West Palm Beach Personal Injury Lawyer

Big Tobacco Caught in the Back Draft of its Scorched Earth Litigation Strategy

Cal Warriner — Fri, 20 Nov 2009 09:20:46 GMT

Big Tobacco's pants are aflame today after suffering a 300 million dollar verdict in yet another defeat in its Florida litigation war. You see, knowing it has imposed more death and suffering than modern war, pestilence and aids combined, Big Tobacco's mantra has always been millions for defense and not a dime for restitution (and a few extra hundred million thrown in for political payola and advertising). Historically the strategy has worked. The big bully with its army of well healed, silver tongued lawyers could outspend, outmaneuver, and overwhelm wheezing customers and their lawyers. Tire them out, grind them into the dust, argue every issue, appeal every ruling and intimidate lawyers into not taking up the cause. No matter the cost, Big Tobacco had to make suing it so distasteful that smokers would just die and go away quietly. I mean, what would happen if all the sick smokers sued us at once? Right?

Today however, as Phillip Morris arrogantly thumbed its nose at yet another former customer who sat in the courtroom on oxygen, the strategy cost Phillip Morris 300 million dollars. Having once again turned its back on the opportunity to settle for for less than it paid one defense expert, Phillip Morris placed its fate in a gaggle of highly skilled cigarette lawyers from Chicago and San Francisco. The juries verdict, millions for restitution, to hell with your million dollar defense.

You see, the tide has turned in Florida. Instead of unleashing its army and unlimited resources on one poor smoker, Big Tobacco faces almost 8000 filed cases that are all proceeding concurrently. The cases arise from years of class action litigation in which a jury and ultimately the Florida Supreme court finally put an end to decades of Big Tobacco's dismiss, distract, deny and deceive strategy. No longer are Tobacco's slick litigators allowed to come to court ready to contest whether nicotine is addictive or whether it causes lung disease and cancer. Nor can the companies argue that their products were not defective or that they were not guilty of negligence and fraudulently lying to the consuming public about the dangers of cigarette smoking. Remember, as late as 1994 every tobacco company CEO stood before Congress and swore that nicotine was not addictive and that there was no medical proof linking cigarette smoking to cancer. Swallow lye to perpetuate the lie, no problem. Nope, the issue for the jury to decide in Florida is now what it always should have been. Is it the smoker's fault for buying the defendants' product and using it exactly as intended (quite ironic) or is it the product's addictive qualities manipulated so adeptly by Tobacco chemists that resulted in the smoker's disease? For the first time in the history of tobacco litigation, it's a fair fight. Recent history teaches when Big Tobacco can't poke, bite or hit below the belt, it is losing its shirt.

Since members of the now decertified Florida class have been trying their cases against Big Tobacco, the smoker has won eight of ten trials many in the multiple millions of dollars with today's 300 million dollar verdict being the largest. In each case, Tobacco has flatly refused to discuss settlement many times rejecting settlement offers of as little as $10,000. As a result, all of the smoker's litigation costs and attorney's fees are being tacked on to the verdict. Tobacco already faces over fifty trials next year with more being set every day. If past is prologue, the nicotine purveyors are in for disastrous 2010.

As the saying goes, all good things must come to an end. In Florida at least, the courts have put an end to traditional Tobacco defenses. When then will the companies spin to the financial industry about its exposure in Florida tobacco litigation end. The Florida Supreme Court's Engle decision is flawed, this verdict is an aberration; we intend to appeal; we feel good about our chances on appeal; we have plenty of resources to defend ourselves; lawyers will lose interest and Engle cases will just go away like the flight attendant second hand smoke cases did. Hogwash.

With this verdict, it's time that the financial markets woke up smelled the coffee. They need to start asking probing, hard questions. Can an industry that sells an addictive product that has killed millions and continues to kill hundreds of thousands each year cheat the fates indefinitely? Will the American public stand to have its children and its children's children addicted and killed by this evil industry?

