Preventable Hospital Errors

October 25, 2013

by:  George Wise

In 1999, the Institute of Medicine published a widely cited study called To Err Is Human. In it we learned that 98,000 people were dying every year from preventable errors in hospitals. Unfortunately, that study underestimated the number of deaths. According to a new study just out from the prestigious Journal of Patient Safety, four times as many people die from preventable medical errors than we thought, as many as 440,000 a year.

Read the study here.

Medical errors now claim the spot as the third leading cause of death in the United States, ahead of auto accidents and diabetes. Only cancer and heart disease cause more deaths. It is likely the estimates in this new study will replace the Institute of Medicine estimates from 1999. That means hospitals are killing off the equivalent of the entire population of Pulaski County, Arkansas every year. More than a thousand people a day are dying from preventable errors.

These deaths are not from the illness which hospitalized the patient in the first place. Patients are dying from preventable errors due to a lack of emphasis on safety. These preventable errors are common and well known. A sponge left inside the surgical patient causing a massive infection. A massive medication overdose. Infections from contaminated equipment used at the bedside. Following safety rules prevents these errors.

When will it end? Society picks up the costs of these errors in the form of higher costs for hospital care. Employers lose good employees and thousands of dollars in lost productivity. Families needlessly lose loved ones. We need to insist that hospitals implement safety standards to eliminate these errors. Safety first should be a hospital’s motto.

Tort Deform Myth Busted

August 27, 2013

Arguments supporting restrictions on the right to a jury trial (mischaracterized as tort or lawsuit reform) are based primarily on myths and unsubstantiated anecdotes. One of these myths is that doctors practice defensive medicine more often in states without caps on damages; therefore, caps on damages will reduce defensive medicine. A new study busts this myth.

According to a study by the Center for Studying Health System Change in the August Health Affairs, physicians’ perception of their risk of malpractice liability predicts their practice of defensive medicine. Below is the abstract of the newly released study:

Health Aff (Millwood). 2013 Aug;32(8):1383-91. doi: 10.1377/hlthaff.2013.0233.


Despite widespread agreement that physicians who practice defensive medicine drive up health care costs, the extent to which defensive medicine increases costs is unclear. The differences in findings to date stem in part from the use of two distinct approaches for assessing physicians’ perceived malpractice risk. In this study we used an alternative strategy: We linked physicians’ responses regarding their levels of malpractice concern as reported in the 2008 Health Tracking Physician Survey to Medicare Parts A and B claims for the patients they treated during the study period, 2007-09. We found that physicians who reported a high level of malpractice concern were most likely to engage in practices that would be considered defensive when diagnosing patients who visited their offices with new complaints of chest pain, headache, or lower back pain. No consistent relationship was seen, however, when state-level indicators of malpractice risk replaced self-rated concern. Reducing defensive medicine may require approaches focused on physicians’ perceptions of legal risk and the underlying factors driving those perceptions.

The findings of this study suggest that malpractice reforms touted for years as reducing defensive medicine, such as caps on damages, do not change how physicians practice. On the other hand, one could certainly argue that there is actually no such thing as defensive medicine. Either a test or procedure is necessary or it is insurance fraud to bill for it.

Under the Arkansas Constitution, the right to a jury trial is protected by language which says, “The right to a jury trial shall remain inviolate…”. Inviolate means untouched and undisturbed. The right to a jury trial should remain untouched and undisturbed and not subject to restrictions based on myths.

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

March 29, 2013


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

June 27, 2012

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

March 9, 2012

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 . . . .

March 30, 2010


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?



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.


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.

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

February 26, 2010

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)

February 25, 2010

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)

February 25, 2010

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)

February 25, 2010

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?


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