•    The Politics of Tort Reform
        A Trojan Horse with Bad Intentions
       

    Scales of Balanced Justice

    Yes, the title is redundant twice over again.

    Whooops - Did I just re-redundance that redundancy?

                But the central point and the inherent dangers of Tort Reform proposals are worth stressing. This is a topic about which the general public is woefully misinformed and uninformed.

    The legal term “Torts” refers to a class of civil actions related to wrongful death or injury lawsuits, where the death and/or injuries were caused by the negligent or reckless or deliberate actions of another who had a legal duty NOT to act negligently or recklessly or who had a legal duty NOT to intentionally harm the person or property of another (a duty to use Due Care). The most common examples of Tort Actions are: Medical & Legal Malpractice, Wrongful Death actions, Personal Injury cases.

    Over the past decade or so, a virulent movement has gathered strength, to put serious limits and restrictions on Tort Actions, initially singling-out Medical Malpractice cases for these severe litigation restrictions. The reason? Tort Reform proponents claim they need Tort Reform restrictions because litigation, they claim, is to blame for the enormously high cost of medical services in this country. They blame the injured victim (the Plaintiff) and their attorneys for the high cost of medical services and medical care in the United States. Tort Reform proponents claim that by severely limiting a victim’s ability to recover damages for medical malpractice conduct that causes wrongful death and/or injuries, the costs of medical services and medical care will become lower and will stop skyrocketing as it has for many decades. Of course, one could also argue that by closing down all prisons and releasing all inmates, our taxes would be much lower. But common sense tells us this is NOT an option we should seriously consider. Unfortunately, ‘common sense’ is in short supply when it comes to the issue of “Tort Reform Legislation.”

    To support their claims, most Tort Reform advocates cite extremely rare case anomalies like the “Hot Coffee” case, where someone sued a fast-food chain because they were scalded by a cup of hot coffee they purchased at a take-out window. In short, Tort Reform proponents argue that the medical profession has been besieged by an avalanche of “frivolous” litigation which is solely or primarily responsible for causing the enormously high costs of medical services and medical care in the United States.

    Virtually everyone agrees that the cost of medical services and medical care in the United States is outrageously HIGH. And most everyone agrees that the cost of medical services and medical care in the United States is continuing to skyrocket beyond the reach of many Americans. The critical question, however, is: “What are the leading, primary “causes” for this runaway inflation of medical costs?” Is malpractice litigation significantly responsible for this intractable skyrocketing increase in medical costs?

    A sober, honest examination of the leading, primary causes of these skyrocketing costs reveals that litigation is NOT to blame, while a host of adverse conditions within the medical services industry ARE directly and primarily to blame for the runaway inflation in medical costs.

    LITIGATION STATISTICS – NO SIGNIFICANT INCREASES

    Statistics and litigation data conclusively show that the number of cases litigated and the malpractice awards being handed-out in tort litigation has NOT significantly increased in several decades, while the costs of medical services and medical care HAVE continued to skyrocket enormously during this same period, as everyone well-knows. Obviously, this would NOT be the case if litigation was the leading, primary cause of this runaway inflation. If tort litigation was the leading, primary cause of skyrocketing health care costs, then those health care costs would NOT have escalated for the past two decades in which tort litigation and the awards handed down did NOT increase.

    Furthermore, frivolous litigation rarely, if ever, wins at trial and the few that do win are essentially never upheld on appeal. Statistics show that the cases that do win, are cases where the negligent or reckless conduct was so outrageous, so irresponsible, that no “competent” doctor would ever have engaged in such conduct. As every lawyer well-knows, there are serious, formidable adverse financial consequences for both the attorney and the plaintiff, for engaging in “frivolous” litigation. Plaintiffs and their attorneys are held financially liable for the defendant’s legal costs and expenses, where the plaintiff loses a frivolous action. Even if the litigation is NOT deemed to be frivolous, the plaintiff can be held liable for all litigation costs and expenses of a prevailing defendant doctor, under a number of common circumstances. In fact, even if the Plaintiff wins the litigation, that Plaintiff could end up being liable for all court and litigation costs and attorney fees if the award amount is not a certain percentage higher than the pre-trial “Settlement Offer” made by a defendant. These myriad protections against frivolous litigation have been in effect in all states for many, many decades, and statistics consistently show that they have been highly effective in reducing frivolous litigation to negligible levels. Additionally, attorneys can suffer sanctions and lose their license to practice law for engaging in frivolous litigation.

