By: Doris Colmes

Currently, being ushered into law, is a tactic that the Bush Cabal has named “Tort Reform.”  This measure would cap all punitive damages in suits addressing malpractice and injury suffered via the faulty manufacture of products and subsequent loss of life, limb and ability to make a living which are the result of the above.  This leaves us to ponder who would actually be affected, and how, once this law goes into effect.  For example:

What about the woman whose wrong breast was removed during breast cancer surgery; or the guy who is now in a wheelchair because gangrene of toe was misdiagnosed as “frostbite” and he was summarily dismissed from his physician’s office after being told to “warm up gradually.”   And, who, as a result, wound up losing an entire leg.

The corporate medical empire has, more often than not, been able to suppress most of these medical malpractice errors, not only by not divulging facts, but via the time honored tradition of “one doctor does not testify against another doctor, because mutual protection is the best medicine.”

Fortunately, persons who have been victimized by flagrant malpractice, such as the two examples cited above, have been able to get recourse via lawsuits, none of them frivolous, believe me!  Ignored injuries, amputations of the wrong limb, misdiagnoses leading to death are within the realm of the chances we all take when we seek medical advice. 

Does this happen often?  Well, not often enough for the population to seek cures from witchdoctors instead of M.D.s, but often enough to cause great damage to many persons, their families and their sources of income.  Sometimes, the money received from suing the doctor who actually perpetrated such criminal practices has actually saved families from complete poverty, because a breadwinner became chronically bed-ridden, or otherwise incapacitated.  Justice triumphs in these cases, we all agree.

But now, we are on a different track.  The Bush administration is vowing to change all this, by way of implementing something it calls “Tort Reform.”

So, what, exactly is that? Let’s explore.  There is currently a project being worked on, signed and approved by 367 Republican legislators, called Contract with America.”   This “Contract” includes such chapters as:  the “Fiscal Responsibility Act,” the “Common Sense Legal Reform Act,” and even the “Senior Citizen Equity Act,” signed by such legislative luminaries as  Tom DeLay,  Dennis Hastert, Lamar Smith, Jim Ramstad and many, many others.  Each one of these acts  -- and I’ve only mentioned a few -- contributes to what is called “Tort Reform”, which in essence will prevent citizens from suing corporations, physicians, and/or anyone in-between who might be a bona-fide member of the controlling corporate system in this country.

Contract with America will make the loser pick up the winner’s legal fees, and it imposes mandatory penalties on lawyers who abuse the system by bringing suit the following:  Product Liability will be thrown out.    If your car suddenly catches on fire while ignition is off, thus burning all inside (note Ford’s current -- January 30, 2005 -- recall), it will no longer be the fault of the product.  Only persons directly responsible for the injury will be allowed to be sued!  So, unless the Ford Motor Company actually sent a sneaky saboteur  to the parking lot where you were waiting with your kids, (ignition off), for your wife to come out of the grocery store and purposely set your car on fire, hey, there will be no grounds for lawsuit.  Therefore, any lawyer who will dare to take on the car manufacturer for selling a lethal product to an innocent buyer will be penalized!

And, as for the provision in which the loser of a case has to pay the legal fees of the winner--This will effectively discourage the filing of “weak cases,” because losing such a case would bankrupt John Doe, already devoid of income from a debilitating faulty-product accident, or from medical malpractice, causing him to plunge into complete bankruptcy instead of getting his just dues.

What makes a case weak?  For example, in medicine, there is the above-mentioned truly “sacred tradition” in which doctors routinely refuse to testify against one another, thus eliminating honest scientific validation of mis-diagnosis, failure of diagnosis, or wrongful surgery.    The case, then, becomes “weak” and it is up to the lawyer to provide “scientifically valid reasoning” from persons testifying in the client’s behalf. And, if such a witness is not a bona-fide specialist within the profession in question, his/her testimony will not be considered as “valid.”

When it comes to “Faulty Product Liability,” the client will have to prove via “clear and convincing evidence” that the harm they suffered was the direct result of malicious conduct on the part of the manufacturer.  In Ford’s case, that would mean having to prove that the designers of the faulty ignitions that have caught fire while the ignition was turned off, thus immolating an entire family -- and in one case -- a house that caught fire from the burning garage in which the car was parked, were sitting around and maliciously planning this whole thing!

In opposition to these proposed “tort reforms” -- particularly in the medical profession -- Joanne Doroshow and Geoff Boeh, both legal activists, have disclosed that eight consumer groups have already called on the American Medical Association (AMA) to notify federal and state lawmakers, as well as the AMA’s own membership, that it had made false statements about the impact of medical malpractice insurance problems on access to health care in the United States.

