Beyond the Underground

When Doctors Leave Town, Where Do They Go?

Not long ago, President Bush came to Illinois to give a speech about "medical liability reform." He claimed, as others have, that doctors are fleeing the Illinois counties of Madison and St. Clair, mostly to get away from lawyers.

"Lawyers are filing baseless suits against hospitals and doctors," the president said. "That's just a plain fact."

I practice law in Madison and St. Clair counties, and I know that some residents are nervous. "What if I'm left without a doctor?" they think. It's hard to blame them. For nearly three years, we've had headline after headline about doctors leaving town. Then we had President Bush saying the same thing. (Never mind that it would take most residents of Madison and St. Clair counties only ten or fifteen minutes to cross the Mississippi River and find a doctor in St. Louis.)

Four months after the president's visit, the headlines continue. Here's one from last week's Alton Telegraph: "Another OB/Gyn leaving . . . Only remaining female baby doctor in area to head to Oklahoma."

It was the paper's lead story. If the headline were any larger, it would not have fit on the page.

So who's leaving this time? It's Dr. Christine Taylor. "There was just some uncertainty here," she told the newspaper. "It's the malpractice rates, but also because of other doctors leaving."

I know some of the doctors who have left, and their motives often had nothing to do with lawsuits. Meanwhile, new doctors have come to town, but this isn't considered newsworthy.

As for Dr. Taylor, she seems to be one of those classic cases: a doctor leaving town because of lawyers and lawsuits and "malpractice rates."

But wait. Could there have been another motive for her leaving?

Fast-Food Update: Where Are the Promised Obesity Lawsuits?

Last May, an Overlawyered headline read: "'String of Fast-Food Suits Expected by End of Year.'" It was one in a series of posts about fast-food litigation that suggested the "plaintiff's bar" had a strategy "to keep filing frivolous lawsuits" until a favorable ruling opened the floodgates to more obesity litigation.

As a card-carrying member of the plaintiffs' bar and the very type of lawyer that Overlawyered and its tort-reformer brethren loves to demonize, I was in a position to know that most plaintiffs' lawyers had no more interest in suing the fast-food industry than they did in eating a Big Mac. So who was keeping the idea alive? First, ironically, it was the tort reformers themselves, who were using the fear they created about the predicted flood of lawsuits to bolster their agenda of legal protections for the fast-food industry. Second, it was the defense lawyers, who were fond of holding seminars to help the fast-food industry prepare for the fast-approaching, but imaginary, wave of litigation.

My speculation about fast-food litigation was the basis of "Who Needs Marketing When You've Got a Villain," a post I wrote in April, 2004, that turned out to be a reader favorite. Now, a year later, the "string of fast-food cases" still hasn't arrived. Meanwhile, there are signs the media might be figuring out that the predicted wave of obesity litigation was all but a hoax. For example, there was this article yesterday from Reuters: "U.S. Lawyers Have Little Stomach for Obesity Cases," by Gail Appleson. According to the article, "While the continuing publicity over a three-year-old obesity suit against McDonald's makes it seem the courts are bulging with cases blaming the food industry for weight problems, few really exist." Appleson quoted a lawyer from Motley Rice, whose principals led the charge against the tobacco industry, as calling the idea of fast-food lawsuits "ludicrous." A law professor quoted in the article noted that no one forces anyone to eat at McDonald's. "Even the most ambitious of trial lawyers throw up their hands and says this does not fly," he said.

Admittedly, some good has come out of the tort reformer's fear-mongering. Appleson notes that some fast-food restaurants have added some "healthier selections" to their menu. But legislatures across the land have also wasted a lot of time. According to Appleson, "Fearing a flood of such cases and lobbied by the restaurant industry, more than 20 states have enacted or are considering legislation that bars or limits obesity suits against restaurants and food manufacturers."

One thing you can say about the tort reformers: They get the job done.

Frivolous Lawsuits in Federal Court?

According to a study by the Federal Judicial Center, the federal court system is one more place where frivolous litigation doesn't exist:

Frivolous litigation is not a major problem in the federal court system, according to an overwhelming majority of federal judges who participated in a recent survey.