    The real question to ask is this. If, as proponents claim, medical malpractice payouts are so abundant that it has become the leading cause of skyrocketing inflation for medical services, “WHY IS THERE SO MUCH MALPRACTICE BY DOCTORS?” (Plaintiffs do not win unless mapractice has occurred). Why is the AMA (American Medical Association) so militantly engaged in the practice of covering-up and concealing known prior instances of doctor incompetence and wrongful malpractice conduct? Why is the AMA NOT rigorously and diligently engaged in a stalwart effort to identify, disclose and weed-out incompetent doctors, especially repeat offenders? Why is it that a patient seeking vital information about a prospective doctor’s or surgeon’s malpractice misconduct history is met with a militant stonewalling response from the AMA when such information requests are submitted to the AMA? If malpractice payouts are the cause of skyrocketing malpractice insurance costs, as proponents claim, why doesn’t the AMA simply weed-out the incompetent offenders and distance itself from them, instead of rigorously and tenaciously shielding them and concealing known instances of misconduct? Any patient who has ever tried to investigate and research the credentials and medical practice history of a prospective doctor or surgeon KNOWS that the AMA is bent on stonewalling that effort, while desperately shielding doctors by concealing vital, known instances of misconduct.

    In a recent malpractice case, Michael Washington, a 70 year-old retired Air Force veteran, went to a veterans hospital for what was supposed to be a simple, routine 15-minute colonoscopy. After being quite ill for some time after the colonoscopy, he went to see an internal medicine physician who told him that he had contracted an active case of Hepatitis C “as a result of unsafe injection practices where [colonoscopy] syringes were reused instead of being disposed of.” (ABC News – “Malpractice Reform a Double-Edged Sword” – By Steven Jean and Kerry McIntosh – Aug. 20, 2009 – “http://abcnews.go.com/Health/HealthCare/story?id=8364959”). According to the ABC News story, “Some of the documents needed for the trial from the Centers for Disease Control have not been released due to privacy laws protecting medical service providers and health insurers.” It is the same Bad Faith cover-up, stonewalling mumbo-jumbo excuses routinely dispensed by the AMA (American Medical Association). These medical associations absolutely refuse to cooperate with patient efforts to research and assess the competency, skills, integrity and complaint history of its doctors. And these medical associations absolutely refuse to purge their ranks of known bad, incompetent physicians. If they WOULD purge their ranks, the malpractice insurance coverage for good, responsible doctors would be radically reduced.

    First off, reusing a medical instrument inserted into the rectal cavity, in violation of all medical protocols and procedures, is NOT negligence, it is “Depraved Heart Callously Reckless Indifference” driven by sociopathic penny-pinching greed. Most malpractice is traceable to such conduct (irresponsible cost cutting that shifts unreasonable risk to patient without telling them). Secondly, the target of Tort Reformers is “non-economic damage” awards which, contrary to reformers, are REAL DAMAGES. Consider a 30 year old Harvard Medical School graduate who has a family of five and a highly successful brain surgery practice, and his eye doctor ‘negligently’ puts battery acid in both his eyes, instead of boric acid (something as inherently stupid and negligent as reusing a colonoscopy syringe). How much is that surgeon’s “total loss of eyesight” worth? Considering the fact this surgeon had his whole life and career in front of him, and considering how inexcusably stupid, negligent and irresponsible the error was. But Nevada’s Tort Reform law says this victim’s eyesight is only worth $350,000 at most. YOU’VE GOT TO BE JOKING. All because the most powerful, wealthiest lobby on Earth, the Insurance Industry, wants higher profits. Why isn’t anyone asking, “Why is there so much negligence?” After all, litigation stops dead in its tracks when there’s no negligence.

    In response to the statement, “litigation stops dead in its tracks when there’s no negligence” most tort reformers argue, out of desperation, that frivolous cases with no merit would NOT be stopped even if there was no negligence and they claim the filing of frivolous lawsuits is such a serious problem that it accounts for most of the skyrocketing health care costs we see. The first way that even a novice observer knows this is false, comes by way of Tort Reform legislation itself. No Tort Reform legislation in this country addresses this point or even seeks to change anything in this regard, because it is NOT deemed to be a significant problem. You simply don’t win cases if there is no negligence, and even though reformers can’t figure that out, fortunately, juries CAN. Attorneys and plaintiffs are held liable for all costs and legal fees if a suit is “unfounded” or frivolous. In fact, even if they win, they can be held liable for all costs and legal fees if the award is close to an earlier defense settlement offer. Attorneys can be and are disbarred and\or heavily fined for filing “unfounded” lawsuits. And Attorneys and plaintiffs can be sued for vexatious litigation. The system has plenty of deterrents against frivolous lawsuits and they all work very effectively. Furthermore, because attorneys invariably take these cases on a “Contingency Fee” basis, they avoid weak or frivolous cases like the plague, because they get nothing if they lose. So the claim of frivolous lawsuits is a phony, redherring issue, designed to distract observers from the ‘real’ issue. And that REAL issue is, “If malpractice lawsuit payouts is the leading cause of skyrocketing health care costs as reformers claim, then — WHY IS THERE SO MUCH NEGLIGENCE? Why are there so many negligent, irresponsible doctors?

