IlliniPundit questions the Center for Science in the Public Interest's move to require warning labels on soda cans. In the petition the CSPI presented the FDA, the group suggests the warning label would include the following:
The U.S. Government recommends that you drink less (non-diet) soda to help prevent weight gain, tooth decay, and other health problems.
To help protect your waistline and your teeth, consider drinking diet sodas or water.
Drinking soft drinks instead of milk or calcium-fortified beverages may increase your risk of brittle bones (osteoporosis).
IlliniPundit states: "First, the nanny-staters want warning labels. Second, they push for restrictions on consumption. Third, a total ban. Because some behaviors are just too tempting and too dangerous, and they don’t trust people to make decisions for themselves."
However, the missing fourth element might read:
Fourth, the nanny-staters will then work with powerful plaintiffs lawyers to eliminate or bankrupt the manufacturer.
This is the case in so many different products, from ladders to football helmets to cheeseburgers.
Most warning labels are the result of frivolous lawsuits, though. Consider these Wacky Warning Labels, presented by the Michigan Lawsuit Abuse Watch, that undoubtedly are the result of litigation or the fear of litigation:
A flushable toilet brush that warns users: "Do not use for personal hygiene."
A popular scooter for children that warns: "This product moves when used."
A digital thermometer that can be used to take a person's temperature several different ways, warns: "Once used rectally, the thermometer should not be used orally."
An electric hand blender promoted for use in "blending, whipping, chopping and dicing," that warns: "Never remove food or other items from the blades while the product is operating."
A nine- by three-inch bag of air used as packing material that carries this warning: "Do not use this product as a toy, pillow, or flotation device."
M-LAW's Robert Dorigo Jones adds: "Warning labels are a sign of our lawsuit-plagued times. From the moment we raise our head in the morning off pillows that bear those famous 'Do Not Remove' warnings, to when we drop back in bed at night, we are overwhelmed with warnings. Plaintiff’s lawyers who file the lawsuits that prompt these warnings argue they are making us safer, but the warnings have become so long that few of us read them anymore-- even the ones we should read."
Maybe what we really need is a warning label on lawyers:
Warning: The actions you and your lawyer take in our public court system will have a dramatic effect on economic and personal freedoms you and your neighbors currently enjoy. Proceed with caution, future legal precedents will raise the price of goods and services, diminish your ability to access quality products and healthcare, and restrict your right to participate in many worthwhile activities.
Ted Frank at Overlawyered.com recently examined a Seventh Circuit Court of Appeals case that help illustrates exactly why Madison County has earned its negative reputation as the #1 Judicial Hellhole in America.
Though the policy language was clear, the task was made trickier because the Fifth District Appellate Court of Illinois--the appellate court for Madison County and much of southern Illinois--had issued two decisions that contradicted Illinois Supreme Court decisions in an effort to read anti-stacking provisions out of the policy.
If you think Ted is critical in this instance, just read what the Court of Appeals had to say in its decision:
It is hard to imagine clearer language. But it is not enough for one state appellate court. The Appellate Court of Illinois, Fifth District, has held in two decisions that, when the declarations page of a policy contains the language "insurance is provided where a premium is shown", the policy is ambiguous notwithstanding an explicit antistacking clause, because an insured might read the language "insurance is provided" to permit stacking.
The judges then point out that not only did two other courts in Illinois arrive at different conclusions than the Fifth District, but no other court in the nation seems to hold the same opinion as the Fifth District:
As far as we can tell, the Fifth District stands alone among the 50 state judicial systems. The policy Grinnell issued — with a declarations page listing multiple cars, premiums, and coverages separately, and then a clause stating that the limit for one car and one accident is the total available no matter how many vehicles or premiums are shown in the declarations — is the standard auto liability form devised by the Insurance Services Office and is in use across the nation. Defendants did not cite, and we could not find, any decision outside the Fifth District allowing stacking.
In other words, even though Grinnell used a standard auto liability contract - in fact, one used all across the nation - somehow the Fifth District arrived at a different conclusion on the contract than any other court in the country.
As "officials" in Madison County continue to dismiss any validity to the notion their courts are different from any others, let us remember what the United States Seventh Circuit Court of Appeals has to say: "As far as we can tell, the Fifth District stands alone among the 50 state judicial systems." Unfortunately, this statement is far from a compliment. In other words, "we're still #1 at being dead last."
I'm sure there's some great philosophical debate, but let's leave that for another day. In Illinois, judges must be worth more, and the attitude of Madison County's Chief Circuit Judge indicates it.
According to the Intelligencer:
A proposal to triple jury pay, from $10 to $30 per day, has died in the state Senate. To cover the increased expense, House Bill 339 would have allowed counties to increase the fees -- by $10 for each plaintiff and defendant -- that attorneys must pay when they seek a jury trial.
The jury fee is currently $212.50.
Chief Judge Edwards Ferguson was not particularly sad to see the bill fail.
