Columnist Steve Sebelius has an article posted which is high on DB’s Must Read List: “Heck opposes ‘junk lawsuits’ ? Since When?” It’s hoped that after reading this you’ll come back for more information on the Republican assault on your rights in the Courthouse. Medical malpractice litigation is only one of several categories in which the Republican Party is ready and ever-so-willing to restrict the rights of ordinary citizens to have their day in court. Failing that, there’s always the option to force litigation on those least able to afford it.
Your Body vs. Health Insurance Corporations
It’s time to remember that one of the very few specific proposals incorporated into the GOP version of health care insurance reform was “litigation reform.” One of the more recent comes from a Louisiana Congressman:
“Representative Steve Scalise, Republican of Louisiana, is one of several Republicans pushing for the proposed legislation, which would repeal the Affordable Care Act, place new restrictions on medical malpractice suits and provide more access to health savings accounts.” [LFC]
The standard line from Republicans is that malpractice litigation creates “runaway health care spending increases” because medical professionals order unnecessary tests, and if damages are limited fewer people will have any incentive to file law suits. However, we’ve known since 2009 that some physicians have ordered extra testing merely to increase their billings, [TNY] and after Texas legislature capped damages costs still hadn’t dropped in the area highlighted as the poster child for escalating health care costs (McAllen, TX). [Wire] A Florida law restricting medical malpractice suits was declared unconstitutional – after the Florida Supreme Court found that only the health insurance corporations benefited from the restraints. [Wire] And what was achieved by restraining the ability of ordinary citizens damaged by medical malpractice?
“Defensive medicine includes tests and procedures ordered by physicians principally to reduce perceived threats of medical malpractice liability. The practice is commonly assumed to increase health care costs. The results of studies of the costs of defensive medicine have been inconsistent. We found that estimated savings resulting from a 10 percent decline in medical malpractice premiums would be less than 1 percent of total medical care costs in every specialty. These savings are lower than most previous estimates, and they suggest that the presumed impact of tort reform on health care costs may be overstated.” [HA.org, National Cancer Inst] (emphasis added)
“May be overstated?” They are being overstated. And, they are being overstated in the pursuit of policies which are blatantly aligned with the interests of the health insurance corporations. Might any Nevadan oppose litigation seeking to hold accountable those responsible for the Hepatitis C outbreak from the Shadow Lane Clinic? [LVRJ/Sebelius] Would Floridians oppose the efforts of the family of Michelle McCall to hold a medical facility accountable for her death – the result of a case of preeclampsia being handled about as poorly as might be imagined in a nightmare. [FSC 2014 pdf]
Who in Missouri would castigate the efforts of the Schneider family in the wake of a stroke suffered by Jeffrey Schneider, an IT specialists with the Federal Reserve, which caused damage to his speech, the right side of his body, and loss of short term memory – and which was preventable had the physician paid attention to his own notes going back to 1996. [STLpd] Also left un-noted in the hyperbole about Runaway Costs from Irresponsible Juries – the fact that medical malpractice suits are extremely difficult to win.
The physicians and medical facilities usually win in most cases. In one study of 10,000 malpractice cases between 2002 and 2005, just a bit over half (55%) ended up in an actual lawsuit. Of that 55% more than half were dismissed by the court. When all the winnowing was final, less than 5% of the cases ended up being decided by a trial verdict – and 80% of the verdicts were in favor of the physicians. [reuters] For this, we are being asked by Representatives Heck, Scalise, and others, to voluntarily abrogate our rights as citizens to have our day in court.
Your Body vs. Gun Manufacturers and the NRA
On October 20, 2005 Congress passed a law protecting gun manufacturers and dealers from any liability. The NRA was positively elated. [NYT] The vote on S. 397 was 283-144 [roll call 534] The law is a gun manufacturer’s delight, it:
Prohibits a qualified civil liability action from being brought in any state or federal court against a manufacturer or seller of a firearm, ammunition, or a component of a firearm that has been shipped or transported in interstate or foreign commerce, or against a trade association of such manufacturers or sellers, for damages, punitive damages, injunctive or declaratory relief, abatement, restitution, fines, penalties, or other relief resulting from the criminal or unlawful misuse of a firearm. Requires pending actions to be dismissed. [Thomas]
Did we notice the damage might have resulted from “the criminal or unlawful misuse of a firearm?” P.L.109-92 protects gun manufacturers and dealers like no other sector of our economy. Did the safety fail? You have no case. Did the gun malfunction because of a preventable engineering flaw causing an injury or loss of life? You have no case. Did the Saturday Night Special shatter when fired? You have no case. If your complaint is with a firearms manufacturing corporation – you will not have your day in court.
There are also moves afoot to make being a consumer in this consumer economy a matter of a perverted form of survival of the fittest – or the wealthiest at least. In this regard the advocates of corporate interests want to remove the very agencies which provide administrative options to litigation. Instead of eliminating your day in court, the massive corporations would like very much to make you challenge them in court – if you dare.
