Reblog: Tort Reform Measures Increase Risk of Birth Injuries Such as Kernicterus

 

Recent statistics demonstrate that tort reform measures, such as those that lead to less testing of patients, will cause thousands more to die and many more to be severely injured.

BOSTON, MA, March 29, 2013 /24-7PressRelease/ — "The U.S. health system is the most expensive in the world, but comparative analyses consistently show that United States underperforms relative to other countries on most dimensions of performance."

That is the lead sentence of a recent comprehensive report by the non-partisan Commonwealth Fund called "Mirror, Mirror, on the Wall" – How the Performance of the U.S. Health Care System Compares Internationally – June 2010 (see link below). According to the report, the U.S. ranks dead last on patient safety; although our system is far more costly than any other system in the world. The authors point out that we have no national policies that promote quality improvement.

Instead, we see initiatives to reduce "defensive medicine" to allow doctors to do fewer tests to save costs, regardless of how many more lives are lost due to undiagnosed conditions. Recent statistics demonstrate that tort reform measures, such as those that lead to less testing of patients, will cause thousands more to die (beyond the nearly 100,000 that die each year from medical errors), and many more to be severely injured. We are justifiably outraged when auto makers reason that it is better to have a statistically significant number of people die than to correct safety problems. Since Americans don’t accept this reasoning and the disregard for human lives by auto makers, why would we accept it from our hospitals and the medical system, whose errors cause far more deaths than cars? There are at least two answers: (1) everyone drives cars, but not enough of us see ourselves or our children as vulnerable patients relying on safe care, and (2) the medical community keeps changing the topic to tort reform and defensive medicine each time someone mentions medical errors.

Source:  Tort Reform Measures Increase Risk of Birth Injuries Such as Kernicterus – World News Report.

REBLOG – STUDY: Texas Tort Reform Did Not Reduce Health Care Costs

In 2003, Texas voters approved Proposition 12, tort reform which capped medical malpractice payouts and made it more difficult for patients to sue hospitals. Republican politicians, led by Gov. Rick Perry (R), claimed that doctors were providing less services to patients because they feared getting sued. Republicans, joined by a “Yes on 12” campaign funded by the health insurance industry, promised that the amendment would lower health care costs and bring an influx of doctors to the state. Since 2003, Republicans nationwide have touted Texas as a model for tort reform.

Read More . . . 236 More Words

Source:  STUDY: Texas Tort Reform Did Not Reduce Health Care Costs.

This post is brought to you from The Brad Hendricks Law Firm as a service to provide legal and other information of public interest. If you have any questions about this or any other post, please contact our firm at (501) 221-0444 or (800) 603-5100 or email us. Our firm provides legal counsel in the areas of Personal Injury, Medical Malpractice, Social Security, Bankruptcy, Business Law,Employment Law, and Family Law, among others.

A Comment about the American Health Care System

Tuesday, March 6, 9:19 AM – by Ezra Klein, The Washington Post

On Sunday, I reported on new data from the International Federation of Health Plans showing that health-care prices are far higher in the United States than anywhere else. An MRI, for instance, costs $1,080 here, but only $280 in France. The disparity is explained, I said, by the fact that in other countries, the government sets the price and providers take it or leave it.

But some readers thought I missed the boat on this one. So let’s go through some of the objections.

Continue Reading . . . .

Ezra Klein is the editor of Wonkblog and a columnist at the Washington Post, as well as a contributor to MSNBC and Bloomberg. His work focuses on domestic and economic policymaking, as well as the political system.

Her Name is Stella . . . .

by Brad Hendricks and Caroline C. Lewis

Many people believe that some woman got millions and millions of dollars for spilling hot coffee on herself.

That may sound good in a political ad against our legal system, but it simply is not true.

That never happened.

It is a lie.

How would you feel if you knew that you were lied to in order to further a political agenda?  Would you feel betrayed?

Duped?

Furious?

You are not alone.

Unfortunately, this case has become an urban myth deceitfully misrepresented in order to turn the general public against the legal system.  It is the poster child often used to try to deny justice to those who need it most.  The true story is one that cannot be told as a sound byte in a political ad.

Read on if you are interested in the truth, the whole truth, and nothing but the truth about the McDonald’s Hot Coffee Case that stands alone as probably one of the most misrepresented cases in modern legal history.

Some call it a frivolous lawsuit.

Others essentially blame the woman in question for the injuries she sustained, contending that the case represents nothing more than a prime example of human greed when presented with an opportunity to sue the “deep pockets” of McDonald’s.

Still others actually criticize the woman’s attorneys, holding them out as willing to file any case, no matter how frivolous, in order to make money.  Mainly, though, it has been used by various corporate entities in support of legislation that would deprive you or a loved one of the constitutional right to have a jury of your peers determine the extent of your injuries and award damages accordingly.

The lady who had to bring this lawsuit is not "some woman."  Her name is Stella Liebeck, and these are the facts behind the lawsuit that so many people wrongly rely on to argue against the fundamental right that we all have to our day in court.

On February 27, 1992, Stella Liebeck, then 79-years-old, went to a local McDonald’s in Albuquerque, New Mexico, with her grandson, Chris.  Contrary to popular belief, when Stella and her grandson ordered that fateful cup of 49¢ coffee from the drive-thru menu, she was not attempting to multitask by driving while adding cream and sugar to her coffee.  Instead, her grandson was in the driver’s seat.  The car wasn’t moving, either.  Chris had parked the car to give his grandmother the chance to flavor her coffee.  Stella placed the 180-190°F cup of coffee between her knees, and removed the far side of the lid towards her.  Despite her precautions, the coffee spilled directly into her lap.

180-190°F.

That is not hot.  That is scalding.  Water boils at 212°F.

At the temperature the coffee was served to Stella, McDonald’s own quality assurance manager admitted, it is not fit for human consumption.  Despite the knowledge, McDonald’s refused to change its policy and continued to serve coffee that it knew would cause injuries to its customers as served.

Thus, when Stella spilled that cup of coffee into her lap, the injuries that McDonald’s knew were likely to occur did, as the cotton sweatpants she was wearing immediately absorbed the scalding liquid and held it against Stella’s skin.  A beverage that was served at temperatures that could cause third-degree burns in as little as two seconds was held by her clothing, trapped, for more than 90 seconds.