    A final point needs to be made about malpractice ‘litigation’ and how it is already severely tilted AGAINST the Plaintiff (victim). There is profound ignorance (and error) in the public’s understanding of malpractice litigation. It graphically illustrates the nature of the health care problem. At trial an attorney is NOT permitted to tell the jury that any awards they grant will NOT cover the victim’s legal fees (invariably 40%). The attorney can NOT tell the jury to remember to include or add on the victim’s legal fees to the health care costs. Not realizing that legal fees need to be added, the jury Invariably, looks at just the ‘actual’ medical expenses past-present-future and awards that amount only. If the plaintiff attorney tries to tell the jury to add the legal fees to the medical costs, a mistrial would be declared and the attorney would be punished and possibly disbarred. So the jury awards the plaintiff his ‘actual’ past-present-future medical expenses of $100,000, erroneously believing all medical costs will be covered. The lawyer takes $40,000 and the victim has a remaining $40,000 medical bill that he can’t pay. Because he can’t pay the medical bill he can’t receive any further medical care. Too many uninformed and misinformed so-called “reformers” are blowing misinformation out their tailpipes with no regard for the truth of the matter. The legal system is already heavily lopsided AGAINST the Plaintiff (victim). The bottom line, Tort Reform is a Trojan Horse With Bad Intentions. If you wait till your ox is being gored, you’ll find out the hard way. When people have their facts right, they invaribly oppose Tort Reform from the outset.

    To truly understand the REAL causes of skyrocketing runaway inflation in the medical field, one must examine the very nature and character of the medical profession. We know that where competition is strong and rigorous, this ‘competition,’ in and of itself, is highly effective in keeping costs low and within the reach of most consumers. The axiom in economic capitalism is: “Acute, strenuous ‘competition’ is good for the consumer and is essential to a healthy economy.” Conversely, another axiom embedded in capitalism holds that: “Where ‘competition’ is stifled or eliminated, the consequences are bad for the consumer and unhealthy for the economy. These are enduring axioms (truisms) that have long been recognized as forming the bedrock of a healthy, free and open structure of capitalism.

    THE NATURE & CHARACTER OF THE MEDICAL INDUSTRY

    Upon examination, it becomes immediately and unmistakably clear that in the medical profession, most of the “competition” has been stifled or eliminated entirely. Patent Laws are statutory devices intentionally designed to completely eliminate competition (Patent = Gov’t Granted Monopoly) for very long periods of time, ostensibly for the purpose of allowing inventors to recover the costs and expenses they incurred during the research and development of the patented invention. Nearly all of the equipment and technology in the medical profession is patent protected and is not subject to any competition whatsoever. As a result, medical facilities are paying outrageously HIGH prices for equipment and technology that is certain to become obsolete very quickly. This problem is immensely compounded by the fact that nearly all of the equipment and technology in the medical profession is changing so rapidly and so constantly, that the medical profession rarely, if ever, reaches a point where the patents have finally expired for the equipment and technology routinely used in providing medical services. Thus, without competition, the cost of this vital, life-saving equipment and technology has spiraled out of control at such a ridiculous, monumental rate, that it can only be described as “Extortion” … where the patient has a gun at his head … pay top dollar or forsake critical life-saving medical treatment. Consequently, doctors are frequently heard complaining about the outrageously HIGH, crippling “overhead” that doctors invaribly have. The overhead is many, many times larger and more onerous than more malpractice insurance.

    It’s yet another recipe for a “Perfect Storm” of skyrocketing prices in an unrelenting price-gouging rampage. The consumer-patient in this scenario is what is commonly called “a captive consumer,” meaning in most instances, the consumer-patient-victim canNOT “Opt-out” … canNOT decline the medical service and is NOT free to “leave” and shop elsewhere, where the medical service is indispensible to their health and survival, which is invaribly the circumstance. Shopping for a better price is a ludicrous notion, because there is absolutely NO “price competition” in the medical field, as everyone well-knows. It’s the perfect environment … the perfect “set-up” for an Extortion Racket. And that is exactly what we are seeing over and over again in the immensely lucrative Medical Industry.