Ironically, the litigation strategy that has served Big Tobacco so well for so long has exposed its biggest weakness. Tobacco cases are very winnable. They are even more winnable when filed en masse by just a fraction of its victims. Juries no longer buy Tobaccos' lies. Ironically, for less than the cost of corporate jet fuel, Big Tobacco could have resolved the entire Florida litigation. Now, it must live with the consequences of an archaic philosophy, hatched moons ago by dead men, each made rich by the very cigarettes that ultimately killed them.

Originally posted at InjuryBoard by Cal Warriner

Tobacco Held Responsible for Placing Profits Ahead of...Everything

Brenda Fulmer — Thu, 19 Nov 2009 17:16:34 GMT

Philip Morris suffered yet another blow in the latest post-Engle tobacco trial. A Fort Lauderdale jury rendered a verdict on November 19, 2009, for $300 million against the tobacco manufacturers on behalf of a living smoker who suffers from severe emphysema. The verdict included $246 million in punitive damages.

This verdict is one of a number of verdicts that have been entered in completed jury trials in Broward and Escambia Counties this year.

More than 8,000 claimants and their survivors have individual lawsuits pending in courts throughout Florida. These claims stem from the Engle class action which was filed in 1994 and resulted in a verdict of more than $145 billion after one of the longest trials in history. Currently, there are dozens of trials scheduled for 2010 in Miami, Fort Lauderdale, Bronson, Jacksonville, Gainesville, Bradenton, Tampa, Pensacola, and Daytona Beach.

Thousands of additional smokers and their survivors are hopeful that the current scheduling and budgetary problems facing the Florida court system are overcome so that they may have their day in court in the not too distant future.

Originally posted at InjuryBoard by Brenda Fulmer

Prevention, Early Detection and Good Health

Rosalyn Sia Baker-Barnes — Thu, 19 Nov 2009 15:03:59 GMT

A new study released by the United States Preventive Services Task Force has women and doctors confused and torn over recent recommendations regarding what age a woman should receive annual mammograms.

For years, the American Cancer Society, physicians, and other government organizations, have recommended that women receive annual mammograms at the age of 40 to prevent breast cancer, which seemingly aided in the early detection of the disease. Now, the task force, a government panel of doctors and scientists, are recommending that most women wait until age 50 to get mammograms and then have one every two years. The study states that beginning to test for breast cancer at age 40 saves few lives and can even harm patients. They point out that if a mammogram gives a false positive, it can lead to anxiety, unnecessary additional testing and biopsies, and exposure to radiation. Mammograms typically produce false-positives in about 10 percent of cases.

Opponents disagree and feel that these new guidelines will only confuse and scare women from seeking the recommended testing. The American Cancer Society posted a statement on its website stating that it would continue to recommend annual screening for all women, beginning at age 40. “It (the guideline) is very confusing and that’s one of the things we’re worried about is that women are already confused, scared, and worried about getting a mammogram because of what they may find out,” said American Cancer Society spokesperson Mary Kathryn Walker.

Breast cancer survivors are also angry about the new guidelines saying that if they didn’t receive mammograms in their 40’s, they wouldn’t be alive today. The American College of Radiology and other experts condemned the change saying the benefits of routine mammograms have been clearly demonstrated and continue to play a key role in reducing the number of mastectomies and deaths. Breast cancer is the most common cancer and the second leading cause of cancer deaths in American women.

The task force guidelines don’t apply to women at high risk for breast cancer, including those with genetic mutations that make them more susceptible to the disease.

Diana B. Petitti, vice chairman of the U.S. Preventive Services Task Force says “We’re not saying women shouldn’t get screened. But we are recommending against routine screening. There are important and serious negatives or harms that need to be considered carefully.”

The task force’s guidelines also recommend against teaching women to do regular self-exams, something that that American Cancer Society has been touting for years. The practice was so heavily promoted at one time that the organization distributed cards that could be hung in the shower demonstrating the circular motion women should use to feel for lumps. Recently, the American Cancer Society and other medical groups have backed off promoting breast self-exams because of scant evidence of their effectiveness, even before the new task force guidelines were revealed.