The survey, conducted by the Federal Judicial Center, was based on the responses of 278 federal district court judges. Seventy percent of the respondents called groundless litigation either a "small problem" or a "very small problem," and 15% said it was no problem at all. Only 1% called it a "very large problem," 2% called it a "large problem" and the rest rated it as a "moderate problem" in their courts.

Details here (thanks to a reader for the link).

One federal judge who might fall into the 1% who disagrees is Judge Loretta A. Preska of the Southern District of New York, who recently began an opinion (pdf) dismissing one of Richard Scruggs' not-for-profit hospital cases with this metaphor-laden rebuke: "Plaintiffs here have lost their way; they need to consult a map or a compass or a Constitution because Plaintiffs have come to the judicial branch for relief that may only be granted by the legislative branch."

A few pages later in the opinion, Judge Preska wrote, "This orchestrated assault on scores of non-profit hospitals, necessitating the expenditure of those hospitals' scares (sic) resources to beat back meritless legal claims, is undoubtedly part of the litigation explosion that has been so well-documented in the media."

What does Judge Preska cite as evidence of a "litigation explosion"? Not a case from a federal reporter or a study by the federal courts, but Walter Olson's book The Litigation Explosion. I'm not sure if Olson is aware of the distinction. Not only does he fail to mention the citation in his post about the case, but he also fails to mention that his own work apparently set the tone for the judge's entire opinion.

Is it a good thing when federal judges rely on politically-inspired research from writers at tort-reform organizations like the Manhattan Institute? I think I know how tort reformers would answer the question, but I'm not sure I'd agree.

(Note: I amended the last paragraph of this post slightly after I published it. The original version was a little muddled.)

Med Mal Update: The President's Proposal Is Stalled

From the Washington Post: "President's Proposed Remedy to Curb Medical Malpractice Lawsuits Stalls," by Jeffrey Birnbaum and John F. Harris--

"The Senate is deadlocked," said Lawrence E. Smarr, president of the Physician Insurers Association of America, one of dozens of health care groups that are working in coalition to promote Bush's plan. "They're at loggerheads on the basic bill."

. . .

"We are still seven or eight votes away in the Senate from getting that magical number 60," said Christian Shalgian, chief lobbyist for the American College of Surgeons and chairman of the Health Coalition on Liability and Access, the major lobbying coalition siding with Bush on medical malpractice issues.

Bush's proposal, which is modeled on a California law, would limit to $250,000 the amount a health provider could be required to pay a patient for "pain and suffering" beyond the actual cost of medical services provided. The measure would also provide for the payout of judgments over time rather than in a single lump sum, and ensure that old cases could not be brought to court years after the malpractice occurred.

According to the article, given Bush's success with the new class-action law, "many lawmakers are loath to whack the powerful trial-lawyer lobby more than once in a single year." But there could also be another dynamic at work: the President's proposal is rotten at its core, founded as it is on the myth of "junk" malpractice lawsuits. It doesn't stand a chance. (Thanks to Michael Flannery of Carey & Danis for passing along the article.)

Law-Related Things That Suck: State Court Judges

What do the Class Action Reform Act and the Terry Schiavo case have in common? The answer's in the podcast. You can hear it by clicking on the link to the MP3. If you want to get the Legal Underground Podcast to show up on your MP3 player automatically, subscribe to this RSS feed using iPodder or a similar product.

Law-Related Things That Suck: Too Few Frivolous Lawsuits

Why isn't making money as a lawyer as easy as I once thought? The answer's in the podcast. You can hear it by clicking on the link to the MP3. If you want to get the Legal Underground Podcast to show up on your MP3 player automatically, subscribe to this RSS feed using iPodder or a similar product.

Tort Reform on NPR's Morning Edition

Here's NPR's blurb about its piece this morning:

Ever since Tom Donohue became the president of the U.S Chamber of Commerce in 1997, he's been one of the most forceful voices in advocating corporate America's agenda. But critics say Donohue's role as a director on four different corporate boards raises questions about his responsibilities as an advocate for the business community.

Follow the link to listen to a replay of the broadcast. Thanks to Pamela Schaeffer, my mom and previous guest-poster, for the heads up.

