary checks and balances on corporate abuse.

To accomplish their goals they have amassed vast financial and ideological assets (think tanks) funded by $200 million in grants every year. Year after year. Groups such as the Heritage Foundation, American Enterprise Institute, Hudson Institute, Manhattan Institute, Cato Institute, and Citizens for a Sound Economy are a few of the most visible. These and nearly 500 more draw on $2.3 billion dollars in assets from approximately 10 major conservative foundations such as Olin, Koch and Scaife. The grants often take the form of large general operating grants that have all but allowed these groups to maintain and expand their infrastructure and public and legislative reach.

How have they succeeded? Well, they are students of history. They know better than we that juries were purposely designed to thwart the exercise of limitless power, be it executive, legislative, judicial or corporate. Most Americans would be shocked to learn that in Congress and many state legislatures, corporate funded think tanks and their flaks – not elected legislators have actually written many of the state and federal laws under which we live and work.

Today, nearly a century after Teddy Roosevelt’s warning there is an eerie sense of urgency in the air. The American political system is awash in a tidal wave of corporate and foundation money all earmarked to manipulate the machinery of government.

America’s corporate titans were not pleased with Roosevelt’s comments. Steel magnate Henry Frick complaining of Roosevelt said “ . . . we bought the son of a bitch and he didn’t stay bought.” Today, Teddy Roosevelt is doing 360’s in his grave and probably wondering who will step forward to regain that “effective control” of abusive and manipulating corporations.

Trial lawyers hold the key to regaining some of that “effective control.”

There’s an old adage in the marketing business, “First you tell them. Then you tell them what you told them. Then you tell them again.” The civil justice system and trial lawyers are the great levelers. Let’s not forget to tell whoever will listen what trial lawyers stand for.

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