Insurance companies are claiming that coverage will not likely change because of the task force guidelines. In the past, the guidelines issued by the U.S. Preventive Services Task Force, has influenced the stance Medicare and many insurance companies take on healthcare coverage. Opponents of the new guidelines fear that the findings could spur insurers to deny coverage of annual mammograms and breast tests given to women under 50. “Screening isn’t perfect, but it’s the best thing we have and it works,” says Dr. Carol Lee, a spokesperson for the American College of Radiology. She also suggested that cutting health care costs may have played a role in the recent decision, but task force vice chairman Petitti said the task force does not consider cost or insurance in its review.

Whether or not you believe women’s health is again under fire, it is important to know your family medical history and routine visits to your doctor are your best tools against any type of disease, including cancer. The new task force guidelines are just that, guidelines. Mammograms, like all medical interventions, have risks and benefits. These new guidelines will hopefully help spur conversations and assist women in making the best decision for their personal circumstances.

Originally posted at InjuryBoard by Rosalyn Sia Baker-Barnes

FDA Warns About Pain Pumps -- Manufacturers Knew

John Hopkins — Mon, 16 Nov 2009 09:14:20 GMT

Sometimes law and science do not make close bed fellows; particularly where one or the other is trying to understand their respective meaning.

The FDA has come forward to warn about continuous intra-articular infusion of pain medication. This is the practice of using a pump to provide continuous infusion of pain medication to a surgical site. These devices began being used in abdominal surgeries and, predictably, that singular use did not provide manufacturers with sufficient market availability (profit). So, many manufacturers such as Breg, Strytker and IFlow began to promote the use of the pumps in shoulder, knee and ankle surgeries.

The explanation given by the manufacturers was that providing continuous pain medication to the place where you just operated gave the patient an easier recovery time. Doctors do, in fact, care about their patients and, so this manufacturer explanation had real attraction to doctors. Some of the manufacturers went further and demonstrated to doctors ways in which they could code the procedures and receive additional compensation if they used a pain pump. To doctors who often are forced to fight with insurance companies for a fair payment, this, too, seemed attractive.

What manufacturers “forgot” to tell doctors is they had not conducted competent testing of the use they were promoting. The manufacturers forgot to tell doctors that the FDA required clinical trials before use of the pain pumps intra-articularly could be permitted. The manufacturers forgot to tell doctors that no clinical testing had been done on the very tissue, cartilage, into which the pain pumps would be injecting medication.

When pain manufacturers saw the first study come out potentially linking destruction of cartilage to the use of pain pumps, they quickly retreated from their recommended application and circled the wagons. They knew that because they had sponsored no meaningful research of their own, interest would quickly evaporate for studying the problem if they stopped recommending intra-articular use. After all, why study something that will not happen anymore?

Pain pump manufacturers also hoped that the lack of research would shield them from liability by arguing to courts that insufficient scientific evidence existed to relate use of the pain pumps with complete destruction of joints in relatively young people. Sadly, by using a legal theory called “Daubert”, some courts have, in fact, bought into the manufacturers’ ingenuous arguments. Manufacturers argue that courts should ignore, as insufficient, the testimony of surgeons who, for 30 and 40 years, have seen no destruction of cartilage until they started using pain pumps in the way recommended by manufacturers.

Originally posted at InjuryBoard by John Hopkins

Loser Pays -- Tort Reform Hypocrisy

Patrick Quinlan — Fri, 13 Nov 2009 15:06:08 GMT

I just read another anti-lawyer diatribe by John Stossel. Mr. Stossel is one of the great many Tort Reform Hypocrites: people who scream in public about evil trial lawyers filing frivolous lawsuits for pain and suffering damages, but then run to a trial lawyer the moment that they feel that their rights have been violated. Mr. Stossel has said:

“We all have pain and suffering in our lives. And if each time we hang onto it until we get some kind of compensation, society can’t work.”

Yet when a pro wrestler slapped him in 1986, what did Mr. Stossel do? He sued for -- you guessed it -- pain and suffering damages.