The New Class-Action Law in the News

Here are two articles about the new class-action law that feature quotes from familiar people:

• "Reality may stymie desired effects," by Paul Hampel of the St. Louis Post-Dispatch (quoting me); and,
• "Law professors doubt impact of tort reform," by Bill Zajac of the Massachusetts Republican (quoting Bill Childs).

I have more thoughts about the new law in my post "Thinking Out Loud About the Federal Class-Action Bill." 

The Washington Monthly v. Overlawyered

Have you read Stephanie Mencimer's article about the myth of American's lawsuit crisis? I last posted about it on October 8, 2004. At that time, I was alerting readers to the fact that Mencimer herself had replied on this website to a comment about the article by Ted Frank of Overlawyered.

On January 19, 2005, Walter Olson of Overlawyered provided a forum for additional comments about the article by the journalist Stuart Taylor, Jr. According to Olson, Taylor was "outraged by [Mencimer's] attacks on his work . . . and took the time to craft a lengthy, devastating point-by-point rebuttal."

At that time, Olson was also critical of the Washington Monthly for not publishing Taylor's letter quickly enough. Now the Washington Monthly, and Mencimer, have responded to these charges. It seems that Taylor missed the deadline for the January-February issue, and his letter was slated for the March issue--at least, that is, until it showed up at Overlawyered first.

The more interesting part of the story is Mencimer's response to Taylor. It begins, "Taylor has accused me of regurgitating personal-injury lawyer propaganda, a charge that I find not just insulting, but also rather nervy coming from someone who regularly provides a free, high-profile outlet for slanted, industry-financed research designed to bring about changes in the legal system restricting citizens’ rights to sue."

You'll find the rest of Mencimer's response here. If you want to read the pertinent pieces from the beginning in their correct order, do it like this: Mencimer's article, Taylor's criticisms, and Mencimer's response.

Hey, Senator Hatch: Read My Weblog

From the St. Louis Post-Dispatch: "U.S. senators debate Madison County courts' reputation," by Ed Ronco--

The Madison County Circuit Court in Illinois is to some a "judicial hellhole," to others a "jackpot jurisdiction." But for nearly everyone it's Exhibit A in the debate on class-action reform.

On the U.S. Senate floor this week, Madison County has been cited by both supporters and critics of the bill backed by President George W. Bush that would restrict attorney fees in class-action lawsuits and limit where such cases can be heard. For every senator nailing the county as the epitome of judicial abuse there has been another saying it's all a bum rap.

What's interesting to me about the article is that the senators have apparently been talking about one of my cases. Here's more from the article:

"Madison County is not chosen as the venue because of its quaint scenery," said Sen. Orrin Hatch, R-Utah. "It is chosen because defendants in these class actions often do not get a fair shake in Madison County."

Hatch said "due process itself is corrupted by this circus ... judges who seem to be in the pockets of trial lawyers" and lawyers in that venue who anticipate "almost a guaranteed, outrageous award every time they go into court."

Sen. Dick Durbin, D-Ill., sprang to Madison County's defense, noting that most class-action suits brought in the county are never certified to proceed as a class action. Of the suits filed in 2002, only four were certified, Durbin said. One suit was certified in 2003 and no suits made it through in 2004.

The one case that was certified in 2003 was a lawsuit I filed against a travel company. That case is over now; there were 400,000 class members. I'm happy to report that the company has changed its act. Meanwhile, I'd also like to say to Senator Hatch: I chose Madison County as a venue not only for its quaint scenery, but because it's where I practice. (To be perfectly accurate, when the first two Madison County clients walked in the door, only Andrea was working over here; my office was in Clayton, Missouri. Even so, I've been litigating cases in Madison County since 1990.) When I filed the lawsuit in 2000, I was not anticipating "a guaranteed, outrageous award." I was anticipating having to work for years for my clients and the class, which is what I did.

Perhaps Senator Hatch can understand why I get a little annoyed by sound bites that are rooted in fiction, not fact. If he's ever in Madison County, I'd be happy to show him around and take him to lunch. I'll demonstrate how I have some spare change in my pockets, but no judges. I'll also introduce him to the people who brought the lawsuit against the travel company; had the new class-action bill he's supporting been the law in 2000, their case would never have gotten off the ground.