Pennsylvania Injury Law Report : Pennsylvania Personal Injury Lawyer & Attorney : Stuart Carpey Law Firm : Auto Accidents & Product Liability : Pennsylvania Injury Law Report

As the health care reform debate intensifies, it is apparent that malpractice reform is not a key part of the President's agenda. Though it certainly is not excluded from the debate. Will medical malpractice protection for health care providers be back doored into a final bill on health care? Are the two issues necessarily linked? What would happen to malpractice insurance premiums if malpractice standards were federalized? (I suggest malpractice insurance carriers would not be pleased because their ability to vary rates based upon specialty and region would be controlled. But that discussion has to be left to a subsequent post).

President Obama has repeatedly made the statement that "no government bureaucrat will come between you and your doctor." He stresses in TV talk shows,  town hall meetings  and in his June 2009 speech to the American Medical Association that "if you like your doctor, you keep your doctor, if you like your insurance company, you keep your insurance company."

Is the president suggesting connecting malpractice reforms to doctors and hospitals  who would follow government guidelines?  This is what he said in the speech:
Now, I recognize that it will be hard to make some of these changes if doctors feel like they're constantly looking over their shoulders for fear of lawsuits. I recognize that. (Applause.) Don't get too excited yet. Now, I understand some doctors may feel the need to order more tests and treatments to avoid being legally vulnerable. That's a real issue. (Applause.) Now, just hold on to your horses here, guys. (Laughter.) I want to be honest with you. I'm not advocating caps on malpractice awards -- (boos from some in audience) -- (laughter) -- which I personally believe can be unfair to people who've been wrongfully harmed. But I do think we need to explore a range of ideas about how to put patient safety first; how to let doctors focus on practicing medicine; how to encourage broader use of evidence-based guidelines.

Is he suggesting 1) complete preemption of malpractice lawsuits and 2) complete insulation from malpractice liability for a doctor that provides care which meets a government checklist?

It does not appear, yet, that is direction of the debate. One glaring reason? The doctors and hospitals that  provide care which does not adhere to the checklist, even for good reason, may expose themselves to liability. Maybe the checklist becomes outdated and an advancement in clinical diagnosis calls for test on a patient that isn't on the checklist. Is a doctor liable for a bad result by going beyond the checklist even if the checklist is not in the best interest of the patient?

"Evidence based guidelines" mandated by bureaucrats in Washington could end up being a double edged sword for doctors.

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Tort reform is a buzzword for limiting the average guy's rights to the court room by big business and their supporters.  When one time Supreme Court nominee Robert Bork settled a case against Yale University last year for injuries he sustained when he fell at the alumni club, he reached the height of hypocrisy.

Bork sought $1 million in damages, claiming the Yale Club was negligent in not providing a handrail or stairs to the stage on which he was set to deliver a speech in early June 2007.  He was 79 years old at the time. His lawsuit stated  the fall caused a large hematoma to form on his leg, inflicting "excruciating pain" and requiring surgery and months of medical treatment.

He is considered one of the leaders of the tort reform movement. This is a man who spent a large part of his professional life going out of his way to limit the ability of people to seek compensation for personal injuries. I guess his own rules don't apply to him, and that's the irony. He should have and did have the right to be compensated for what sounds like pretty serious injuries. Everyone should, for legitimate claims. Taking those rights away  from people is just dead wrong. I wonder if Bork realizes that now, late in his life.

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Two articles caught my attention today in the Philadelphia Inquirer business section. The first had to do with the number of increased bankruptcy filings. The author talked about bankruptcies among the rich and famous, including that of former Phillie Lenny Dykstra who apparently owes between $10 and $50 million. I am no bankruptcy maven, and there may be very good reasons Mr. Dykstra is pursuing bankruptcy, perhaps to protect his other assets from creditors. Sure seems like he was irresponsible with the large sums he made as a player.

The second story I read today was about the trials and tribulations of large law firms who are having a tough time in the current recession because big firms, as the writer puts it, don’t have coherent business models.

That’s surprising to me. Having a business plan starts with putting on paper your purpose for being in business. For instance, mine is to have clients who are regularly informed of the status of their personal injury case and who are kept informed of the process throughout the litigation of the case. This creates a steady stream of satisfied customers who speak well of me and my firm, simply because they are informed. Of course, I am in business to make money. But, as far as I am concerned, that cannot be the primary purpose of my business. If my primary goal was simply to make money, my clients and their cases  would become a secondary concern. It’s a simple business plan that is regularly communicated to my staff.

Incidentally, I have found that doing right by my clients equates to better settlements and verdicts for my clients. My clients are well informed of the risks of both settlement, and trial. This process of constantly keeping my clients educated about their case leads to happier clients, who then refer more clients to me. No surprise there.

At a minimum large law firms need to end the excessive waste of time, and waste of their clients’ money. Hourly billing rates by defense firms with no end in site in the litigation of a case, the filing  of needless motions (something I see every day in the personal injury cases I litigate for my clients) is sure to raise the ire of a client, big or small.  It’s simply irresponsible money management.

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Maurice “Hank” Greenberg was the poster child for tort reformers. The insurance industry loved him. Hank is the  84 year old former chairman of AIG. (AIG has changed it's tarnished name  since the taxpayer bailout). Hank never liked the fact that the average guy injured through no fault of his own had the right to sue to seek fair compensation. Here's a portion of a "tongue and cheek" description of Hank Greenberg from the July 2006 issue of Trial magazine.

It took Hank nearly thirty years to build a multibillion-dollar fortune.  Throughout those years, Hank was constantly being victimized.  He was victimized by a civil justice system that forced his company to pay for the medical bills of individuals injured by his insured.  As if that wasn’t enough, he was most recently victimized by Eliot Spitzer, the New York Attorney General who has alleged that Hank made his billions through illegal business practices.  Thanks to Mr. Spitzer, Hank was kicked out of the company he built, and he was even forced to transfer over $1 billion in assets into his wife’s name.

Hank loved to beat up on trial lawyers. In February 2004 he compared the debate over reforming class action litigation to the White House's 'war on terror'…. It's almost like fighting the war on terrorists," Greenberg told Boston College's Chief Executives' Club. "I call the plaintiff's bar terrorists." So let's get this straight. Right after 9/11, he's referring to a group, whose positions he opposes, as terrorists!

Yesterday Greenberg agreed pay $15 million to settle fraud charges filed by the Securities and Exchange Commission. The charges stem from an accounting scandal that led to Greenberg's resignation as the head of AIG in 2005. The next year, AIG paid $1.6 billion to settle charges that it manipulated its financial statements.

Greenberg's legal troubles are not over.  He faces civil fraud charges by the New York Attorney General and remains under criminal investigation in one manner  relating to AIG's accounting issues.  Federal prosecutors, who brought a criminal case against one AIG executive who was convicted last year of inflating AIG's reserves by $500 million in 2000 and 2001 through fraudulent reinsurance deals, have identified Mr. Greenberg as an unidentified co-conspirator; basically they believe he took part in the fraud scheme but didn't have enough evidence to convict him, the Wall Street Journal reported today.

By the way, how much money did the bailout of Hank Greenberg's AIG cost the United States taxpayers?  At last count  $182 billion. Hank fleeced AIG's shareholders to make his billions, exposed AIG to massive liabilities, and now the taxpayer is left picking up the former tort reformers' poster child's mess. What happened here?

The true face of tort reformers has been exposed for what it really is.

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