Mr. Stossel ends his latest attack on plaintiffs’ lawyers with this suggestion:

"America needs “loser pays." Lawyers marginalize "loser pays" by calling it “the English Rule," as if it’s some peculiar British rule. But it’s not. "Loser pays" is the "Rest-of-the-World Rule."

To Mr. Stossel and all of his tort reform warriors, I say “be careful what you wish for.” By no means do plaintiffs’ lawyers win every lawsuit. But, according to a Bureau of Justice Statistics report, plaintiffs won 59% of state court civil trials in 2005. Interestingly, that number is up from 55% in 2001, and plaintiffs won a higher percentage of bench trials than jury trials, but those are both subjects for another day. Moreover, the 59% figure does not account for the great many valid claims that get settled before trial. Suffice it to say that every plaintiffs’ lawyer I know would be thrilled to see a prevailing party fee provision (or, as Mr. Stossel puts it, “loser pays”) become the law of the land.

Originally posted at InjuryBoard by Patrick Quinlan

The Substance of Water

Jack Scarola — Tue, 10 Nov 2009 11:42:19 GMT

There have been a lot of heated debates surrounding the creation of a state water commission that could route water from North Florida to the overpopulated and overdeveloped South Florida region. Poor developmental planning and a lack of sensitivity to our valuable land and water resources are to blame. We now have to consider routing water to areas that developers have recently built with no concern to the environmental impact it would have on our resources.

In 2003, at the height of the land boom, Florida business leaders came up with a plan to create a state water commission to route water to newly built developments in South Florida. Developers continued to build home and business with no foresight for the repercussions of that growth on our environment and resources. Now it is the taxpayers who are dealing with the implications of their actions.

As a society, we give little thought to where our water resources come from. We turn on the sink, and water comes out. We turn on our sprinklers and water is available. We never give a second thought to where this valuable resource comes from or how it gets there. Now is the time to focus on the conversation of water and planning on how to use less, rather than how we can use more.

The Florida Hometown Democracy Land Use Initiative, or amendment 4, will be brought to the voters on November 2, 2010. This amendment gives voters more say over development, and if passed, any land-use decisions will require voter approval for all changes to local comprehensive land-use plans. In 2008, a lack of signatures kept the initiative off the ballot, but this year it has enough supporters to win a chance to be approved by Florida voters.

Supporter and Florida Hometown Democracy Land Use president Lesley Blackner says “Mismanaged growth destroys communities.” Amendment 4 has gained support from groups such as Clean Water Action Network of Florida, Alliance to Protect Water Resources, the Audubon Society, Save Our Wetlands Coalition, the Sierra Club, and hundreds of other environmental groups throughout Florida.

Those opposing Amendment 4, such as The Florida Chamber of Commerce and other industry groups, say they “strongly oppose” the initiative and argue that the bill would “put us in a permanent recession for Florida’s economy.”

Bottom line is this: we either conserve our natural resources, or we will run out. We can make efforts to pull water from other areas in Florida to accommodate our thirst for water in overdeveloped areas, but ultimately, that will also run out; not to mention the millions of dollars it will take to build the infrastructure for it. Our best bet is to truly make an effort to conserve our natural resources and become forward-thinking in our planning for land and development. We have overindulged for too long and developers have overbuilt and sucked the water dry. Now we must live with the consequences.

Can we afford NOT to do something to try and correct past poor judgment?

Originally posted at InjuryBoard by Jack Scarola

Tort Reform, Lies, and Lady Justice

John Hopkins — Thu, 05 Nov 2009 16:37:17 GMT

It is all about reforming our tort system, right? I mean fixing the health insurance problem for millions of uninsured people is all about preventing the filing of lawsuits against negligent doctors and hospitals, right? We need to limit or eliminate the constitutional right to jury try for a certain class of citizen to provide health insurance for our citizens, right? We need to provide special immunities to certain professionals to fix the health insurance problem?

Who has a “problem” that any of this fixes? One class of “people” has a problem that this will fix: insurance companies. The insurance industry wants tort reform so the insurance industry can increase profits. It is, in fact, that simple.