    But this has only described the economic situation at the manufacturing level. Next we must look at the Health Care Provider level, where typically doctors and other investment entrepreneurs pool their resources together to purchase this enormously expensive state-of-the-art medical equipment and technology. These investors have calculated that their investment represents an extremely lucrative business opportunity, and this adds significantly to the formidable costs passed on to the patient, on top of the outrageous cost passed on by the manufacturer-patent-holder. Next we have to look at the operators of this enormously expensive state-of-the-art medical equipment and technology. The complexity of this technology requires extensive “specialized” education and training of the facility’s personnel — the operators. As consumers well-know, whenever one hears the term “specialized” one immediately knows that we are NOT talking about something that is INEXPENSIVE.

    This problem is compounded many times over again in the medical field, by the Pharmaceutical Industry, a vital component of medical services, where the vast majority of its products are “Patent Protected” and therefore NOT subject to the intensive competition necessary to keep costs down. And once again, the science and technology in the Pharmaceutical Industry is changing so rapidly and so constantly, that the medical profession rarely ever reaches a point where the patents have finally expired for the drug and the technology routinely used in providing medical services. Furthermore, whenever the patent comes close to expiring, the Pharmaceutical Industry coaxes Congress into “extending” the patent protection period and Congress (and agencies) dutifully comply with the request, to the patients’ detriment (always). Additionally, given the fact there has been a doctor shortage for a very long time in this country, one cannot, with a straight face, contend that there is any significant health care “pricing” competition or “price wars” among care givers. One never sees health care provider advertisements proclaiming “We are the cheapest in town” or “Super Savings Discount.” And so it goes. Layer upon layer of investment opportunists piling-on and further hiking the costs ever higher, secure in the knowledge that the consumer-patient at the end of the line has NO options when the technology is crucial to the treatment they need for health and survival. It’s a recipe for extortion. It contains all of the ripe conditions necessary for a “Perfect Storm” patient-consumer-victim price-gouging rampage, just like we have been seeing for the past 2-3 decades.

    Every American knows, with certainty, that whenever competition is stifled or eliminated, it is a GUARANTEED recipe for absurdly high, exorbitant, outrageous “artificially concocted” runaway inflation in costs which often puts the product or service beyond the reach of most consumers. There are many examples of this ‘absence of competition’ in our everyday lives and in each and every case, that ‘elimination of competition’ has resulted in a horrific, unjustifiable onslaught of never-ending skyrocketing costs and prices (Utilities, Gas & Oil, Insurance, Pharmaceuticals, Microsoft, and patent-protected state-of-the-art technologies)

    THE INSURANCE INDUSTRY FACTOR BREAKS THE BANK

    And we have only scratched the surface of the true leading, primary causes for the skyrocketing, runaway inflation in the medical profession. The Insurance Industry has played a major role in directly causing the skyrocketing, runaway inflation we are seeing in the medical profession (no coincidence that rampant skyrocketing, runaway inflation has long been the hallmark of the Insurance Industry). The entire issue of Tort Reform came into being because doctors had long complained, in vain, about the outrageous, unwarranted and never-ending escalation in their malpractice insurance premiums. The Insurance Industry blamed ‘litigation’ but refused to open their books so independent examiners could determine if the claim had any merit. All doctors in this country MUST have Malpractice Insurance before they can practice medicine in this country. This sets up yet another “Extortion Racket” in the Insurance Industry. Over and over again doctors have complained, ad nauseam, that their Malpractice Insurance premiums doubled or tripled or quadrupled for no identifiable reason, even though they have never been accused of any wrongful conduct. This is clear, unmistakable evidence that the Insurance Industry is taking enormous, unfair advantage of their pivotal position in providing the legally required insurance coverage.

    The insurance concept, like the bank-lending concept, was designed to spread the costs of “risk” according to the level of ‘risk’ which the insured (or borrower) represents. Thus, someone who has been driving for 35 years without ever having a traffic offense or an accident (low risk), should be paying much lower auto liability insurance premiums than someone who, for example, has had ten accidents and four DWI convictions in the past ten years (high risk). When you see unjustifiable, unwarranted huge premium escalation for someone who is known to be a low risk, you know immediately and unmistakably that the insurer is “extorting” those premiums solely because they know the physician (the Insured) MUST have that insurance coverage to practice medicine. When government bestows this kind of enormous “leverage” on the Insurance Industry it is a GUARANTEED recipe for extortionary pricing practices and spiraling, out-of-control exorbitant premium price-fixing with non-stop inflationary pricing. The immensely powerful Insurance Industry has managed, at each turn, to control the legislation (and the legislators) and defeat proposals which would have eliminated this intractable, profoundly lucrative practice.

