Medical Malpractice in the Health Care Debate: Sucking Us Back Into the "Tort Reform" Bog?

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The current debate over health insurance reform has led to renewed calls by conservatives for tort reform, which they point to as the best way to decrease the cost of medical malpractice cases. "Tort reform" refers to any changes in liability laws that place higher burdens on people injured by products or services, erect barriers to keep their grievances out of the court system and generally tilt the legal playing field in favor of big businesses. Ample information, like that put out by Public Citizen, SourceWatch and investigative reports from other news sources have demonstrated that the so-called "tort reform movement" is actually a massive, corporate-funded, fake "grassroots" campaign perpetrated by American industry to try and restrict citizens' access to the legal system for redress against harms caused by defective products and negligent practices.

Since there is so much more money being poured into promoting "tort reform" than into exposing its true origins and motives, many people remain oblivious to what is really behind it, and buy into the idea that we need it. This is the case even though we now have an unprecedented amount of documentation of the corporate greed and deception that is at the root of this "movement."

"Tort Reform" Has Its Roots in Tobacco

Cigarette manufacturers -- who make the single most harmful legal product on the planet -- were among the first to make an organized attempt to change the legal system to preempt liability suits. Their efforts to slant the legal playing field started in the 1970s, but were largely ineffective due to push-back by trial lawyers and a public sentiment that peoples' right to access the legal system should not be infringed. A 1985 Philip Morris (PM) strategy report summarized the difficulty that corporations -- especially tobacco companies -- faced in pressing for reform themselves:

There are some good reasons for the lack of progress [in achieving tort reform]. Industries which are currently involved in major litigation cannot lead the public effort for tort reform as it gives the image of special pleading and "bail-out." Industries which are not currently under attack are reluctant to be tarred with the same brush as those which are.

After years of trying to enact tort reform at the federal level, the tobacco companies failed to obtain the sweeping changes they sought. They moved to a more incremental approach, seeking lesser provisions -- like limiting contingency fees or non-economic damages like pain and suffering -- but those efforts by and large fell flat as well. They tried moving their efforts to the state level, where they thought their measures would receive less debate, but they fared poorly in manipulating the legal system at this level as well. By the end of the 1980s, the tobacco industry needed a new strategy.

Key Instigator of "Tort Reform": Philip Morris

The organized "tort reform movement" as we know it today started as an internal project of Philip Morris (PM) around 1992. PM designed its campaign to appeal to a wide range of industries. It was a brilliant and effective strategy. PM got buy-in for its efforts not only from other tobacco companies, but from a much broader range of businesses whose products and services, while unrelated to tobacco, were also known to cause harm, like chemical, pharmaceutical and insurance companies, automobile manufacturers, refineries and others. The participation of these other industries helped defray PM's cost of the project.

Methods and Tactics

PM aimed to convince the American populace that our country is "in the grips of a crippling liability crisis ..." that "this crisis affects you every day ...", that "suits clog our courts, reduce our choices, force us to pay a hidden tax on goods and services, undermine our competitiveness, and curb our willingness to innovate."

To carry out its "Tort Reform Project," the tobacco industry hired public relations firms to create the appearance of a massive grassroots "movement" favoring pro-industry changes in liability law. The PR firms formed coalitions in every state called "[Insert state name here] Citizens Against Lawsuit Abuse," (e.g., "Alabama Citizens Against Lawsuit Abuse), to make it look like masses of fed-up small businesses owners and aggrieved consumers were rising up and joining forces to push for tort reform. A 1995 R.J. Reynolds internal document outlines Big Tobacco's "Tort Reform Project" and admits that the industry needed to assemble "a coalition that is composed of enough 'average' citizens that the spokesperson can credibly stand up in support of protecting victims, small businesses, workers and consumers." Through these groups, the industry sought state-level legislation designed to weaken trial lawyers and, according to the above 1995 RJR document, worked to "make the trial bar radioactive." Tactics included a blitz of five to eight 30-second commercials utilizing "lawsuit-abuse poster children," and a "30-minute infomercial" that could "be used on cable channels in key markets" to "highlight the need for reform." They also created video news releases to "highlight the growing citizen movement for lawsuit reform and the recklessness of class action lawyers scouting for new plaintiffs in order to enrich themselves." They sent out "action kits," set up "pro-reform 800-numbers," and utilized virtually every avenue of communication available to drive the pro-industry viewpoint into the public consciousness: direct mail, billboards, print ads, posters, television and radio ads, polls and research studies, focus group testing, newsletters, bumper stickers. To reinforce their efforts, tobacco companies enlisted help from right-wing, libertarian and pro-business think tanks, like the Cato Institute, the Hudson Institute and the Manhattan Institute. PM's efforts reached far up the political food chain, even gaining assistance for its efforts from then-Vice President Dan Quayle.

