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... National Federation of Independent Businesses (NFIB)
Competitive Enterprise Institute (CEI) ... are amongst the groups
described below well represented on Usenet ...
EXCERPT: You cant be pro-doctor and pro-patient and pro-plaintiffs
attorney at the same time, said Bush in mid-August in Michigan. I
made my choice. I am for medical liability reform now.
Thanks for clarifying this ... the "patients"of the world deserve to
know this.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~
http://www.commondreams.org/views04/1006-22.htm
Published on Wednesday, October 6, 2004 by The Nation
Look Who's Behind 'Tort Reform'
by Dan Zegart
from the forthcoming October 24, 2004 issue of The Nation
Just as the GOP convention was about to kick off in late August, the
US Chamber of Commerce made an unusual announcement. Although it had
never in its 100-year history endorsed a presidential candidate, the
organization vowed to help pump $10 million into TV ads in seven
battleground states urging voters to support restrictions on lawsuits.
Such restrictions have been endorsed by George W. Bush and opposed by
John Kerry. Calling it a make or break election for legal reform,
chamber president Thomas Donahue charged that lawsuit abuse destroys
jobs, drives doctors out of business and forces companies into
bankruptcy.
The ads put the 3 million businesses of the theoretically non-partisan
chamber squarely in Bushs corner. The Bush campaign has hit hard at
the Kerry/Edwards ticket for allegedly being pawns of plaintiffs
attorneys. Indeed, the lines could not be more clearly drawn. John
Edwards had a meteoric career as a malpractice lawyer, while the Bush
forces have made attacks on junk lawsuits a mainstay of their stump
rhetoric.You cant be pro-doctor and pro-patient and pro-plaintiffs
attorney at the same time, said Bush in mid-August in Michigan. I
made my choice. I am for medical liability reform now.
The crowd applauded, although voters have never shown the slightest
interest in tort reform. But regardless of whether or not the issue
helps Bush get re-elected, its heightened prominence demonstrates the
escalation of the stakes in what is now a thirty-year-long war by the
ultra-right to disembowel the civil justice system and make America
safer for companies to work their unfettered will. Piggybacking on the
campaign of an incumbent Presidentwho made lawsuit restrictions a
central part of his governorship in Texasthe tort reformers have
seized on this election as their defining moment.
In Texas, however, the future is already here, thanks to several
generous helpings of reform. Anyone who wants a glimpse of whats in
store for the rest of us would do well to look at Bushs legacy in his
home state.
Jackie Smith has a hard time with the idea that suing over her
mothers rape in a nursing home is frivolous. Smith voted against
Proposition 12, a constitutional amendment on the Texas ballot in
September 2003 that capped medical malpractice awards. No state in
history had ever taken the radical step of changing its constitution
to restrict lawsuits. Smith, a 54-year-old freelance writer, didnt
believe the TV commercials claiming that suits by greedy lawyers were
driving up malpractice insurance premiums to the point that doctors
were quitting medicine. Nevertheless, Proposition 12 passed by a
razor-thin majority.
Smith herself had never had reason to sue anyone, until 2:30 am on
November 7, 2003, when a male nurse noticed that a patients door at
the Heritage Duval Gardens Nursing Home in Austin was closed when it
should have been open. He heard crying, and when he snapped on the
light, he saw a man leap from the bed of an elderly woman. The woman
was naked. The mans pants were around his ankles. The man, according
to police, was Kevin Arceneaux, a 6-foot, 190-pound nurses aide.
Still sobbing softly in her bed was Smiths mother, an 85-year-old
Alzheimers patient. Two months later, police arrested Arceneaux and
he confessed.
Jackie Smith wanted the nursing home punished, especially when she
learned that Heritage knewor should have knownwhen it hired
Arceneaux that in eight years as a certified nurse assistant, he had
never held a job for more than five months. He arrived at Heritage
after a brief stint at another nursing home in Austin, where he had
been questioned regarding a woman who was sodomized there on his third
day. Before that, he worked eleven days at another facility. Despite
Arceneauxs checkered past, Heritage hired him on September 22 and put
him on the lightly supervised night shift. Within six weeks, an
Alzheimers patient was sexually assaulted a few doors down from
Smiths mother and then Smiths mother was raped, though police didnt
learn of the first attack until much later.
Jackie Smith hoped the Texas Department of Human Services, which
regulates nursing homes, would discipline Heritage Duval Gardens. But
DHS found that Heritage had done nothing wrong in hiring Arceneaux,
since the facility had performed the required criminal background
check, which came up clean. The agencys report found that based on
substantial evidence, [Arceneaux] sexually abused [Smiths mother],
but didnt cite Heritage for any deficiencies. (Administrators at
Heritage Duval continue to deny committing any impropriety in hiring
Arceneaux.)
Furious, Jackie Smith decided to try to do DHSs job herself, with a
lawsuit. It fell to Frank Ivy, an Austin lawyer, to explain that tort
reform in Texas had made her suit almost impossible financially no
matter how negligent Heritage had been. Since the assault took place
in the course of delivering medical care, it was considered
malpracticebut that wouldnt help Smith. A nursing-home patient cant
sue for loss of future income, a type of award that had been
separately capped. Punitive damages were unlikely because the standard
of proof was raised under then-Governor George W. Bush, requiring
Smith to prove that Heritage intended to harm her mother, the
so-called malice standard.
Ivy explained that the only money Smith could extract from Heritage
would be for her mothers pain and suffering. To that end, testimony
could be introduced about the terror caused by the brutal rape of a
confused, elderly woman. But even the most sympathetic jury couldnt
give her more than $250,000, the limit set in the constitutional
amendment that passed the previous September. Then Ivy explained why
even the maximum award, which Smith was unlikely to get, wouldnt be
enough. Tort reform would force Smith to hire experts in several
fields, including psychiatry and nursing-home administration, to prove
Heritage had been negligent, costing as much as $20,000 per witness.
And with settlements rarer because insurance companies know a jury
cant sting them for more than $250,000, a trial was far more likely
than before the initiative passed. All told, Frank Ivys five-person
law firm had to be prepared to spend $100,000 with no guarantee of
recovery or earning its contingent fee of 40 percent of the payout.
When all the math was done, the best Smith could hope for would be to
win perhaps $50,000 from a nursing home that apparently hired a sexual
predator to care for her mother.
Because of the changes in the law, Ivys firm now takes only a handful
of malpractice cases. He hopesbut
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