    Once the TRUE leading, primary causes of these skyrocketing medical costs is revealed, it becomes painfully obvious why Tort Reform Legislation has totally failed to provide any significant identifiable RELIEF from the problems complained of, namely, the unrelenting astronomical upward spiral in the costs of medical care and medical services in this country. It is worth noting that the primary Tort Reform advocates are the Insurance Industry, the Pharmaceutical Industry and the AMA, i.e., the primary culprits, beneficiaries and causal agents in the unrelenting problem of skyrocketing medical costs. It is also worth noting that these three, individually, constitute the most powerful “lobbyists” in the United States, infinitely more powerful, in cash and influence, than any lawyer lobby group. And they have been enormously successful in influencing legislation and legislators who are shopping for a large dependable political and financial support base to bolster their political influence, power and their “re-electability.”

    TORT REFORM LEGISLATION IGNORES THE ACTUAL ROOT CAUSES OF PROBLEM

    Tort Reform Legislation hurts every patient and is extremely dangerous, not only because it fails to squarely address the TRUE causes of the problem, but especially because it removes the only patient protection there was to deter incompetence and the mal-practice conduct of medical providers in this country. The single-most important function of malpractice law in the U. S. has been to serve as a deterrent against outrageous, irresponsible medical conduct. Offenders were supposed to be carrying the financial burden of their misconduct. Repeat offenders were supposed to be carrying a much heavier financial burden for their misconduct or they were supposed to be expunged from the practice of medicine completely.

    Instead, what we now have in this country is an AMA that protects, shields and conceals incidents of malpractice; an Insurance Industry that has been granted a licence to extort outrageous unjustifiable price-gouging premiums with impunity; and a Patent Law system that perpetuates runaway skyrocketing inflation by effectively and completely eliminating the competition. Patients (via medical facilities) aren’t just paying “Top Dollar” for every single medical product and service, THEY’RE PAYING AN OUTRAGIOUS, EXORBITANTLY HIGH PRICE, a price so outrageously high that one ordinarily only sees such extreme price levels in “Extortion Schemes” and mob racketeering scenarios.

    See, “Hospital Accused Of Putting Patients At Risk To Cut Costs” (–ABC Wisconsin News Report–). This story serves as a recent graphic example of how the medical profession and hospitals like this one (Wisconsin Columbia St. Mary’s Hospital) go to extreme lengths in order to stonewall the public’s efforts to get full disclosure of hospital records about infection problems within hospitals. In fact, as this article illustrates, the medical profession has “lawyered-up” heavily and enlisted it’s powerful lobbyists in order to defeat federal legislation that would have “required” hospitals to maintain and report ALL incidents of hospital-born infections, including the super bug MRSA. The medical profession does not want the reporting requirements because it does not want to disclose “the truth” to the public about serious hospital problems which every public citizen is entitled to know BEFORE entrusting such institutions with their medical care. This article discloses the concerted, militant and obstinant determination of the medical profession to conceal incidents of malpractice and protect the offenders responsible. And that makes “lawsuits” the most reliable and effective means of getting “full disclosure” from the medical profession and of holding the medical profession accountable for irresponsible conduct. The medical profession’s iron-fisted non-disclosure policies also make “lawsuits” the most effective and necessary deterent there is for coercing the medical profession to act responsibly, by holding it responsible (and liable) when it fails to do so. As this article clearly illustrates, the medical profession would rather stonewall and conceal the Truth while protecting irresponsible incompetents so the bad practices can continue, than honestly disclose problems, terminate those responsible and correct unsafe, dangerous and irresponsible conduct. The medical profession vehemently opposes full disclosure and deterrent reporting requirements because then it can NOT continue its irresponsible malpractice policies “with impunity” and without dire consequences.