By the time Stella arrived at the hospital, her medical providers determined that she had, in fact, sustained third-degree burns to 6% of her skin, with burns of lesser degrees extending over 16% of her body, including her thighs, buttocks, her genitalia, and groin region.  Over the next week, Stella remained in the hospital.  She required excruciatingly painful skin grafts to try to repair the damage that had been done.  She lost 20 pounds and dropped to a low of 83 pounds.  At one point, her family was not sure she would even survive the incident.

That was merely the beginning, however.  More than two years of medical treatment was required after Stella was released from the hospital.

What might shock you is that she did not try to settle for millions and millions of dollars in some attempt to extort money from McDonald’s.  She tried to settle with McDonald’s for $20,000, which included medical expenses (and was far less than the $200,000 she was ultimately awarded for her medical expenses, injuries, and scarring), and McDonald’s refused.  At that point, Stella hired Reed Morgan, a Houston attorney who offered to settle the case for $90,000 for Stella’s medical expenses and pain and suffering.  McDonald’s, at that point, countered with an $800 offer.

In the face of such a ludicrous offer, Stella sued, claiming that the coffee was unreasonably dangerous and was distributed with inadequate warnings.  Punitive damages were sought, as well, based on allegations that McDonald’s had shown conscious indifference for its customers and their safety.

What did the facts show during the August 8-17, 1994, trial that convinced a jury to turn on McDonald’s and award Stella damages, when they were initially irritated that they were being forced to hear what they believed was a supreme waste of their time?

First, McDonald’s required its franchisees to serve coffee between 180-190°F, when many of its competitors served coffee at temperatures no higher than 140°F.

Second, not only was McDonald’s coffee much hotter than other establishments’ coffee, it was hot enough to cause third-degree burns of such a severe nature that excruciatingly painful skin grafts might be warranted, and that it could do so in mere seconds.  And McDonald’s knew that it was serving coffee that could inflict this type of damage.  In fact, between 1982 and 1992, McDonald’s had received over 700 reports of burns attributed to its coffee.  Even worse, McDonald’s representatives tried to hide the existence of these previous claims before they were finally forced to acknowledge their existence.

When McDonald’s finally did acknowledge the history of complaints, Christopher Appleton, the quality control manager for McDonald’s, admitted that McDonald’s coffee would burn the mouth and throat if consumed when served.  Simply put, he testified, if a customer purchased a cup of coffee and drank it immediately, without waiting for it to cool, it would scald his or her mouth, throat, and esophagus. 

So why did McDonald’s continue to serve a product it knew could seriously injure its customers?

According to the testimony presented during the trial, McDonald’s served its coffee so hot based on recommendations from the coffee industry that higher temperatures are necessary to extract the “full coffee flavor” during the brewing process.  Thus, McDonald’s brewed its coffee between 195 to 205 degrees and held it at 180 to 190 degrees because, McDonald’s concluded, taste is of primary importance to its customers.  Besides, McDonald’s customers want “steamy hot” coffee and expect to get it that way.  Never mind the fact that McDonald’s customers had no way of knowing that third-degree burns could result from the coffee, or the fact that, by McDonald’s own testimony, the statement on the side of the cup was not a “warning.”  It was just a “reminder” that did nothing to notify the customer of the dangers inherent in drinking the coffee at the temperature at which McDonald’s served.

Weakly, McDonald’s testified that its customers purchased coffee intending to only consume the beverage once the customer reached his or her final destination.  Even this testimony, however, was contradicted by the company’s own research that indicated that customers intended to consume their coffee immediately after their purchase while they were still driving.  Ultimately, McDonald’s placed a product it knew to be unfit for human consumption into the hands of people who purchased the product for immediate consumption, and severe injuries occurred.  The risk of injury, including the severity of Stella’s injuries, could have been avoided by McDonald’s.  McDonald’s knew the risk of injury existed, but it just did not care.

McDonald’s justified its disregard of the risks to the public by arguing that any food at temperatures exceeding 130°F presented a burn risk.  McDonald had previously spent more than $500,000 settling prior claims related to its coffee.  Despite the complaints and the injuries sustained by McDonald’s customers, Mr. Appleton testified, McDonald’s had more pressing things to worry about than its coffee.

McDonald’s placed great emphasis on the fact that 130°F food could cause third degree burns, but in reality, the difference is that the lower the temperature, the more time a customer has to avoid the injury.  When the scalding coffee poured into her lap, the damage that ultimately required skin grafts and permanently injured Stella Liebeck was done in less than 3 seconds.  If the coffee had been served at 160°F, she would have had nearly 20 seconds to avoid the third degree burns that she sustained.  And that is still higher than the 130°F temperature that McDonald’s admitted presents a burn risk for other food items on its menu. 

McDonald’s unilaterally decided that its customers wanted hot coffee (never mind the fact that they were unaware of the severity of injuries that might result), and that their desire for hot coffee outweighed the injuries sustained by some of its customers.  The 700 people who were injured were absolutely inconsequential when McDonald’s considered the billions and billions of dollars it could make from serving excessively hot coffee.

The real insult in this case is that McDonald’s tried to place all the blame on Stella Liebeck.  First, McDonald’s argued that Stella Liebeck should not have placed the coffee cub between her knees.  Then, McDonald’s suggested that Stella should have simply removed her clothing promptly after the spill, ignoring the fact that she was sitting in the parking lot at a public location.  Perhaps most horrifying, though, was the suggestion by McDonald’s that Stella’s age was to blame for the severity of her burns.  In other words, her older skin made her more vulnerable to serious burns.   It was her fault that she didn’t move fast enough, didn’t strip when she should, and that she was so old that her skin couldn’t withstand the heat. 

There was no accountability on the part of McDonald’s.  In the face of billions of cups of coffee sold each year, earning McDonald’s untold sums of money, Stella Liebeck did not matter.  People like Stella Liebeck, according to McDonald’s human factors engineer, Dr. P. Robert Knoff, are “statistically insignificant” when McDonald’s considers its bottom line.

And here is how this case represents how justice was truly served in Stella’s Case:

When the jury was presented with the evidence, the jury awarded Stella $200,000 in compensatory damages; however, because the jury apportioned fault 80%-20% (finding Stella 20% at fault for her injuries), the award was reduced to $160,000.  The jury also awarded Stella $2.7 million in punitive damages based on its determination that McDonald’s engaged in conduct that was willful, reckless, malicious, or wanton.  This amount was based on McDonald’s revenues from coffee sales for two days.