In fact, (via Medical Malpractice Myths Uncovered, prepared by Citizen Action Group) “Health care costs have more than doubled since 1980, but medical malpractice premiums represent a negligible portion of the overall health bill. Among the many other factors which play very significant roles in the continuing increase of health care costs, including insurance industry waste and inefficiency, and a lack of limits on the price of medical care. In fact, actual medical malpractice premiums represent less than one percent of the $700 Billion spent on health care!”

Citizens Action Group also reveals another myth being exploited by those legislators implementing “tort reform” is that the fear of medical malpractice drives doctors to order unnecessary tests, and that such defensive medicine in driving up the cost of health care. 

In fact, “Medical malpractice claims rarely relate to tests which were not conducted.  Further, little data is available on this subject.  As it turns out, physicians who own testing equipment, simply prescribe more tests than those who do not”

“Tort reform” destroys all medical “Product Liability.” Three examples provided by “A.M. Best Databases” states that

1) the Upjohn Company, maker of Halcion, a sleeping pill, admitted that it submitted incomplete data on the side effects of the drug when sought FDA approval.  The drug is linked to severe psychological disturbances.

2) Leaked company documents relating to safety concerns about Versed, a Valium substitute, show that the Hoffman LaRoche Company ignored safety concerns of the drug since 1980.  It appears that the company disregarded its own concerns for safety in favor of marketing.

3)  Pfizer,Inc knowingly distributed defective heart valves that led to 350 deaths in the last twelve years.  Pfizer has settled individual suits brought by families of people who died, but the court records are sealed at the request of  Pfizer.

Oh yes, and anybody want to talk about Vioxx or the Zoloft prescribed to an eleven year old boy who then killed his grandparents, set their house on fire and is now being tried as an adult?  Testimony reveals that Zoloft, should never be prescribed to non-adults because it results in completely psychotic behavior in which the youth is unable to discern “right’ from “wrong.”    But, of course, the kid will go to jail....But, of course, no one was warned.

A final report from Citizens Action Group, states unequivocally that the actual number of medical malpractice claims has been dropping since 1985.  

So, what’s this furor all about?  Well, aside from protecting the corporate entities that control not only medicine, but all product manufacturing and distribution in this country, “tort reform” has a second reason for being. Let’s explore. The facts -- according to “The Facts”, a summary of the tort reform hoax compiled by the Minnesota Trail Lawyers Association -- are as follows:

Part of the proposed “tort reform” is something called the “Immunity Bills” which would grant full or partial immunity from negligent acts.  These so-called “Immune” corporations include -- but are not limited to -- recreational businesses, the livestock industry, motels, innkeepers, (Think international corporate chains such as Ramada) school officials ( the principal who was aware of the sex-offending teacher, but chose to ignore the behavior?) and volunteer athletic physicians.  

If enacted, the injured person pays the cost of his/her injury, even if he/she was not at fault, and expanding immunity laws, will, of course, lessen incentives to improve safety thus leading to increased injury.

 According to the Rand Corporation Institute for Civil Justice, part of “tort reform” propaganda is the threat of “Litigation Explosion.”  In fact, “of the approximately 70,000 people injured each year in the USA, only 10% use the tort system for compensation.”

In point of fact, the two-edged sword of tort reform not only protects corporate America, but actually and implicitly targets trial attorneys. And why?  Because -- also in point of fact -- trial lawyers are the single largest group--the American trial lawyers--who routinely and generously contribute to the Democratic Party Campaign Funds.  Hey, deplete the incomes of those nasty suckers, and -- without any doubt -- decrease Democratic Party Funding by one heckuva percentage, and that is part of the heart of Tort De-Form coming from the Bush administration. A back door method of de-funding the Republican Party’s political “competitors,” the Democratic Party  

If you have any doubts as to the efficacy of American Lawyers who routinely represent and achieve equal justice for the proverbial “underdog”, read Lawyers and the American Dream by Stuart M. Speiser.  He posits that, “Our trial lawyers and their dream of equal justice for all are so powerful, that lawyers in other nations are following the American example”  So, see, they’re not all ambulance chasers, and our citizens must continue to get their just dues.   “Just”, after all, begins the word “Justice”

Even  worse than the inability to pursue justice on an individual basis, is a Bill that the House of Representatives has just approved, which will move “Class Action Lawsuits” from State to Federal courts.  Class Action Lawsuits are those when an entire group of persons who have been affected by a faulty product or service join together in suing the firm responsible for these afflictions … whether it’s an SUV whose number of roll-overs have been so huge that hundreds of people wound up either grievously injured or minus a beloved family member, or whether it’s a tire manufacturer who has consistently installed a particular model of tire  -- a model that quite routinely blows out at freeway speed – causing terrible injuries or death to drivers and passengers  Or, even an asbestos manufacturer whose insulation product has killed not only the    persons living inside such insulated homes, but also the installers, by way of mesothelioma cancer, resulting from inhaling loose asbestos residue and fiber..