    THE REAL DANGER OF TORT REFORM LEGISLATION

    Tort Reform Legislation is extremely dangerous in the medical field because it puts extremely low limits on the total amount of damages a patient-victim can receive in litigation, even when the malpractice conduct is so reprehensible and outrageous and extreme, that no competent physician in the World would ever have engaged in such a practice. By putting extremely low limits on the total amount of damages a patient-victim can receive in litigation, Tort Reform Legislation has the direct intentional effect of making “worst case scenario” damage awards LOW and PREDICTABLE for insurance companies and for offenders who commit malpractice. Let’s take a look at the “consequences” of making damage awards PREDICTABLE and LOW.

    CASE IN POINT: FORD PINTO CRIMINAL CASE

    The criminal prosecution of Ford in the Ford Pinto case unmistakably demonstrates the dire adverse “consequences” of making damage awards PREDICTABLE and LOW. In the Ford Pinto criminal case is was established at trial that the vehicle was susceptible to a horrific, catastrophic explosion from even a low-speed (5-10 MPH) rear-end impact. Such an impact pushed the seam of the gas tank into the differential bolt, causing the seam to split, throwing gallons of gasoline into the passenger compartment and invariably resulting in the horrendous and gruesome loss of life from the resulting fiery explosion. Many lives were lost and severely damaged from just such accidents. Even a minor rear-end fender-bender was capable of causing this horrendous explosion.

    During the prosecution, it was also disclosed that Ford was fully aware of this defect and its potential prior to putting the vehicle on the market. Furthermore, it was disclosed that Ford executives sent correspondence to its cost engineers and design engineers asking them to investigate the problem and determine whether it would be cheaper to correct the defect and avoid lawsuits, or whether it would be cheaper to ignore the defect and take their chances with the inevitable stream of lawsuits that would follow.

    LIVES ARE EXPENDABLE – PROFITS ARE NOT

    The conclusion of Ford’s design and cost engineers was that it would cost about $7.46 per vehicle to correct the defect and make the vehicle safe. They further stated that, based on their calculations, it would be cheaper for Ford to simply take their chances with the inevitable lawsuits, rather than expend the $7.46 per vehicle to make it safe. And that is exactly what Ford did. They did NOT correct the known fatal defect, electing instead, to take their chances with the inevitable lawsuits resulting from the horrific deaths and injuries caused by this known defect (maybe they were immensely confident that their comrades in the Legislature would shield them from responsibility via Tort Reform legislation). For this reason Ford was criminally prosecuted.

    Many innocent lives were lost and destroyed as a result of the incomprehensibly horrific fiery explosions that were the direct result of this well-known vehicle defect.

    This gruesome example vividly illustrates two crucial points. It shows, with unmistakable clarity, exactly WHY offenders and their insurers want lower, more predictable ceilings on the damage awards a victim can receive. And it also graphically illustrates exactly WHY low, predictable damage award ceilings are profoundly dangerous and immensely adverse to the interests of the general public. With low, predictable damage award ceilings, cost and design engineers will nearly ALWAYS determine that it is cheaper for them to take their chances with inevitable lawsuits than to make their product safe. It’s just loading the dice in their favor before they “take their chances” with inevitable lawsuits. It stands as a compelling incentive for offenders to embed ‘defects’ into the product for greater profitability. With Tort Reform Legislation, cost and design engineers will nearly ALWAYS determine that it is “preferable” for them to unjustifiably put YOUR life and health in grave danger and at great risk, for no other reason than to increase profitability. And that is precisely what we see happening. Offenders are building “defects” into the cost and design of products, because they are no longer significantly liable for any dire consequences.

    When there is NO ceiling on the possibile money award an injured or wrongful death plaintiff-victim could receive from the offender, the potential payout canNOT be reliably calculated or estimated by insurance companies and offenders in advance. The offender and insurance companies canNOT assume it will be a low, nominal amount. When there IS a guaranteed LOW ceiling on the possibile money award an injured or wrongful death plaintiff-victim could receive from the offender, the potential payout CAN easily and readily be reliably calculated or estimated by insurance companies and offenders in advance. Once insurance companies and offenders know in advance that the consequences of their unlawful, grotequely unconscionable conduct is GUARANTEED to be “Nominal” at worst, all incentives for them to act lawfully, responsibly and conscionably are obliterated. This has been well-known by law enforcement and judges in the criminal justice system for centuries. The more severe the “consequences” — the more effective the deterrent. If a speeding ticket would only cost the offender a nickel fine, everyone would be speeding whenever they felt like it. It was the “uncertainty” about the potential “size” of the malpractice award amount that was the actual “deterrent” against unscrupulous conduct by prospective offenders. Tort Reform removes this deterrent … intentionally. With catastrophic consequences for the many patient-victims.