All of this took money. Lots of it. Tobacco industry documents indicate that the tobacco industry alone pumped over $21.8 million into manufacturing a "tort reform movement" in 1995 alone, and that amount doesn't include soft-money political donations made to public figures who have recently re-emerged to fight the current efforts to reform health care, like Dick Armey and Newt Gingrich. The tobacco companies worked to bury their involvement in creating this apparent surge in pro-reform sentiment, because if people knew about their involvement, it would blow the credibility of the whole project. A January, 1995 "privileged and confidential" memo from Covington and Burling, a long-time tobacco industry law firm, says that to be effective, media activities promoting tort reform "must not be linked to the tobacco industry."

People Fell for It

The massive, industry-created PR machine pumped out erroneous information long enough, and through enough media channels, to actually tweak popular opinion of the issue. A key strategy for luring the public into support "tort reform" has been fabricating injury cases, or skewing the facts of real cases just enough to make them look egregious, and publicizing these supposedly "absurd," outrageous cases pervasively through the same media channels listed above. In recent years, a new channel has been the Internet.

Bogus Cases, Twisted Facts

A famous fake pro-tort-reform case that received widespread attention was the "RV autopilot motorhome suit," a version of which began circulating on email in the spring of 2001. The story went like this: In November, 2000, Mr. Grazinski purchased a new, 32-foot Winnebago motorhome. On his maiden drive home, he set the cruise control to 70 MPH while driving down the interstate, and then left the wheel to go in back and make himself a cup of coffee. Predictably, the RV careened off the road and crashed. Mr. Grazinksi sued Winnebago for damages because the owner's manual failed to warn against doing this. As the story went, Mr. Grazinski won $1.75 million plus a new Winnebago.

The story was a complete fabrication, and was circulated along with a list of six other equally outrage-inducing "frivolous lawsuit" stories. The last paragraph of the email said, "Please assist our law offices in a tort reform program. We are attempting to put a stop to these insane jury awards by sending this email out to the public in hopes of swaying public opinion. Please forward it to every email address you know." The email was signed by a fictitious law firm called "Hogelman, Hogelman and Thomas" in Dayton, Ohio. The RV "autopilot" story drew outrage and won even more notoriety after it was given a "Stella Award," created to recognize the year's most outrageous lawsuit. The "Stella Award" was named for a hapless, elderly New Mexico woman named Stella Liebeck, who, because of the "tort reform movement," became the target of more insult and derision than anyone deserves.

Stella Liebeck: America's "Lawsuit Abuse Poster Child"

Ask people if they think frivolous lawsuits are a problem, and many will agree. Ask them to name just one nutty lawsuit and invariably they point to the now-famous "McDonald's hot coffee" case, Liebeck v. McDonald's Restaurants. The only problem is, this case wasn't frivolous at all; it was deeply serious.

In 1994, Stella Liebeck was a 79 your-old passenger in a stopped car when she attempted to open a cup of coffee purchased at a McDonalds drive-up window. While removing the lid to add cream and sugar, coffee that was between 180 and 190 degrees spilled on her legs and groin. Liquids at this temperature cause third degree burns, a type of burn that penetrates the entire thickness of the skin all the way down to the muscle -- in as little as two seconds. The thinner the skin, the deeper the burn.

McDonalds' corporate policy required its restaurants hold coffee-to-go at this temperature, so it would stay good and hot over a long car trip. Ms. Liebeck required eight days of hospitalization, debriding and skin grafts to recover from the accident. She lost 20 percent of her body weight through the ordeal, and was permanently scarred and disabled for over two years.

Contrary to widely circulated versions of this story, Ms. Liebeck did not seek to sue McDonalds over the accident. Rather, she asked McDonalds to cover the cost of her hospitalization, about $11,000. McDonalds offered her just $800. Ms. Liebeck refused the offer and her case went to trial. Moreover, McDonalds had further opportunities to resolve the case before it got to court, including an offer by Ms. Liebeck's attorney to settle for $300,000. But McDonalds refused all attempts to settle the case. At trial, it was revealed to the jury that McDonalds had had more than 700 previous reported claims of severe burns from its coffee between 1982 to 1992, and that many of the victims -- men, women, children and infants (since it is a family restaurant) -- were burned over the same parts of their bodies and to the same degree as Ms. Liebeck. During the trial, a McDonalds executive referred to this number of injuries as "trivial." It was also revealed that McDonalds had settled a number of these prior cases for payments amounting to over $500,000. Witnesses for McDonalds testified that restaurant customers were unaware of the extent of the danger posed by spills of coffee served at McDonalds' required temperature range, and that McDonalds took no steps whatsoever to warn customers about the hazard. The company could offer no explanation about why it did not warn customers, and, despite the light being shone on the frequency and severity of injuries it causes, said they had no plans to put up any warnings. The jury found McDonalds' behavior callous, and ruled the company 80% at fault and Ms. Liebeck 20% at fault in the accident. They imposed a penalty on McDonalds equal to just two days of coffee sales, about $2.7 million. A trial judge reduced that amount to $640,000. After the trial, McDonalds turned down the temperature of its coffee, saving hundreds more people from suffering the same kind of painful, life-threatening burns that Ms. Liebeck suffered.