"The magic bullet, of course, was 'We'll have the ones who use the courts pay for it,' but that's getting so onerous," he said Friday at a meeting of the Madison County Judiciary Committee.
Interesting comment on user fees, coming from a Judge that now sits in a new Criminal Courts Building that was paid for by a case that has nothing to do with Madison County's Criminal Court.
For the record, the ICJL supported the bi-partisan-sponsored Senate Bill 1481, which included the increased juror pay with a host of other jury reform initiatives. That bill didn't emerge from Senate Judiciary Committee. The ICJL did not take a position on House Bill 339.
Back to the story:
Last year the county paid jurors about $80,000, not including about $50,000 for mileage and $1,700 for meals.
So Madison County spent about $131, 700 for all of its juries. Meanwhile, Judge Ferguson, one of eight judges that calls Madison County home, makes $136,546 a year. Eleven other Associate Judges draw $127,247 a year.
Let's compare yearly costs: Madison County Juries: $131,700 Madison County Judges: $2,492,085
Judge Ferguson makes about $525 each workday. A 12-person jury altogether gets paid $120 plus mileage. Is it that unfair to pay the jury in a manner that is more equitable to what the judge is making?
And, how can the increased filing fees really overburden Madison County lawyers, some of whom have earned $13,100 a hour in class action litigation?
In Illinois, trial lawyers look at clear evidence of the impact of lawsuit abuse against Illinois doctors and tell legislators they see nothing wrong with the legal system. What's visible evidence to everyone else must be invisible to the trial lawyers?
While trial lawyers seem to be great at making clear evidence invisible, they're now getting help at making invisible evidence visible! In the new June issue of the ATLA Trial magazine, trial lawyers will get instruction on "Proving Invisible Injuries":
It's said that seeing is believing, so what do you do when the jury can't see your client's injuries? The June issue of TRIAL tells you how to make invisible injuries visible.
It's this type of logic that explains why Illinois is heading into another "final week" of a legislative session for a third year in a row without having passed meaningful medical liability reform. If "seeing is believing" for trial lawyers, perhaps they should view Glenn McCoy's recent political cartoon for starters.
While trial lawyers learn more in June on how to better express to juries how to "prove" the need for an increase in non-economic damage awards, will there be many doctors left in Illinois for them to practice their newly-learned skills?
To update our post from yesterday... it must be bad lawyers contributing to the medical malpractice crisis.
Case in point: The Illinois State Bar Association released a study they commissioned on the subject of medical malpractice that reports on the jury verdicts for cases in Cook, DuPage, Madison and St. Clair counties from the early-90s to 2004. The study mentions the worn-out argument that there have only been four verdicts against doctors in the past eight years in Madison County (see the post below for more on this stat), and utilizies the same methodology for extinguishing the "crisis" in Cook, DuPage and St. Clair counties.
As Oly Bly Pace III writes:
The resulting study, titled “Medical Malpractice and the Tort System in Illinois,” set out to provide factual answers to several critical questions facing the General Assembly as it decides what, if any, changes to make in the laws governing medical malpractice.
It's the Settlements, Stupid!
For the largest statewide association of lawyers (30,000 members strong) to assert that there is no link between medical malpractice litigation and the rise in liability rates, without studying the settlement history in cases brought before the court, brings into question the integrity of ISBA's motives in helping to resolve the issue before the state legislature.
Is the ISBA unaware that much litigation in Illinois is resolved through settlements? Or is Duke Professor (Dr.) Neil Vidmar unaware of the concept of settlements in litigation?
Is it any surprise that Professor Vidmar failed to draw the proper methodology for the study? As Ted Frank points out in his comments posted to a recent Evan Schaefer blog article:
Vidmar's been writing about this subject for years, most notoriously as a paid expert challenging the constitutionality of Indiana's caps. If he makes the same errors in the Illinois paper that he made in his Indiana paper [...] the lawyers will be happy with his results, which is why they're confident in hiring him. Vidmar may or may not be biased [...] but the selection of Vidmar to do the study was certainly a biased one.
So, the implication is this guy isn't quite as biased as Jay Angoff, but...
Therefore, to state - as their study's title does - that their report offers facts relating to medical malpractice and the TORT SYSTEM, without considering settlements, renders their study and data useless.
Which is a shame, because it's nice to see the state bar association finally get interested in how their membership is affecting other professions in Illinois.
Ted Frank (PointofLaw.com) and Evan Schaefer (Notes from the Legal Underground) had a memorable exchange about settlements in this May 2004 post, in which Evan argued that med mal wasn't just a Madison County problem and Ted argued that settlements were being ignored in the trial lawyer statistics.
Ted: "Evan, you and I both know that the bulk of medical malpractice claims get resolved in settlements based on both attorneys' perceptions of what a judge will permit a jury will deliver. So why do you persist in this transparently bogus use of a "verdict" statistic..."