    Stated simply and succinctly, Tort Reform Legislation creates low, predictable damage award ceilings, which has the direct immediate effect of removing the incentives that there once were to motivate the industry to act responsibly and conscionably in designing products and services that are safe. In effect, Tort Reform Legislation creates an enormous INCENTIVE for industry to act IRRESPONSIBLY and UNCONSCIONABLY . . . because it allows them to do so with complete legal and financial immunity, and for no other reason than to serve the mundane objective to increase profitability.

    TORT REFORM LEGISLATION ENDANGERS THE PATIENT

    AND CODDLES THE CULPRITS

    When one considers all of the undeniable, formidable adverse factors and conditions intractably embedded in the Medical Industry it becomes unmistakably clear that “litigation” of malpractice incidents is NOT a “primary” or “leading” cause of skyrocketing prices in health care. It is facially obvious that “litigation” of malpractice incidents is NOT even a “significant” or “discernable” factor in the problem. The TRUE significant factors are invariably traceable to the most powerful lobby groups in the World and their militant determination to protect and preserve the enormous, outrageously lucrative profit-taking system they have enjoyed in the Health Care Industry for many decades. It is these mammoth, influential profiteering lobby interests that have virulently persisted in causing health care costs in this country to spiral out of control. “Out of control” because consumers-patients have been unable to weaken the immense political power and influence of these mammoth profiteering lobby institutions. “Out of control” because our governments and legislators have consistently refused to temper or diffuse the power and influence these enormous lobby institutions have exerted to rape, pillage and plunder the lucrative Health Care Industry and its patients and the government via Medicare and Medicaid.

    Make no mistake about how profoundly dangerous this Tort Reform legislation really is. Whenever you hear in the news that legislators are contemplating Tort Reform Legislation, make sure that you take the time to voice your vociferous, staunch disapproval of any proposals that fail to address the TRUE primary causes of the problem. Make sure that you take the time to vociferously express your staunch disapproval of any proposals that seek to erroneously blame litigation and malpractice “victims” for the spiraling costs of medical services. Make sure that you take the time to vociferously express your staunch disapproval of any proposals that seek to limit malpractice award amounts (lower ceilings) for malpractice “victims.” And be sure to tell them WHY. The life, health and safety for YOU and your loved-ones may hang in the balance.    (Must-read Articles on this Topic, “BP Memo Puts Price Tag on Lives –CNN Report–” and “The Malevolent Effort to De-regulate Everything – Removal of Gov’t Safeguards“).

     

    The Reflecting Pool Discourse Blog


     
  •    Why Should I Care if My Own Ox is Not Getting Gored?   

    Scales of Balanced Justice


    Why Should I Care if My Own Ox is Not Getting Gored?


    If you choose to accept, as a society standard, the mind-set of the individual who only cares when “his own ox is getting gored” — then DON’T expect anyone to care when YOU get gored and slaughtered within that same environmental framework of callous indifference.

    On the Serengeti Plains, the lion singles-out one zebra from a herd of many hundred, and the lion has his way with that lone zebra — BECAUSE the zebra herd does not realize that their strength in numbers could easily and decisively defeat a few attacking lions. The zebra is an incredibly strong, formidable animal. One zebra-kick to the head of a lion can be fatal. But because a zebra apparently lacks the cerebral resources to figure this out, he adopts a tunnel-vision policy of “every man for himself” and he simply does not care about the danger to all UNTIL he himself is getting thrashed and devoured. By then, it’s far too late to start ‘thinking’ about the “strength in numbers” safety of the herd concept.

    Humans, however, are credited with having far greater intelligence than the zebra. But if this assumption of superior human intelligence really is true, why does such a huge majority of human beings cling to a zebra-like tunnel-vision mind-set that says “I don’t care because my own ox is not getting gored?” It’s important that we understand “WHY” because this prevailing tendency is robbing humans of a tremendous, mammoth survival advantage that we would otherwise be enjoying as a species, to insulate humans rather securely from a torrent of life’s real dangers. WHY are so many humans surrendering or obliterating this enormous advantage?

    The answer is, quite simply, a grotesquely distorted, inaccurate perception of ‘self’ and of ‘other.’ The typical individual — commonly self-absorbed and drowning in his own ego — tends to harbor an acutely bloated, lofty, inaccurate estimation of his own wisdom and intelligence, while maintaining a typically low regard for the well-being and intelligence of ‘others’ — whom he staunchly differentiates from himself, as inferior. As a consequence, when such a bloated, dishonest egotistical mind-set encounters a “victim” he most often does NOT empathize with or identify with that victim because he erroneously perceives that victim as being an ‘other’ that is inferior to himself.