Your Wallet vs. The Financial Institutions and Big Banks
Nothing so alarmed the bankers and other participants in the Great Mortgage Disaster of 2007-2008 as the creation of the Consumer Financial Protection Bureau. In fact, a small community bank in (where else?) Texas along with two conservative groups, were moved in 2012 to file a lawsuit saying the appointment of CFPB director Richard Cordray was unconstitutional and the agency was without “checks and balances.” The bankers also didn’t like the Financial Stability Oversight Council – the one that studies risk in the financial sector. [Reuters] In September 2012 some Republican state attorneys general were planning “non-cooperation” with the CFPB, following along the talking points made in the litigation. [Bloomberg] Nothing would please these folks more than the repeal of the Dodd-Frank Act, so that the wheels of the Wall Street Casino could be free to spin again.
And what subjects does the Consumer Financial Protection Bureau review? Student Loans, Manufactured Home financing, Bank Overdraft and other fees… As of June 2014 the CFPB reviewed (pdf) complaints in a variety of financial transaction categories – 34% concerned mortgages, 20% concerned debt collection activities, 14% were about credit cards, 12% about banking accounts and services, 3% were about consumer loans, 3% about student loans, and payday loans 1%. In other words, disputes about loans and other services common, ordinary, everyday, citizens of the U.S. might be involved in.
The legal system usually demands that all administrative options be finished before litigation is initiated. If there is no CFPB then there is one less way for disputes to be resolved at the administrative level – and the individual citizen (the one in the mobile home, in the student apartment, in the apartment house complex…) is left with no option except the expense of litigation. If the big banks had their way – you’d get your day in court – at your expense, and there would be no agency tasked with protecting you before you faced the battalion of legal forces arrayed against you.
Your Life vs. Manufacturing Interests
Calls for the abolition of the Consumer Product Safety Commission are nothing new, they’ve been around since at least 1980. [Sanders] The Libertarian Party is pleased to offer the following vision:
We oppose all so-called “consumer protection” legislation which infringes upon voluntary trade, and call for the abolition of the Consumer Product Safety Commission. We advocate the repeal of all laws banning or restricting the advertising of prices, products, or services. We specifically oppose laws requiring an individual to buy or use so-called “self-protection” equipment such as safety belts, air bags, or crash helmets.
Does someone “voluntarily” purchase a crib for an infant which has features potentially lethal for a baby? Who “voluntarily” buys a four wheeler where the components of the front gear case can fail causing a loss of control and crash hazard? Or a lawn mower in which the welding on the drive axle can fail, again causing a loss of control and crash hazard? Would you “voluntarily” purchase a bicycle helmet which fails in cold temperatures? Would you “voluntarily” buy a scarf which doesn’t meet federal flammability standards? Or a infant’s “hoodie” the drawstring of which creates a strangulation hazard? Or a riding lawn mower wherein the ignition fails to ground and tends to overheat and melt? [CPSC]
What is the response when the four-wheeler’s front gear case fails, the vehicle goes out of control, and the resulting crash causes injury or death? You should have had a degree in Mechanical Engineering before you purchased the rig? Or, is it if enough people are injured or die in crashes consumers won’t purchase the vehicle? How many have to die?
Again, without the Consumer Products Safety Commission not only is the likelihood of death or injury made more commonplace, but there is no administrative remedy intermediate to litigation. Worse still, the “pro-business” Republicans don’t even want the public to know which products have been the subjects of complaints. When the CPSC allowed the publication of its consumer database, the Republicans went off the deep end.
They said: “…that the database “wastes taxpayer money, confuses and misleads consumers, raises prices, kills jobs, and damages the reputations of safe and responsible manufacturers.” Testifying last month before the House Subcommittee on Commerce, Manufacturing, and Trade, Wayne Morris, a vice president for the Association of Home Appliance Manufacturers, complained, “It is wrong for the federal government to allow companies and their brands to be unfairly characterized, even slandered.” The National Association of Manufacturers said the database’s “credibility” and “usefulness to consumers” is “severely damaged.” In response to such criticism (and possibly also in response to Koch Industries, which showered an improbable $79,500 on his campaign), Rep. Mike Pompeo, R-Kansas, a Tea Party freshman, sponsored an amendment zeroing out funding for the database that cleared the House, 234-187. The CPSC database, Pompeo said, “will drive jobs overseas.” [Slate]
There’s “voluntarism” for us – not only should manufacturers be able to slap together unsafe products and sell them to American consumers, but those potential consumers should be prevented from finding out that other consumers have had problems with the products. We should remember that then Representative Dean Heller (R-NV) was one of the 234 House Republicans who voted in favor of Pompeo’s amendment cutting the funding for the CPSC database. [roll call 137]
The Ties That Bind
There is a common thread to all of this. In the instances of medical malpractice and gun manufacturing and sales, it is assumed by the Republicans that the consumer – the average American – must be prevented from challenging the major corporations who provide the goods and services; or at least their dismal chances of successful litigation must be further curtailed.
In the examples of the Consumer Financial Protection Bureau and the Consumer Product Safety Commission the notion that some administrative option prior to expensive litigation must be removed for the sake of the manufacturers and dealers. Only those with the financial wherewithal to take on interminable legal battles should be able to challenge the desire of manufacturers to cut corners (“increase shareholder value”) and thereby produce and distribute potentially lethal products.
Nowhere in any portion of these Republican challenges to consumer safety and security will we find any true concern for the average American consumer, patient, or victim. Unfortunately, for the GOP it’s all about the corporate Benjamins.