No one has ever been able to provide me with objective evidence that contradicts any of the following:

There are not an abundance of frivolous malpractice suits being filed now and there has not been in recent memory.
Malpractice claims do not, watch my lips, do not drive up insurance costs. In fact, under oath, many insurance executives have repeatedly testified as such.
Doctors are not fleeing states because of malpractice claims. In fact it is the very, very small minority of doctors who are sued for malpractice.
Malpractice claims do not drive up insurance premiums across the whole population of physicians. Empirical evidence demonstrates that little correlation exists between malpractice claims and increased premiums. Insurance executives have, under oath, also testified to that fact.
Tort reform will never lower insurance costs. The insurance industry simply does not have a track record for doing that.

All of this is a distraction from accomplishing a solution to the real problem. How do we provide health insurance to millions of citizens who are without it? Legislators indebted to the insurance industry need to throw up road blocks and provide distraction they can trump up to be popular with many people in this country.

When 98,000 people die every year and many more are injured from medical malpractice. I must wonder if the tort reformers would be making statements they know are not true if medical negligence killed their wife, their husband, their mother, or their child. Of course they would not. In the height of absolute indifference to the suffering of victims, tort reformers fabricate, invent, and misrepresent; all to benefit an industry who is dumping big dollars into their pockets.

So, if they are successful with roadblocks and propaganda campaigns, the victim will include justice herself.

Originally posted at InjuryBoard by John Hopkins

The Drug Business, Broadway, and Casper the Friendly Ghost

John Hopkins — Tue, 27 Oct 2009 09:13:35 GMT

“Ghost writing”: a person who writes books, articles, etc. for another who professes to be the author. Drug companies spend billions of dollars advertising drugs that neither I nor you can go to the store and buy.

Drug companies produce million dollar ad campaigns filled with beautiful fields of flowers; balloons flying around beautiful actors; and very sophisticated, successful, or just plain fun people who take the drug du jour, much to the better fulfillment of their lives. Then these same drug companies spend millions to market these drugs to physicians; ultimately the only class of people who can really open the gate to consuming of drug company products. Quite a long way around the block and a huge investment to sell a product.

On the direct marketing side, virtual Broadway productions are put together to convince consumers to ask their physician to prescribe this drug or that drug to cure the ills they have; or the ills they have finally realized they have after seeing the well heeled drug company ad. We are entertained and we are informed of all the symptoms we did not know we had; the diseases we might have; and the drugs available to treat one or the other.

Drug companies have traditionally justified the effectiveness of their drugs through “independent” research, usually funded by the drug company manufacturing the drug being researched. Once the research was conducted and the conclusions reached, the findings were published in responsible, self-regulating medical journals. These various articles served to demonstrate to the medical community, largely physicians, that the particular drug was a good one for patients.

We now find that at least some drug companies have been ghost writing supposed “independent” research articles for physicians, researchers, and experts. I am guessing that the way it works is Big Drug Company marketing person calls well established, expert physician and says something like:

“Gee, doc, we have this research we have done that leads us to the well founded conclusion that our new drug can cure the common cold. We need someone like you (an expert with a well heeled reputation) to sign off on the legitimacy of the research in an article we intend to submit to one of the well respected, self-regulated journals. What? Oh, of course its all true. We did this research entirely independently and our, er your conclusions are well supported. Yes, we stand to make a kazillion dollars on this one. Well, we can’t pay you a kazillion in fees, but maybe something in the high multiple figure range."

We then see a big production commercial about drugs and our learned physicians, for good reason, are forced to rely on Big Pharma’s Fairy Tales for evaluation of whether to prescribe a given drug.

Some publications like the Journal of the American Medical Association are questioning the real extent of ghostwriting, but frankly in my book, any is too much. The New England Journal of Medicine opines that maybe around 10% of articles involve some amount of ghostwriting.