Instead of a legislature arbitrarily reducing the amount awarded with no regard for the facts of any given case, though, as is one of the intended results of tort deform, the legal principle of remittitur was properly applied by the judge to the punitive damages award.  “Remittitur” is a ruling by a court that reduces an award that either exceeds the amount sought by a party, or because the award is “otherwise considered excessive.”

In applying the principle of “remittitur,” the judge in Stella’s case reduced the award of punitive damages from $2.7 million to $480,000, or three times the compensatory damage award.  The parties ultimately settled the case for an undisclosed amount believed to be less than $600,000, out of which Stella’s medical bills had to be paid—a far cry from the millions that so many claim she received when decrying Stella’s case as the poster child of frivolous lawsuits pursued by greedy lawyers out to make a buck, regardless of the merits of the lawsuits

The mention of “frivolous lawsuit” raises another issue.  In the legal system, what so many who throw that term about so freely in order to stir the public into a frenzy advocating tort deform is what actually happens to the frivolous lawsuit:  the claims may be dismissed by the court and the attorney filing such claims may be sanctioned.  However, there is no mechanism that will simply prevent one from filing a lawsuit.  It’s one of the fundamental rights we have in this country that is guaranteed in our Constitution, and which has been vigorously defended throughout the history of our nation.

Truly, the judge is not supposed to simply evaluate the facts of a case and determine that it is frivolous if there is some chance that reasonable minds could conclude that the facts do actually have some merit.  If one looks at the debate that has raged over this one case since it was handed down in 1994, it is easy to see that reasonable minds do, in fact, differ as to the merits of the lawsuit.  When a lawsuit is truly frivolous, however, it is a pretty universally accepted conclusion that there is no merit at all to the claims presented before a court.  There might be some minor disagreement, but such cases do not spark debates that span nearly 20 years and give rise to symbols in the arena of legal discussion that endure, even among those who are not member of the legal community.

Finally, justice was served here because it forced McDonald’s to stop “passing the buck” to its customers.  Clearly, McDonald’s did not consider the 700 people who had been injured previously to be significant, but the injuries themselves were undoubtedly significant to the customer.  Should a corporation be allowed to tell you that you are insignificant and that if you are injured by something the company does, knowing the potential harm that could result, it is just your problem??

Take out the jury system of determining the value of damages, the legal system’s checks that have been implemented to ensure that awards are not excessive, and the due process that is fundamentally guaranteed by our Constitution, and that is basically what occurs—the people least able to bear the cost are forced to do so by those in a much better position to protect the public.

That, no matter how you look at it, is not justice.

Related articles by Zemanta

• "Hot Coffee" Movie Will Reveal the Reality Behind Famous McDonald’s Case (zifflaw.com)
• A New Tort-Reform Talking Point: The Chicken Sandwich Case (blogs.wsj.com)

ARTICLE: I’m Not Denny Crane. IMPACT & Membership by Tré Kitchens

by Tré Kitchens, President-Elect of the Arkansas Trial Lawyers Association

* Originally published in the ATLA Docket, Winter 2004.  Also available on the Brad Hendricks Law Firm website in the Articles Section.

I only know of three lawyers who claim to have never lost a case: a fictional character from Boston Legal, Denny Crane; Gerry Spence who claims to have not lost a case since Nixon was in office; and a young Plaintiff’s lawyer who will remain nameless and was half drunk when she made the claim.

I’ve lost.  So have you if you’ve been in the business very long at all.  It happens in our professional and personal lives.  As trial lawyers, we find ourselves in the unique situation that when we lose we are not the ones who pay the real price.  We lose money, time, pride and move onto the next case and the next client.  Our clients lose the ability to hold someone responsible for the loss of a loved one, the ability to pay for medical treatment, the ability to care for their family, their children in custody cases, and at times their very freedom.

Who are we fighting?  Primarily we fight bigger, better financed opponents who aren’t burdened with the emotional commitment we have to our clients.  I have never talked to an insurance defense lawyer who worried about the “consequences” to Allstate or State Farm if they lose a case.  Insurance companies and the “State” don’t care that we are fighting out of our weight class and generally are willing to do whatever it takes to win.

So why do we do it?  Why do we fight the fight?  I have friends who claim it’s because they didn’t have the grades in college to get them into medical school.  However, I believe for most of us, our motivation is more than that of taking a “lesser path,” if you could call the agony and ecstasy of being a trial lawyer a lesser path.  We do this for the same reason Muhammad Ali fought George Foreman in 1974.  Foreman was bigger, stronger, younger.  Many worried for Ali’s safety in the fight.  The only person who really believed Ali would win was Ali.  That powerful belief came true.  We do the same every time we take on the establishment!  We believe that the individual has equal footing to the giant corporation.  We believe that just because the State claims someone did something they still have to prove it.  And, just often enough to keep us coming back for more, our belief becomes reality, and the little guy actually does win.

Most times the tyranny of the urgent prevents us from remembering the higher ideals of our profession.  The bills, the family, the deadlines can cause us to put the real reason we do this job on the upper shelf.  ATLA pulls those higher ideals down and dusts them off.  We need to be reminded that while we do this job for a living, by doing our job we allow our clients to continue living.

Imagine a 9-5 job with no purpose.  Selling widgets for some company or pushing paper and finishing TPS reports.  Now be thankful that your job matters.  You matter.  Your clients simply would be lost without you.  That is the reality of our world. 

Now realize that the one organization in this State that fights for your continued ability to take care of your clients is ATLA Tort reform, limits on attorney’s fees, the loss of the jury are all very real threats to our profession and our clients.  Next session the legislature will address some if not all of these issues.  Who will help you in this fight?  ATLA.  Now get out your checkbook and help ATLA fight the political fight.

Why?  Why spend my money for IMPACT.  I mean, it seems ATLA always has its hand out.  IMPACT is for the candidates, that’s all.  IMPACT funds go to support legislators who believe what we belief.  With term limits we have to educate each new crop of Representatives and Senators that come to Little Rock.  IMPACT funds help ensure that we elect lawmakers who will listen to our issues and aren’t beholden to the corporations and the establishment.