    Thus, such a dishonest superiority-plagued mindset assumes, without justification, that this inferior ‘victim’ probably caused his own demise and injuries by doing something ill-advised or stupid which no person of superior intelligence (like himself) would ever do. This rationale tries to justify this distinction between ‘self’ and the ‘other’ (victim) by reinforcing the bogus assumption that “I CAN help save ME by virtue of my superior intelligence, but I can NOT help save the ‘other’ (the victim) — precisely because of their profoundly inferior intelligence.” A compressed restatement of this sentiment would read: “You can’t save people from themselves – – from their own self-inflicted stupidity — so just focus on saving yourself.”

    Every victim will tell you that ANYONE can be a victim — even a brilliant, intelligent genius. The 9\11 World Trade Center victims and their families would tell you “they did not deserve that calamity — they did not do anything stupid or irresponsible to ’cause’ the misfortune inflicted on them.” The families and parents of the little children ruthlessly murdered in the Newtown school massacre know, with certainty, that those children did NOT do anything wrong, or stupid, or irresponsible to cause the tragedy inflicted on them while they were in their school.

    Only a LACK OF Intelligence and Honesty could produce such a “blame the victim” mind-set that doesn’t care until one’s own ox is getting gored. This lack of intelligence “blame the victim” mind-set is sociopathic — in the extreme, and it’s both dishonest and, ironically, self-destructive.

    Ben Franklin understood this when he said, at the signing of the Declaration of Independence, “We must all hang together, or assuredly we shall all hang separately.” In essence he was saying, “Don’t wait until your own ox is getting gored before you unify forces, because by then it will be too late.”

    Perhaps this typical self-centered tunnel-vision human condition is the natural extension of the national precepts embedded in the American bedrock concept of “Individual Rights” and its lopsided obsession with the supremacy of the individual right to the pursuit of happiness. If one is focused on the rights, interests and well-being of the whole collective of individuals in society — one is labeled a “socialist” or a “communist.” And if one is focused solely on the sanctity and supremacy of the ‘individual’ and his exclusive individual inalienable rights — one is labeled a good red-blooded American who is rightly embracing “The American Way.”

    And this lopsided militant obsession with the supremacy of “individual rights” further alienates us from the interests and concerns of the whole collective society because, as one might expect from a self-centered, narcissistic perspective, the individualist (typical libertarian) reverently worships the sanctity of individual ‘rights’ while militantly repudiating the notion of there being attendant, counter-balancing ‘responsibilities’ embedded in those ‘rights.’ For the libertarian individualist, more rights is ‘good’ and more responsibilities is ‘bad’ — as in anti-American — because it attaches a ‘burden’ to those rights — and self-centric Ayn Rand mindsets invariably demand a ‘free lunch’ — i.e. — something for nothing — i.e. — rights without attendant responsibilities. If you try to impose responsibilities on an individualist — expect to be labeled a socialist, a communist, and an unAmerican totalitarian dictator. Anyone who has ever raised a five-year-old is familiar with this mindset.

    What is missing is a primary and secondary educational system that accurately inculcates the bedrock American precept that ‘rights’ necessarily entail responsibilities — just as adulthood ‘necessarily’ entails responsibilities. We can’t go on enjoying the ‘no responsibilities’ childhood free-ride forever.

    Humans are blessed with a supreme survival advantage in this World – Intelligence – and we are squandering it and nullifying it on a mass scale, by allowing our acute, gargantuan narcissistic egotism to utterly distort and falsify our perception of reality, leaving us exposed with a soft vulnerable underbelly. Why aren’t logic and sound reasoning skills taught in elementary school, junior high and high school? Why do educators stress rote memory skills and the accumulation of ‘knowledge’ – as a database of ‘things’ knowledge, while utterly ignoring the logic and reasoning skills that are indispensable for disclosing the vital implications embedded in this database of ‘things’ we have knowledge of?

    Our educational teaching system is obsessed with giving us a torrent of ‘things’ to remember in rote fashion, as though a treasure-trove of trivia database facts is all we need – – – without teaching even the rudiments of logic or reasoning skills necessary to responsibly ‘process’ all that data. In so doing, humans are squandering and nullifying the greatest survival advantage we possess — Intelligence and Compassion.

    We continue to do this at our own peril. We cannot long endure if we continue to allow acute emotional egotism to trump reason and distort reality.


     

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