Evan: "I also said there is inadequate information about the cases filed in Madison County. Your numbers don't help. We can speculate on sound footing that some of the cases filed against doctors in Madison County were settled, but the vast majority were undoubtedly dismissed without the doctors' paying anything, since that is the nature of medical malpractice lawsuits..."
For those with short memories, the ICJL study found that nearly one-third of all doctors in the metro-east had been personally named in a lawsuit between 2000-2003. ICJL data estimated that half of the Metro-East doctors were affected, either by being named personally or having one of the partners or their practice named in a lawsuit.
The ICJL study looked at 422 lawsuits filed in Madison and St. Clair counties in four years, naming 1,082 total defendants. The metro-east had approximately 950 registered physicians at that time.
And, the study showed that the crisis had nothing to do with repeat offenders. 242 physicians or roughly one-fourth of all Metro-East physicians were named only once over the four-year period.
Nearly one year later, the most interesting conclusion is the rate of failure by Metro-East trial lawyers. After harassing physicians with 422 lawsuits, only five of them went to trial with a verdict in favor of the plaintiff. That's a success rate of just over 1%.
So, to respond to Evan's recent medical malpractice question, I'd like to know: "When medical malpractice cases get dismissed, where do they go?"
The answer is more complicated than the ISBA and Professor Vidmar wish to examine in their study. Some cases get dismissed (and the doctors and their insurance companies get left with the bill). Some cases get settled (and the doctors and their insurance companies get left with the bill). That "bill" could be as little as $25,000 (I think the latest average defense cost per doctor, regardless of the outcome) or perhaps into the millions (in the case of settlements).
If ISMIE statistics show that 85 percent of St. Clair County cases and 72 percent of Madison County cases get thrown out without a payment to the plaintiff, then the ISBA study is neglecting (the most costly) 14 percent of cases in St. Clair County and 27 percent of cases in Madison County.
You can believe there's not a problem with medical malpractice litigation in the Metro-East, if you want to. 422 cases filed and only 5 "wins" for the trial lawyers in court.
You can choose to ignore the outcomes of the other 417 cases. You know, the endless depositions that take doctors away from their patients, the escalating costs of defense lawyers to get non-meritorious suits thrown out, the heartache and headaches for doctors who apparently "win" their cases 99 percent of the time.
Would you have a problem going to a doctor that was unsuccessful 99 percent of the time? Even after 422 tries? So, how can you say that we don't have a problem with medical malpractice litigation in the Metro-East?
I was inspired by T. Evan Schaefer's recent post, "When Doctors Leave Town, Where Do They Go?" In his post, Evan recounts a statistic spun by the Madison County trial lawyers that only 11 lawsuits have gone to a jury since 1996, and only four of those were found for the plaintiff.
According to the Edwardsville Intelligencer article within which this statistic was reported, the four lawsuits resulted in verdicts of $25,000, $75,000, $450,000, and $1.7 million, meaning combined damages (economic and non-economic) were below the recent Shadid-standard for caps in three of four cases.
Apparently this is a meaningful statistic in the medical liability reform debate. (Note my sarcasm).
It seems to be forwarded again and again by trial lawyers in this area. They say insurance companies must charge the doctors too much, especially if Madison County juries have awared less than $2.5 million in the past eight years. If only the issue was that easy to explain.
Just for fun, let's put the statistic in real context within the debate. FACT: There have only been four winning plaintiffs in Madison County in eight years. ICJL did a study looking at the number of medical defendants in Madison County from 2000-2003, so let's assume that ALL four of the winning plaintiffs were successful in that time period (trying to be fair to the trial lawyers with my assumptions).
So, out of 181 medical malpractice suits filed in Madison County from 2000-2003, the plaintiff and his/her trial lawyer(s) were successful - at most - 2.2 percent of the time. Which, by the standards put forth by the trial lawyers, 97.8 percent of the medical malpractice cases filed in Madison County result in no verdict for the plaintiff, meaning the trial lawyer lost the case.
Conclusion: Trial lawyers fail in 97.8 percent of the claims they file against doctors in Madison County. Doesn't sound like we have very good legal skill here in this county...? And, the trial lawyers say they already turn down 90 percent of the potential cases they could take, because of lack of merit...?
If the doctors failed 97.8 percent of the time for their patients, then we really would have a problem with our healthcare. But unfortunately, it's lawyers missing with so many cases.
In the process, more than 460 defendants were named in the 181 lawsuits. No wonder so many doctors are rallying to change the way medical liability is assessed in Illinois. Needless defense costs were paid, needless time away from patients was spent, needless anxiety over meritlous claims was expended, needless headaches and heartaches for families (on both sides) was extolled. Meanwhile, the adequate resources collected from doctors to compensate victims when negligence actually occurred was wasted defending against claims headed for dismissal.
It's starting to sound like there's been a lot of pain and suffering extracted against our doctors, considering the high rate of failure by plaintiffs lawyers in medical malpractice cases in Madison County. Perhaps someone should call a lawyer.
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