Help us.  Help yourself.  And most importantly help your clients.  Foreman hit Ali hard, our opponents hit harder.

ARTICLE: Ethics & Image (Spring 2005)

By Brad Hendricks, Esquire, a former President of the Arkansas Trial Lawyers Association

* Originally published in the ATLA Docket, Spring 2005.  Also available on the Brad Hendricks Law Firm website in the Articles Section.

The cliché "time flies" has seldom seemed more self-evident. Since this is my last contribution to The Docket as ATLA’s president, it’s worthwhile to reflect on where we have been, what we have done, and perhaps offer some observations on where we need to go from here.

It is important to note that a president of this organization is part of a continuum. He or she is only as effective as the prior leadership and existing composition of the executive committee and board will allow. In that regard, I’ve been blessed.

During my term as President-Elect, I had the good fortune to serve under President Q. Byrum Hurst. Few people outside the executive committee, the staff and the board fully appreciate the extraordinary job that he did as president. When it appeared that the ATLA ship was sinking, Byrum rolled up his sleeves and went to work, and motivated others to do likewise. When Byrum handed the baton to me last April, the shoes to be filled were very big indeed.

Because of the hard work of the executive committee and the board working in conjunction with Carol Utley and her staff, it is now safe to say that ATLA has been transformed from an organization struggling to rediscover its identity, into a highly effective and disciplined machine. Just in case there is any remaining doubt on that subject, let’s review what has happened since the nightmarish legislative session of 2003.

ATLA has had a seemingly unattainable goal for many years of reaching a membership level of 1,000. We now have over 1,060 members, and our ranks are continuing to swell.

We have contributed unprecedented funds to political candidates who are committed to protecting our system of justice. Of the seventeen legislative races which ATLA targeted, fifteen candidates supported by ATLA emerged victorious.

Our lobbying team has grown from two people to five, and their effectiveness has been nothing short of extraordinary.

We have implemented the Golden Gavel program, which ensures that funds reach our chosen political candidates quickly when those candidates are in critical need of campaign funds.

Thanks to the devotion and hard work of Chip Welch and others, we mounted a broad constitutional challenge to Act 649 of 2003. While that broad challenge was not successful, we have the necessary briefs prepared for each ATLA member who has the opportunity’ to challenge any aspect of that ridiculous excuse for a law.

We have implemented "Action Alerts" so that our membership can assist with communicating with legislators on short notice.

Our website has been transformed into a useful tool for our membership, and provides important information to the public to help combat tort deform. It also provides important weekly bulletins on events at the Capitol which are of interest to our membership.

We have established law student membership programs at both law schools, and student participation has grown from only ten student members two years ago to over one hundred today.

We learned that many law students aspire to be plaintiff’s lawyers, and were frustrated by the fact that only defense firms recruited at the law schools. In response, we established the law student employment program. This provides a benefit to our ATLA membership as well as to the law students.

We have doubled the size of our ATLA staff, and the results have been spectacular. In addition to Carol Utley and Gwen Hathcock, we added Randall Freeman as Membership Director, Karen Smith as Associate Director, and Mathew Hass as Director of Politics and Governmental Relations. Each has made important contributions to making ATLA a more effective organization.

In addition to our expanded lobbying team of Henry Hodges, Carol Utley, Allen Gordon, Becky Lynn and Mathew Hass, we have established open lines of communication and cooperation with private lobbyists, most notably Bob Edwards and Bill Fitch. We are indebted to Wilkes and McHugh and Hare-Wynn for their strong contributions and cooperation. We have a number of ATLA members who make the necessary sacrifices to make a difference in our political battles. That list has thankfully grown too long for this column, but Joey McCutchen exemplifies this new breed of ATLA activists.

We have increased the security of our communications across the listserv, and changed the criteria for membership in ATLA by updating our constitution and by-laws. We implemented the IMPACT listserv so that our politically active members could communicate with one another more effectively. Board member Chris Heil has done a great job with the unenviable task of policing the listserv through the new listserv committee.

We have revamped our public relations committee. Under the leadership of Eric Wewers, this committee has developed a system for getting our message out to the public when the legislature is not in session, and for communicating quickly and efficiently with legislators during a session.

Contributions to IMPACT, our political arm, have increased by 66%. This has allowed ATLA contributions to political candidates to be more meaningful and helpful, and has allowed us to do more to reward our friends and punish our enemies.

Our membership drive and committee participation is up by 50%. Our members are getting involved in record numbers, and consequently much more is getting done at every level.

We have implemented one-hour telephone conferences for CLE credit so that our busy members can obtain CLE credit without leaving their offices.

Our "key contact" program has been expanded to increase the level of communication between our members and their elected representatives. We are also extending the program to establish personal relationships with members of the media so that we have a mechanism through which to distribute hard data to expose the lies of our opponents.

Our young lawyers division is more active than at any time in the past. Tre’ Kitchens and others have devoted whatever time was necessary to increase the participation and involvement of our younger members. These are our leaders of the future, and they will improve upon the progress which has been made.

Through the leadership of David Williams, our fundraising efforts and results have been unprecedented. Through David’s continuing leadership of the legislation committee, we are pursuing the most ambitious legislative agenda in ATLA’s history.

We have planned an annual convention like no other. As always it will be in Eureka Springs in late April. In addition to an outstanding CLE program our keynote speaker is Robert F. Kennedy, Jr. If you haven’t yet made plans to attend, I urge you to do so. This is the time when we analyze the previous session and begin our plans for the next session in a relaxed environment. If you haven’t heard Bobby Kennedy give a speech, you are in for a real treat. In the opinions of those who would know, he is the one member of that fabled family who most embodies the qualities of his father and uncle. Moreover, he’s a really nice guy and just plain fun to be around. I hope you will join us.

Our most important accomplishment has yet to be realized, but as this is written, it appears to be within our grasp. As everyone knows by now, the tort deformers are never satisfied, and will never be satisfied. The grave danger as we entered the session of 2005 was that we would face a "snowball effect" from the last session which would result in legislation to regulate your contingency fee contracts, and to "cap" compensatory damages. The session has only just started as I write this article, but it appears that if and when such legislation is introduced, it will be defeated. There is no single accomplishment more important than this. The critical task at hand as we prepared for this session was to stem the tide of tort deform. Perhaps I’ll be proven wrong and will have to eat these words, but I’m cautiously optimistic that we will succeed. If we do succeed, each and every contribution of time and money by each and every member will be the reason for that success.