Senator Charles Grassley has been spearheading Senate bill 309, Physician Payments Sunshine Act of 2009:

Physician Payments Sunshine Act of 2009 - Amends part A (General Provisions) of title XI of the Social Security Act to provide for transparency in the relationship between physicians and applicable manufacturers with respect to payments and other transfers of value and physician ownership or investment interests in manufacturers. Requires any manufacturer of a covered drug, device, biological, or medical supply that makes a payment or another transfer of value to a physician, a physician medical practice, or a physician group practice to report annually, in electronic form, specified information on such transactions to the Secretary of Health and Human Services. Requires any such manufacturer, or related group purchasing organization, also to report annually to the Secretary, in electronic form, certain information regarding any ownership or investment interest (other than in a publicly traded security and mutual fund) held by a physician (or an immediate family member) in the manufacturer or group purchasing organization during the preceding year. Prescribes administrative penalties for failure to comply with these requirements. Requires report submission procedures to ensure public availability of required information on a website.

So what can the consumer do? When you see your physician, be open and candid about your actual symptoms and your entire medical history. Your physician is trying to help you.

Ask questions about any tests your physician wants to do; what your physician expects the tests may show; and what your physician thinks you could be suffering from. Ask your physician where you might go to read about the tests and his or her differential diagnosis.

If your physician suggests prescribing drug treatment, ask questions:

What condition is he or she trying to treat?

What is the drug intended to treat?

What are the potential complications of taking the drug?

What adverse reactions from the drug are possible and what reactions are more likely than some of the others.

Is there a period of time before you will begin to experience the effects of the drug?

How long will you need to take the drug?

Are there alternative drugs to the one being prescribed? If so, why is your physician prescribing this particular drug?

Are there alternatives to taking any drug for the particular medical condition? If so, why is the physician recommending drug therapy?

Ask anything else you want an answer to and insist on clear, understandable answers. It’s your body and your healthcare decisions to make with the guidance of a trusted physician.

Originally posted at InjuryBoard by John Hopkins

Correcting Injustice--The Medical Device Safety Act

John Hopkins — Mon, 26 Oct 2009 10:26:43 GMT

The decision in the Supreme Court case of Riegel v Medtronic created special protection for medical device manufacturers that defied all logic and contradicted 30 years of experience in medical device regulation. The Riegel case set forth that lawsuits against medical device manufacturers were preempted where the manufacturer had properly submitted the device to and received approval from the food & Drug Administration. This decision ignored real world issues. Nearly everyone knowledgeable at the FDA will tell you they have neither the time nor the budget to conduct sufficient independent analysis of every medical device. Largely, their approval relies on the truthfulness and sufficiency of the testing reported to them by the device manufacturer. By necessity, the FDA’s process is somewhat like the fox guarding the henhouse, in situations where the manufacturer has failed, intentionally or negligently, to put the medical device through the testing that would best evaluate the product’s safety. The Medical Device Safety Act, currently in Congress, would seek to correct this error and place consumers back on level footing with medical device manufacturers. US Representative Henry Waxman summarized the situation well when he said:

"As the Supreme Court affirmed in its Wyeth decision yesterday, lawsuits by injured consumers play a critical role in helping to ensure safety," said Chairman Waxman. "The Court noted that these lawsuits 'uncover unknown drug hazards and provide incentives for drug manufacturers to disclose safety risks promptly.' The same is true for medical devices. We must act quickly to enact this important legislation that will restore the ability of patients injured by defective medical devices to seek compensation, and realign the incentives for manufacturers to ensure the ongoing safety of their products."

The bill has now garnered support from many organizations including:

AARP

Center for Justice & Democracy

Consumer Federation of America

Consumers Union

Homeowners Against Deficient Dwellings

National Association of Consumer Advocates

National Consumers League

OWL - The Voice of Midlife and Older Women

Progressive States Network Public Citizen

U.S. Public Interest Research Group

The New England Journal of Medicine

National Conference of State Legislators

National Research Center for Women & Families

What can you do?

Call your legislators and ask them to do the correct and just thing—vote in favor of the bill.

Go here to find contact information for congressional members!!