The actual facts of Ms. Liebeck's case were almost completely obscured from public discussion, as tort reformers cherry-picked only certain facts and publicized them to make the case look trivial and absurd. The Association for California Tort Reform, and tobacco industry-funded organization, ran radio ads hyping the "absurdity" of Mr. Liebeck's case to gin up widespread public support for tort reform. ABC News greatly minimized the case in a May 2, 2007 news piece about frivolous lawsuits. Newspapers jumped on the bandwagon, too, and widely carried headlines that trivialized the case and were short on facts, like "Hot cup of coffee costs $2.9 million," and "How a jury decided McDonalds should pay a woman millions for a hot-coffee spill." The "tort reform" movement portrayed Ms. Liebeck as a money-grubbing golddigger and turned her into an object of national ridicule.

Outrage-inducing headlines like the ones generated about Stella Liebeck's case sell newspapers and gin up support for tort reform. Such headlines may be a harder to get now, though, as people become more aware of American industry's role in pushing tort reform, and how it has contributed to skewing the truth. Perhaps the need to generate favorable headlines is why one of the biggest cheerleaders for tort reform, the U.S. Chamber of Commerce Institute for Legal Reform, has started funding its own newspapers, like the Madison County Record and the West Virginia Record.

There are Better Strategies than "Tort Reform"

In a September 11, 2009 interview on 60 Minutes, President Obama said that best solution to medical malpractice is to reduce medical costs and improve the quality of patient care, not to tinker with the American judicial system. He was right to take that overview. Given the origins of the "tort reform movement" in corporate greed, one thing is clear: the whole idea of manipulating the judicial system to put certain people at a disadvantage is utterly unfair and one-sided. Our attention should be turned to ways to reduce the incidence of medical malpractice, and there are plenty of more insightful ideas to consider.

Small Changes Can Make Progress With Less Harm

Medical malpractice lawsuits are not the bogeyman big business wants us to believe. A study of tort trial verdicts across the country by the U.S. Department of Justice (done in 1996, when big industry was first ramping up its fake "tort reform movement") showed that plaintiffs won only 23% of medical malpractice trials, and the median final award to plaintiffs was only about $31,000. Insurance companies and their lobbyists have admitted that capping damage awards in medical malpractice lawsuits won't result in lower premiums. According to a September 22, 2009 letter from Public Citizen to Senator Max Baucus, Chair of the Senate Finance Committee, currently medical malpractice lawsuits constitute less than 0.6 percent of all health care spending, the lowest level ever recorded. What's more, states that have already enacted the most extreme "tort reform" laws have seen little or no reduction in their health care costs. On the other hand, there are many inexpensive changes that are already known to make health care safer.

One example is the World Health Organization's Surgical Safety Checklist, a simple checklist that, when used before surgeries, has been shown to significantly decrease the rate of surgical errors. A federal law requiring hospitals nationwide to publish their infection rates could increase motivation to decrease those rates. Currently such laws exist only on the state level, and not in every state. Preventing doctors with track records of malpractice from fleeing from state to state could also reduce malpractice rates. According to the National Practitioner Data Bank, between September 1990 and September 2002, just 5% of doctors committed 54% of all malpractice problems. Creating a national registry that tracks doctors' records would prevent these doctors from avoiding detection by moving to another state. These are just a few of the ideas out there that get to the heart of the malpractice problem without interfering with the rights of injury victims. There are probably lots more out there. It would do a terrible injustice to victims of true malpractice to alter the civil justice system by enacting "tort reform," and especially those measures preferred by the tobacco and insurance industries, and their other big-business allies.

There may be a problem with medical malpractice in this country, but at its core, it points to a problem of incautious medicine and the need for more attention to patient safety than of an onslaught of truly excessive or frivolous litigation. After all, as even Philip Morris knows, "an ounce of prevention is worth a pound of cure."