So, where do we need to go from here? As I leave this office, I’m reminded that this fight is far from over. I urge you to be skeptical, perhaps even distrustful. I urge you to be prepared for the worst. BEWARE! Our enemies will not disappear. Many of the friends we have in the legislature now will be gone in 2007. The brass-knuckled nursing home murderers will be a distant memory. It doesn’t take a rocket scientist to figure out that the tort deformers will be targeting the session of 2007 for their next nefarious assault on our clients and on our system of justice. The phenomenal electoral success we had at the state level simply MUST continue unabated. Only by electing brave and thoughtful legislators can we defeat the powerful special interests which fuel tort deform.

You asked for change in ATLA, and the leadership which you elected to effectuate that change has done their level best to provide it. John Belew will do a great job as your president in the coming year, laying the foundation for Clark Mason’s leadership during the session of 2007. Unlike in the past, preparing for a session is now a two year endeavor. Whether John and Clark will be successful is up to us. They can’t do it alone. If we are successful in the session of 2005, we cannot spend one minute patting ourselves on the back. There is much work yet to be done.

In my judgment, we need to be prepared to fight fire with fire. In Florida, the tort deformers used ballot initiatives for what they couldn’t accomplish at the legislature. We must be prepared to get tough against this type of assault. If the medical profession wants to pursue a ballot initiative to regulate our right to enter into valid, arms-length contracts, we need to have an initiative ready which will limit what doctors can charge for their services, and to abolish the peer review privilege. If insurance companies want a ballot initiative to "cap" compensatory damages, we need an initiative of our own for stringent, consumer oriented regulation of the insurance industry. In short, if our opponents wish to live and let live, that’s fine. But if they want to get rough, we need to show them the true meaning of the word.

To each and every member of this organization, I wish to express my most sincere and heartfelt appreciation for giving me the opportunity to lead this organization at such a critical time. It’s humbling in the extreme, and I hope I’ve served you well. I love this organization and what it represents, and will be forever proud to have been a part of it.

ARTICLE: IMPACT and Membership: ATLA 2003-04 (Winter 2004)

By Brad Hendricks, Esquire, a former President of the Arkansas Trial Lawyers Association

* Originally published in the ATLA Docket, Winter 2004.  Also available on the Brad Hendricks Law Firm website in the Articles Section.

Just in case any of our members have not yet heard the news concerning how our enemies intend to further destroy the civil justice system, it is worthwhile to repeat what is public knowledge: TORT REFORM ADVOCATES WILL INTRODUCE LEGISLATION IN THE NEXT LEGISLATIVE SESSION TO LIMIT ATTORNEYS’ FEES, RESTRICT CLASS ACTION LEGISLATION, AND CAP "NON-ECONOMIC" DAMAGES IN CIVIL CASES.

As ludicrous as this may seem to anyone who understands the first thing about our civil justice system, the effort to accomplish it is coming. The information was reported publicly following a gathering of tort reformers in Little Rock which included Rep. Marvin Park, R-Greenbrier, Rep. Danny Ferguson, D-Forrest City, and Sen. Bob Johnson, D-Morrilton. This is the trio which brought us Act 649, the worst bill ever to pass the Arkansas Legislature. Also in attendance in the "panel discussion" were Dr. John Wilson, chairman of the Arkansas Medical Society, Ron Russell, president and CEO of the Arkansas State Chamber of Commerce and Nick Thompson, the lawyer who does the bidding of the tort reformers, and who "hosted" this little gathering.

The wool was pulled over the eyes of our legislators in Arkansas during the last session. They were told that Act 649 would reduce medical malpractice insurance premiums, and cause insurance companies to return to Arkansas, despite the fact that there is no reliable evidence to support that contention. Incidentally, ask your doctor if his or her malpractice premiums have gone down since the passage of Act 649. Try to name an insurance company which has come into Arkansas to write new policies. It has not happened, and it will not happen, at least not as a result of the passage of so called tort reform. The proof is in California, which passed draconian tort reform in an effort to reduce premiums, only to see malpractice rates continue to sky-rocket for eight years until they passed insurance reform. Insurance reform is the only thing which will cause malpractice rates to fall. To their political credit, insurance companies have done a masterful job of side-stepping the wrath of the medical community by directing their anger at attorneys. Meanwhile, their rates continue to rise.

An interesting question is why the chairman of the Arkansas Medical Society would be interested in limiting class action cases. Even more interesting is why any of these individuals would be interested in limiting class action cases, when their stated purpose for "tort reform" was to reduce malpractice premiums and cause insurance companies which write these policies to do more business in Arkansas. Since when did a class action cause have any impact on the issues which they claim motivated their actions in the last legislative session? Since when does the right of an attorney to enter into valid contracts have any impact on insurance rates? It is nothing more than THE BIG LIE, the efficacy of which was proven in Nazi Germany. If the lie is repeated often enough, it is perceived as truth.

The regulation of attorney’s fees by capping contingency fees does not affect only attorneys who handle primarily personal injury cases. It would have a monstrous impact on virtually every general practitioner in Arkansas. These tort reformers want to tell us what we can agree to with our clients in honest, straightforward, arms-length negotiations. Does that not make you angry? Our anger on that point aside, what they really want is to put us out of business. Make no mistake about it.

The "tort reformers" have stated publicly that they want to take tort reform to "the next level." But that was not what their lobbyists told our legislators in the last session. What was heard from them again and again during the last session was that Act 649 was all that they wanted. Of course, that was false. Our legislators were duped into passing a bill which severely damaged our civil justice system. No other legislature in Arkansas history took action designed to weaken the civil justice system, and it was for very good reasons that no such action was ever taken.

So-called tort "reformers" (it’s galling to have to use that word in relation to what these people are doing), have also fixed their sights on the Judiciary in our beloved Arkansas. They are mortified at the prospect of an independent Judiciary reviewing their handiwork from the last session. They attempted to pass a law allowing for the recall of judges, somewhat similar to the fiasco which we just witnessed in California with respect to their Governor. It is my understanding that there was no effort to allow for the recall of legislators. But if a judge dared to exercise the independence which our system demands, she or he could have endured a messy recall election at best, and potentially could have been removed from office.