  House Minority Leader Nancy Pelosi (D-Cal) scored the bill as “A payback for big business at the expense of consumers.”    Representative John Conyers, Jr., (D-Mich), warned:  "This is not a simple procedural fix.  Moving the cases to federal court will result in many cases never being heard."  (Portland Oregonian, February 18, 2005)

As for President Bush?  In a speech on January 7, 2005, referring to the above, he stated:  “We have too many junk lawsuits in our system.  Pure and simple” www.cbsnews.com/stories/2005 /01/07/politics/main6654301 /shtml-50k-

These are all Class Action suits, usually tried in State courts.  And why in State courts?  Well, first of all, there are so many conflicting laws in our various States, that, if such suits were to be tried in Federal Court, a lot of them would simply have to be tossed out, because a person living in, (just for example), Colorado might not be subject to the same restraints and/or rights and privileges as a person living in Florida.  This disparity of State versus Federal Laws would result in many cases being thrown out of Federal Courts before even being tried. According to the U.S. Chamber of Commerce, quoted in the Portland Oregonian on February 18, 2005:  “Waging class action suits amid a patchwork of state laws produces irrational verdicts and invites abuse by plaintiffs’ lawyers filing suits in certain courts known to be sympathetic to the cases, no matter if there is any particular logic to hearing the case in that jurisdiction.” 

And, as a bit of a kicker here, let us just very briefly address the fact that all Federal Courts (since President Bush took office in 2000) have been being groomed quite auspiciously into increasingly conservative bodies of law.  Liberal Federal Judges are becoming a thing of the past – at least for the next forty years – which is how long many, many judges stay on the bench.  (Want an example?  Just take a look at Judge Rehnquist of the Supreme Court, who’s still up and judging, despite age and illness.)

And that “Payback to big business” line uttered by House Minority Leader Pelosi?  Let’s take a look at the Asbestos Class Action Suit.  As it happens, the manufacturing firm which produced the asbestos in question is a bit of a business named Halliburton.” (www.halliburtonwatch.org/about _hal/asbestos-html-7k  ) Oh, surely you remember that name – it’s the corporation that not only gave us Vice President Cheney, but also the company currently making millions of dollars in Iraq, doing various tasks none of which are revealed to the public, but which earn Halliburton and its subsidiaries millions of dollars daily.

Currently, persons who have become ill of mesothelioma cancer, a terribly painful terminal disease, whose loved ones have died of lung cancer--all of whom are directly connected to the installation of asbestos in homes, or connected to the manufacture of asbestos by Halliburton, or to the installation of asbestos into homes by installers employed by the corporation--are engaged in bringing forward a class suit. The push to eliminate class action lawsuits will effectively end these asbestos liability lawsuits which is what the Bush administration is after.

(www.asbestosnews.com/html /asbestos_lawsuits.html-14k-)

For further information as to what these patients and their families are enduring, access: www.mesotheioma-lawsuits -asbestos.com  or www.lean-on-me-net   The courage, pain and determination of these families must not be for naught.

Passing the House of Representatives bill which shoots this – and all other kinds of class action cases – into Federal rather than State courts, will surely cause terminal damage to such suits, via the two lethal obstacles mentioned above:    Conflicting state laws, and the very extensive  Federal Court bench placement of neo-con conservative judges who all  seem to be connected not only to one another, but to the corporations involved, will surely bring an end to this pesky habit of United States Citizens:  Uniting in common cause to right the wrongs, to bring justice from the blind-folded statue in the Court Hallway into the homes and hearts of persons who have been hurt and are seeking fair redress. Keep informed via www.asbestoslawblog.com/ -recent-asbestos-news-63 -asbestos-deaths-skyrocketing .html-15-k-

Doris Colmes has an MS in Sociology. She has authored a book, “The Iron Butterfly: A Trip Thru the 20^th Century”  http://www.doriscolmes.com She is an independent writer whose articles have been widely published on the internet, including the Project for the Old American Century and in print publications. Her email address is dhcolmes@msn.com