Originally posted at InjuryBoard by John Hopkins

Dragons, Tort Reform and Other Myths

John Hopkins — Tue, 20 Oct 2009 10:47:26 GMT

I am not just picking on Jay Hancock at the Baltimore Sun and his comments about tort reform. Actually, Mr. Hancock’s comments, although containing the typical unsubstantiated statements that sound like fact, are actually sane in comparison to some of the pundits out there shouting for tort reform to “fix the civil lawsuit system”.

I think it was in George Orwell’s book, 1984, that politicians grasped the repeat-it-to-fact approach to things. This is where you get enough people to say the same thing over and over; the media latches on to the notion and repeats it; and it does not matter that no real substantial evidence to support the notion exists, people begin to spout the notion as if it is fact. That is exactly what has happened to tort reform.

So, let me use a column by Mr. Hancock to address some of the myths made to sound like fact.

“…doctors over-scan and over-treat patients to fend off lawsuits, costs billions of dollars a year.” I am not sure anyone can fairly assess whether claimed over treating is defensive medicine or simply good, cautious medicine. I am sure that no reliable basis exists for this claim except based upon the anecdotal evidence from the subjects of the alleged over treatment, doctors themselves. “

Trial lawyers bring dubious cases…juries deliver nonsensical verdicts.” Are their cases brought by attorneys that I “hear about” and I think, “what in the world was the lawyer thinking?” Yes, there are cases I “hear about” and conclude that very thing; but they are rare, once I learn the details of the case.

That is exactly the problem. People “hear about” cases, have no objective or informed information about the cases, and conclude they were “dubious”. I have been involved with jury trials for over 30 years and it is rare that a jury reaches a “nonsensical verdict”; if you actually knew about the case, heard the evidence that the jury received, and were present in the courtroom during the entire trial. Politicians and journalists do not inform themselves to this extent because it is not practical to sit through an entire three week trial. Instead, we “hear about” a trial and we are told “dubious and nonsensical” conclusions, because the politician or journalist could not possibly have reached a well informed conclusion.

Yes, I know, you are reading this and thinking: “McDonald’s coffee case”! Do us all a favor and really learn the details of that case, along with what the courts finally did with it before you decide it was “dubious” or the jury reached a “nonsensical” verdict. There was much more than sufficient evidence for the jury to conclude what they did in that case.

So, what are some of the facts about tort reform do we have? (In fairness, cited by Mr. Hancock)

"Tort reform as discussed in the United States would probably have very little impact," says Gerard Anderson, a professor at the Johns Hopkins Bloomberg School of Public Health. "The states that have enforced tort reform have about the same amount of litigation - and the awards are comparable - as states that don't."

A more drastic malpractice makeover would deliver substantial gains - but only once. New Zealand has a no-fault medical injury system in which lawsuits are essentially banned and experts decide how much to award victims. But even such a system, which nobody is talking about in the United States, would cut health care costs by maybe 7 percent at the most, Anderson said.

The nonpartisan Congressional Budget Office, as usual the best source for this kind of analysis, says malpractice costs make up only 2 percent of health care spending. "The evidence available to date does not make a strong case that restricting malpractice liability would have a significant effect," the CBO says.

Before draconian tort reform was passed in Florida, insurance executives testified, under oath, that tort reform would have no effect on insurance premiums; the executives did not believe a medical malpractice lawsuit crisis existed; and the executives did not believe frivolous lawsuits were really a problem, at least in medical malpractice. If these executives would benefit from tort reform, you must wonder why they would testify in this way. It is simply because the insurance industry and their minions of politicians have done such a great job of creating the mythical need for tort reform, they knew they could tell the truth and still have tort reform passed.

Please do us all a favor. Before all of you politicians decide to take away or severely limit my constitutional rights, please be sure you are doing it for reasons that are not dubious and base it on real, objective evidence. If you do, you will sensibly conclude that tort reform is a myth and practicing defensive medicine might simply be practicing careful medicine.

Originally posted at InjuryBoard by John Hopkins