We have watched with great interest the actions of the so-called tort reformers in other states. They will attempt to remove judges from office if those judges do not march in lock-step with them. They will pass recall legislation. They will promote constitutional amendments if their bills are clearly unconstitutional. In short, they will stop at nothing.

Obviously, a tort reformer has never represented a burn victim. Dax Cowart, an attorney in East Texas, wrote a book about his experience after he suffered third degree burns over 90% of his body. The pain was so incredibly excruciating during the skin-graft treatment that he begged to be allowed to die. Although he leads a productive life, he continues to advocate for the right to be relieved of such suffering. He still believes that he would have been better served if he could have been allowed to die. The rest of us don’t know what that kind of pain is like. I had the pleasure of having dinner with Dax some years ago, and I wondered if he would ever get used to the stares he had to tolerate wherever he goes. A former football player and All-American boy, his appearance is shocking to the average person. His injuries and resulting disfigurement were caused by a gas line which exploded due to negligence. These so-called "reformers" would have our Legislature "cap" the compensation which a jury could award to Dax Cowart for his suffering. "One size fits all" is not a concept which fits at all in our civil justice system. It is utter nonsense. Yet that is precisely what the enemies of the civil justice system are gearing up to accomplish.

At the gathering described above, Mr. Thompson made reference to us by stating: "We have awakened a sleeping giant." I dare say that he was correct on that one point. We are actively recruiting and supporting candidates in the same manner that our enemies are doing so. We have formed the "Committee to Protect the Constitution. "We are reaching out to our membership and asking them to be as generous with their contributions as possible. Younger attorneys are getting active in ATLA to an unprecedented degree, and are assuming positions of increased leadership in our organization. We have hired another "heavyweight" in former Senator Allen Gordon, and a full-time Governmental Affairs Director. We are making changes in the requirements for membership in ATLA and are increasing the security of our sensitive communications among one another. Your Executive Committee is working feverishly to respond to the suggestions and demands of the membership.

We have reached the point where the foundation for constructive change has been laid. Now, it is up to all of us. We have to ask ourselves whether we want to contribute heavily to ATLA with our money and with our time, or whether we would prefer to see our right to enter into valid contracts eliminated, caps on compensation for suffering such as that of Dax Cowart and other citizens similarly devastated by negligence, and protections for big business by making it more difficult to bring class action cases when wrong-doers steal a little from a lot of people. We must unite, we must support candidates who really understand the civil justice system, and we must outwork our enemies.

We have a common interest and a common goal, and we have to put aside any differences among us and join hands to beat back the evil which confronts us. Please, join us in this fight. We need you.

ARTICLE: Ethics & Image (Fall 2004)

By Brad Hendricks, Esquire, a former President of the Arkansas Trial Lawyers Association

* Originally published in the ATLA Docket, Fall 2004.  Also available on the Brad Hendricks Law Firm website in the Articles Section.

This is the last opportunity to communicate with our membership through this forum prior to the legislative session beginning in January. Rarely in the history of our organization has so much been at stake. The vast majority of our members want to know what they can do to help, and there is much that all of us can do.

Obviously, each and every one of us can contribute financially to our cause. If every member of our organization contributed only $250, it would produce a quarter of a million dollars to finance our efforts. That alone could be the difference between success and failure. Failure during this session is simply not an option.

There are other things which every member can do. We can combat the derogatory and false image of us which our enemies continue to promote. Our Public Relations Committee, chaired by Eric Wewers, is doing an outstanding job on that front through a concentrated effort to get the facts before the public and to discredit the half-truths and blatant lies used by our opponents. Chip Welch did an outstanding job of discrediting a nationally known tort deformer during a forum at the law school in Little Rock. But there is also much that our individual members can do to contribute, and we need each and every contribution.

Get the word out about who we really are. We are proud to serve society by resolving its disputes, thus holding the fabric of the society together. We are proud to protect the weak from the tyranny of the powerful. We are proud to be the instrument of accountability for all. That message must go out, and it’s up to us to get that message out through our daily activities, conversations and conduct.

Consider the cumulative effect if every attorney confronted a person who tells a "lawyer joke" with the truth about attorneys in terms of who we are and what we do. Some of us are old enough to remember when racist jokes were met with laughter instead of the derision which greets them today. It’s no different now with respect to so-called "lawyer jokes". In each case the humor is predicated upon prejudice and hatred. We have to stand up for ourselves, tell the truth, and set the record straight.

Each member of ATLA should develop a personal relationship with their elected officials. Our professional lobbying efforts are important, but they pale in comparison to what our individual members can do. The membership of this organization possesses the power to convey the truth to elected officials, thus discrediting the dirty slogans and outright lies of our enemies. Take your state representative or state senator out to lunch or to play golf. Get to know them. Let them see who you are and what you are about. Convey to them the real-life stories of individual Arkansans who have already been harmed by tort deform. Demonstrate to them that we took a wrong turn during the session of 2003. It’s impossible for our enemies to demonize us when our elected officials can see for themselves that we are in fact "the good guys."

When someone says something derisive about trial lawyers, ask them if they know any trial lawyers. When they say yes, ask them if those attorneys fit the image which they have just described. Since the answer is always no, remind them that their image of trial lawyers conflicts with their personal experience.

When bills are introduced which are designed to harm your clients and harm the legal profession, call your elected representatives on the telephone. Send letters, faxes and emails to legislators expressing your opposition to the notion of protecting the most powerful at the expense of those least able to protect themselves.  In short, act on your convictions. Take time out of your busy schedule to appear at the Capitol during the session to talk with your legislators one-on-one. If we participate in this process at the individual level by getting to know our legislators and by giving them the opportunity to get to know us, we can and will reverse the mistake that our Legislature made in 2003.

We need not and will not use the gutter tactics of our opponents. Tort deform was passed in Arkansas by the use of deception. Repeal of that legislation requires only that we provide legislators with facts as opposed to the false statements and dirty tactics used by our opponents. Our legislators were told that doctors are fleeing the state because of lawsuits. That was false. Our legislators were told that deforming tort law would result in decreased medical malpractice insurance premiums. That was false, and those who made that contention knew it was false. Our legislators were told that there is a glut of so-called frivolous lawsuits clogging the courts. That was false. Those bent on destroying the role of the American jury told legislators in the last session that they would not seek additional manipulation of the legal system if they could just pass Act 649. That was false, and once again those who promoted this special interest legislation knew that it was false. Our legislators must be reminded of these facts so that they can see for themselves who is really on the right side of this issue.

