The following is an exchange that occurred between this writer and a representative of The Buffalo News editorial staff on May 7:
O'Connell: If trial lawyers don't look out for the legal interests of injured persons, then who will?
The News: No one.
This brief exchange underscores just how wrong it was for The Buffalo News to print the recent series of editorials on the topic of tort reform or better titled, "Tort Deform." In addition, The News should have disclosed in its report that it is owned by Warren Buffett, the second richest man in the world, who has billions invested in a minimum of 50 insurance companies and countless huge corporations.
The Buffalo News was the latest entity to be duped by the slick, well-funded public relations campaign of insurance companies and big business. Who else has been duped? Doctors, politicians, small businessmen and businesswomen, construction workers, automobile dealers, and the list goes on. Who is now the target of this campaign? You. The American public.
Accompanying the Viewpoints story that kicked off the series, The News ran several color graphs under the headline, "A few facts." Those so called "facts" were intended to sway you that the reform proposed was necessary. Let's take a look at those "facts."
First, it was portrayed that New York's tort filings grew by 13 percent from 1991 through 2000. What The News didn't make clear is that the number of lawsuits has decreased every year since 1996. Why didn't The News include that information? Perhaps it is because a steadily decreasing number of lawsuits would argue against the basic premise of The News editorials. After all, if there are fewer lawsuits, how could The News argue that the system needs change?
Second, The News reported that the national median jury award for medical malpractice doubled between 1995 and 2000, from $500,000 to $1 million. The News cited an admittedly incomplete database in proposing these figures as "facts." The source used by The News, Jury Verdict Research, states on its Web site that it does not have information from every lawsuit or verdict.
However, that information is available in the National Practitioners Data Bank. That database states that the median payment in medical malpractice cases increased from $100,000 to $125,000.00 during that same period. Even The News acknowledged the lower figure in its series.
Third, The News referenced an unpublished study authored by Lawrence Bassett, M.D., that the No. 2 reason why radiology residents weren't interested in mammogram fellowships was the fear of medical malpractice lawsuits. Not disclosed was the fact that the No. 1 reason why residents didn't want mammography fellowships was, as Bassett stated, "the field wasn't glitzy enough."
Finally, The News wrote that the cost of a new house has increased by several thousand dollars due to the litigation explosion, citing as its only authority the business manager of a local builder.
Here are some facts that you, the reader, should have at your disposal:
1. Profit margins of insurance companies have gone down recently because of a downturn in the insurance industry stock market investments. This same cycle of events occurred in the 1970s, 1980s and is occurring once again. (International Risk Management Institute and the Wall Street Journal).
2. The insurance industry operates outside of U.S. antitrust laws, which are designed to prevent price fixing by collusion.
3. Claim payouts have remained flat for more than 10 years, not drastically increased as claimed (Americans for Insurance Reform).
4. Gross malpractice in hospitals accounts for approximately 100,000 deaths each year and contributes to more than 1,000,000 injuries (Harvard Study and National Institute of Medicine).
5. The Aetna Casualty & Surety and St. Paul Fire & Marine insurance companies have stated that litigation limits and tort reforms would have no effect on claims and have little or no savings on insurance premiums.
6. Medical errors are estimated to be eight to 10 times more common than medical malpractice lawsuits, and only 2 percent of all medical mistakes lead to malpractice claims (Harvard Medical Practice Study).
7. Five percent of doctors commit over 50 percent of medical malpractice in the United States (National Practitioner Data Bank of Department of Health and Human Services).
8. In New York, of doctors who have had five or more malpractice payments, only 15 percent have been disciplined by the State Board (Public Citizen Health Research Group).
9. Many of the so-called tort reform proposals are based upon misinformation or inaccurate statements of existing law (New York State Bar Association's Task Force to Consider Tort Reform Proposals).
A picture should now be emerging that The News series was just the latest in a campaign to have you jump on the "bandwagon of misinformation" of the wealthy insurance industry and big business. Should you? That decision is yours. However, I believe that your opinion should be developed only after you have been provided objective information.
What right is being attacked? Your right to trial by jury. By taking away from American juries the right to decide very important issues regarding responsibility of wrongdoers and the ability of injured Americans to be appropriately compensated for those wrongs. Why? Because when juries speak, insurance companies and big business listen! That is the foundation of the American civil justice system. And even the construction industry would agree that if you have a poor foundation, one eroded by lack of important ingredients, the system collapses.
What should you do? One suggestion is to insist on reforms that will truly address the problems that exist -- insurance reform. How? By telling the insurance industry and big business that:
We don't want our access to the American civil justice system impaired.
We don't want to suffer a decrease in the quality of our medical care.
We want the insurance and medical industries to go after bad doctors and list this information on the American Medical Association's Web site.
We don't want defective devices or drugs.
We want safe places to work.
We want good care for our patients in nursing homes.
We don't want HMOs dictating our medical care decisions from our doctors.
We don't want limits put on our damage awards.
We want higher insurance rates charged to the high-risk doctors, just as with automobile insurance.
We want Sunshine Laws that will prevent secrecy in settlements and promote public safety.
We want widows, orphans and the disabled to be rewarded, not CEOs, the insurance industry, big business or bad doctors.
We don't want caps put on the right of recovery to the most severely injured patients with the strongest claims.
This isn't to say that the tort system can't use a little reform itself; it certainly can. As an example, New York's wrongful death laws currently recognize little to no value to the life of a nonwage earner such as a child, nonworking spouse or retired person. The value of these persons is obvious to their loved ones and must be recognized in the law as well.
After all, who really suffers if these supposed tort reform measures go through?
Immediately, the seriously injured person and his or her family. Who else? You! By further taking your tax dollars to pay for the medical care (Medicare) and necessities of life such as food, clothing and shelter (social services), the injured person can no longer provide for his or her family because of the negligence of another.
Now, just who is this trial lawyer being painted in a bad light by the wrongdoers? He or she is a small businessman or businesswoman who works 50 hours per week, who employs local people and pays their salaries and employment taxes, who pays rent, who pays taxes, who provides a valuable public service and who volunteers in your community. You've seen him or her. You know him or her.
Remember, if the trial lawyer doesn't look out for the legal interests of the injured person, who will?
TIMOTHY G. O'CONNELL is president of the New York State Trial Lawyers Association Western Region Affiliate. He is a partner with the law firm of Siegel, Kelleher & Kahn.