I’m reminded of an afternoon during high school when I was driving to a pre-arranged fistfight against a thug who was known to resort to any form of dirty tactic to win. My best friend handed me a small club and suggested that I put it under my shirt "just in case." I handed it back and told him that I could not promise that I would win, but that I would promise him a good fight. All that we need in the coming session is a legion of proud trial lawyers who are dedicated to fighting the good fight. Will you join us?

ARTICLE: Ethics & Image (Summer 2004)

By Brad Hendricks, Esquire, a former President of the Arkansas Trial Lawyers Association

* Originally published in the ATLA Docket, Summer 2004.  Also available on the Brad Hendricks Law Firm website in the Articles Section.

As everyone probably knows by now, the Arkansas Trial Lawyers Association recently joined with the Arkansas AFL-CIO and other plaintiffs in the filing of a constitutional challenge to Act 649. The reaction of Ron Russell, Head-dog at the Arkansas Chamber of Commerce, was to refer to the effort as being motivated by "greedy trial lawyers." His statement was not true, as Chip Welch pointed out much more diplomatically than many of us could have managed. More importantly, Mr. Russell did what all tort deformers do, which is to avoid the real issues.

Tort deformers have lied to the people of Arkansas by telling them that tort deform will bring down malpractice rates. There is no valid empirical evidence to support that claim. They have lied to our elected representatives by making this same claim. They also lied to our elected representatives when they lobbied so intensively for Act 649 by claiming that this was all the tort deform that they wanted. We know for a fact that either those statements were lies, or the published reports of their stated agenda for additional tort deform were lies. Either way, the conclusion is inescapable.

Why do they lie? They are driven by the very greed which they attribute to trial lawyers via their tired, worn out "greedy lawyer" mantra. They can’t win in the arena of the truthful exchange of ideas, so they resort to the use of dirty slogans. The time is long overdue to call them out on their lies and dirty tactics.

Let’s speak the truth. Attorneys are motivated in part by self-interest, just as Mr. Russell and all human beings are motivated in part by self-interest. But that is not what drives attorneys. What drives us is our commitment to the oath we took to protect and defend the constitution. We are motivated by the clients we talk with everyday who are harmed by this vicious, special interest legislation. We are motivated by the fact that it was attorneys who stopped the robber barons of the past, and it will be attorneys who stop the unholy alliance between big business, the medical industry and the insurance industry. The only thing which stands in the way of the most powerful corporations is the American jury. That’s what our founding fathers envisioned, and that’s what our opponents will never stop trying to eliminate. The American jury is the check and balance which restrains the most powerful, and they abhor anything which diminishes their power. The real issue is not about trial lawyers. The real issue is the fundamental role of accountability which is vested in the American jury, and since our opponents can’t address that issue honestly, they resort to their dirty slogans.

Let’s be truthful about what will really bring down malpractice rates for our friends in the medical profession. It is well documented that tort deform will not do so. Trial lawyers know what will bring down rates, and insurance executives also know what will bring down those rates. Insurance companies fear that the medical profession will one day realize that trial lawyers are their friends on this issue. That fear is an offshoot of a fear of the truth, and the truth is that the only thing which will bring down malpractice rates is insurance reform. Meaningful insurance reform is precisely what the medical profession needs, and it is precisely what the insurance industry does not want them to have.

To avoid an alliance between the medical and legal professions which would be necessary to effectuate meaningful insurance reform, the insurance industry has done a masterful job of deflecting the anger of the medical profession away from the insurance industry and toward us. As strategists, one can only salute the insurance industry for one of the most brilliant political strategies ever conceived. Let’s be candid. Doctors don’t like being confronted about possible negligence any more than we do, and some lawyers have not handled allegations of medical negligence as professionally as they should have. Consequently, the stage was set for the insurance companies and big business to persuade physicians to join them in squaring off against trial lawyers and in undermining the historical role of the American jury in our society.

It is probably too late to reverse the unfortunate political alliance between the medical and insurance industries. Anti-lawyer rhetoric is now openly used in medical schools. Doctors are publicly questioning whether they should refuse to treat trial lawyers, despite their oath. Anti-lawyer rhetoric is now found in the offices of doctors by patients who come in for medical care, not politics. Among doctors, hatred of attorneys has become institutionalized, and that is a truly sad state of affairs. The natural human reaction is to respond in kind and go after them with an equal or greater vengeance. But that creates a vicious cycle and solves nothing. The truth is that we are not the enemy of the medical profession, and we need to be guided by that truth. Their enemy is the insurance industry which sets their malpractice rates, which controls their compensation for services rendered, and which reaps profits beyond imagination in the process. Shall we discuss greed? Bet on it. But we’ll do it with facts, not slogans.

It is also true that we need to do a better job of keeping our own house clean. It would seem that the marketplace would eliminate so-called "frivolous lawsuits", as any attorney is headed for bankruptcy by filing such pleadings. But evidently some attorneys have to learn that lesson the hard way, and innocent doctors and nurses are victimized when that happens. We need to work together on this within our own profession, as the tools to sanction a lawyer who files a truly frivolous lawsuit are present in the rules of civil procedure. Legislation is not needed, and it is not appropriate. Legislation in this area encroaches upon the constitutional authority of the Arkansas Supreme Court. The problem from a political or legislative standpoint is that the word "frivolous" is tossed about carelessly, and clouds the real issues which should be addressed. This is a matter for judges to control.

Our friends in the medical profession do not shrink from complex or difficult problems, nor do we. Hopefully at some point a dialogue based on the truthful exchange of ideas will develop between our respective professions, and hopefully the result will be a higher level of understanding and respect for one another, and for our respective contributions to society. When the medical profession is ready to take on their real problem, and surveys the political landscape for allies, we will be among the few that they find.

Since this article is a search for truth, it’s worthwhile to address the image of attorneys. The image which our political enemies so eagerly portray is false. Let’s speak truthfully about what we really do besides work for the injured victims of negligence, the defrauded small businessman, the disabled Social Security claimant or the victim of racial discrimination, among many other types of cases where the average Arkansan faces off against the power of government, insurance companies or huge corporations. We provide free legal services to the poor who cannot afford to pay. Every lawyer has a duty and responsibility to do so, and every lawyer is required to meet that duty in one form or another.  In response to the tragedy of 9-11, The Association of Trial Lawyers of America launched the largest pro bono effort in history to assist the victims of that horrific event. When our troops were sent to Iraq, the Arkansas Trial Lawyers Association launched "Operation Safekeeping", through which we provide free legal services to the families of servicemen and women overseas. Plaintiffs’ firms and defense firms alike are donating countless hours of time to assist the poor through Habitat for Humanity and similar programs. Attorneys spend many hours each week giving free legal advice when they could be working on matters which produce income. "Greedy lawyers?" That’s a lie, and we need to expose it for what it is, and expose the people who say it for what they are.

The task before us is not easy. Through repetition, the use of vicious, vitriolic language by our opponents has found receptive audiences. Enemies of the American jury are gleefully planning their future assaults. They want nothing less than the elimination of the jury as the constitutional safeguard of accountability. They will stop at nothing to accomplish that goal. Only brave and thoughtful legislators can stop them at the Capitol, and only trial lawyers can stop them in the courts. The truth is, that’s why we joined with other plaintiffs to file the constitutional challenge to Act 649, and that’s why we will continue this fight on every front until the fundamental and historical function of the American jury has been fully restored. Our Arkansas Supreme Court required us to take an oath in order to give us the privilege to practice law, and that oath requires this unwavering commitment.

ARTICLE: IMPACT and Membership, ATLA 2003-04 (Spring 2004) by Brad Hendricks

By Brad Hendricks, Esquire, a former President of the Arkansas Trial Lawyers Association

* Originally published in the ATLA Docket, Spring 2004.  Also available on the Brad Hendricks Law Firm website in the Articles Section.

This is my last opportunity to communicate with you as your President-Elect and IMPACT chair. The members who actually read these articles may have discerned a slightly different style than that of most of my predecessors. Precious little of this space has been devoted to congratulating others for hard work, as that is implicit in the descriptions of what has transpired in ATLA over the last year. Instead, my focus has been on how our organization needs to change, and the work which still needs to be done. This article will hopefully maintain that focus, but some reflection and expression of gratitude should be a part of this last report to you.

Please permit me to enumerate that which has been done before describing that which needs to be done. As this is being written, we are exceeding our stated goal of having one thousand members before the annual meeting in Eureka Springs in late April. At a time when internal and external criticisms of ATLA (some well founded and others ill-informed) were numerous and vocal following the last regular legislative session, we have emerged stronger than ever. The people you elected to lead this organization have listened to you, and working with the Executive Director, have responded to your concerns and demands.

We have greatly strengthened and revamped our lobbying team. We are actively working to challenge Act 649. We have recruited political candidates to run for office and are providing them with substantial support. We have reached out to legislators and healed wounds from the last session. We have hired a full time Director of Legislative Affairs. We have revamped the ATLA administrative structure. We have established good relationships with good legislators, and are working hard to defeat those who are bent on further damaging our civil justice system. We have fanned out across the state to receive your input in person. We have enhanced our public relations efforts. More tort reform on behalf of nursing homes was kept off of the agenda during the special session despite promises that it would be included. The attempt to tax legal fees during the special session was defeated.

That’s the good news. The bad news is, it’s not enough. There is more which must be done and must be done quickly. Your elected leadership has done what you have asked. Now the key to success is in the hands of the membership.

In talking with certain legislators about their votes in favor of Act 649, the worst legislation in the history of our state, one inescapable fact became very clear. Our membership was seriously outworked by those special interests which are determined to weaken the judiciary in general and the American jury in particular. These legislators received hundreds of calls, faxes and emails in favor of tort deform and those communications were cited as the basis for votes in favor of tort deform. That was the result of a brilliantly conceived, well organized and fully executed plan by our enemies. In comparison, our effort can only be accurately described as pathetic. That happened because the rank and file members of our opponents’ organizations were motivated to act, and did so. Stated bluntly, for some incomprehensible reason our members were not motivated to act, and did not do so. As always, some of our members worked hard, but it was a mere drop in the bucket in comparison to the effort which could have been mounted if our membership would have responded in the same manner as did the membership of our enemies. While there is strength in our numbers, if only a small percentage of our members actually do something to work against our opponents, our numbers become meaningless.

I ask you to consider some simple questions, and to consider the impact on all of us if your answers are the norm in our organization. When Carol Utley sent out urgent messages asking you to contact your legislator, did you do so? When you were asked to send emails or make telephone calls to various key legislators and swing votes, did you do so? When you were asked to devote some time to protecting your clients and your practice, did you do so? Have you made the effort to establish relationships with your legislators? The membership of our opponents’ organizations answered those questions with a resounding "YES!" If we can answer these questions likewise in the next regular session, we can defeat the coming attempts to regulate legal fees and usurp from juries the constitutional power to set compensatory damages in civil cases. The judiciary already regulates these subjects, but our enemies seek to legislate that which is the sole province of the judiciary. If we answer "YES!" to these questions, we can take the offensive. We can take the fight to our enemies and put them on their heels, and win. Analogizing the political arena to a fistfight, the best defense is an overwhelming offense, and our membership needs to come out swinging.

One of the most disheartening things that I have observed during and since the last session is that there seems to be some kind of a strange notion that the leadership of ATLA and the ATLA staff can or should be able to handle these battles alone. That simply is not true. Our opponents are not saddled with that misconception, and it is critical that our proud ATLA members disabuse themselves of that false notion. The officers and staff are one small part of ATLA. The membership is our real strength. If the membership is galvanized and motivated to ACT, our successes will be stunning. We have everything we need to win because we have YOU. We are on the right side of the struggle. If we all get actively involved and work hard, if YOU get actively involved and YOU work hard, we will deal our enemies setbacks that will blow their minds.

I mentioned wanting to express some gratitude in this article, but I’m going to resist the temptation to mention individuals by name who are already aware of my gratitude. Rather, I would ask the membership to show their appreciation for the "new blood" which is emerging in ATLA with new ideas and enthusiasm, and for the "old guard" which provides wise stewardship and a sound institutional memory. Do so by getting actively involved yourself, as that is the one thing which speaks above all else to those who are working on your behalf.