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While the Legislature is in Session

On March 7, in the year 321, Roman Emperor Constantine the Great (they had great names back then) officially proclaimed that dies Solis Invicti (translated as sun-day) would now be the official day of rest for the Roman Empire. The history of Sunday. Officially to take a break from their work week. Not a warming story, because it connects to a wide range of legend and their worship of their sun god. (Wikipedia)

I mention that Sunday history as a backdrop to Thomas Jefferson stating his goal of government, “The whole art of government consists in the art of being honest“. I also like Mark Twain’s thought that “No man’s life, liberty, or property are safe while the legislature is in session“.

I suppose Twain would propose every day as Sunday for our government.  I also think that trying to briefly mention the current healthcare debate in this blog is much like another Twain saying, “A man who carries a cat by the tail learns something he can learn no other way”. So, I approach this topic of healthcare legislation in the most brief of ways! As they say… “Best to

I remember, while serving as a legislative aide for Congressman William Whitehurst, that he would always bemoan the fact that you never really felt like you were voting for a true bill to become law. What he would say is that Congress might start out with an introduced bill that he supported. Then, amendments would cause him to be against the bill. Then, the final wording of the bill would cause him to vote no, so he was really casting a vote of yes. See… that’s how legislation feels!

So, now my email in-box is being inundated with calls for action, for and against the Protecting Access to Care Act” (H.R. 1215) While it involves access to healthcare, it also limits damages in medical malpractice, medical products, and nursing home cases. It also effects responsibility involving joint liability. Then, top that off with limits for claims relating to economic and non-economic loss, capping attorney  fees, and prohibiting claims against health care providers in all product liability lawsuits. In short, removing responsibility.

What does that really mean? Well, while we watch Congress debate healthcare coverage, special interests are at work. They don’t care about coverage. They see this as an opportunity for reducing lawsuits and access to the jury system. More behind the scenes than on stage.

Rather than make this a treatise on tort reform that will put you asleep (if you aren’t already dozing), I just wanted to mention the adventures on Capitol Hill.  Unfortunately, the art of being honest seems to be a lost art. Sunday always is one day from Monday!

 

Instead, for pic o’ day, here’s another way of looking at the Health Care debate:

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Protecting Wrongdoers and Punitive Damages

     After a good weekend plus a Colts win, I usually stay away from negative. This time, I am getting something off my chest! 

     At the end of October, a group of distinguished lawyers, judges and law professors got together at the Homestead to discuss issues in the law. The group meeting is called the Boyd-Graves Conference.

     The background for the formation of this group is best said on it’s website:   “The Boyd-Graves Conference was created by the late Thomas V. Monahan, a former VBA president, who believed that civil practice in Virginia would be improved if lawyers with different types of practices, from all regions of the state, would meet and attempt to reach consensus about ways to improve the law.” It was formed in 1978 and has been very helpful in addressing question and needs of law and practice.

     This October meeting did make several significant recommendations. Then, the issue of Virginia’s laws regarding punitive damages immediately ran into a group obstacle.  

     Right now, Virginia has a state cap of punitive damages in the amount of $350,000. That means that if an entity, company or individual is found by a jury to have done or committed an act that is “willful and wanton”, which is worse than negligence. There are several legal terms for it, but basically it is willful and egregious conduct. It basically almost has to be intentional or just a disregard of doing what is right. I probably am not even describing the standard strict enough.

     Punitive damages are meant to punish the defendant; deter such future conduct by that defendant as well as others in the future;  and in doing so, protect the citizens of the state where the punitive damages are part of a verdict.

         I know I am getting too much legal stuff… but here comes the meat of my blog.

     The cap of $350,000 was enacted in 1988. If adjusted for inflation, the cap would now be approximately $677,000 without any real increase. Still, Boyd-Graves rejected any proposal to eliminate the cap or even raise it to a mere increase of $500,000.

     When you hear the term a “business-friendly” state, you assume that it is helpful to attract businesses to Virginia. In fact, it probably does. However, I really wonder if anyone really finds out what the state caps on punitive damages are, before relocating to that state. If they do, I don’t think that is really the kind of business that we should want to open up here. Instead, I would think that they are mainly looking for tax incentives. 

     I could get stirred up more about this. A business that generates billions in revenue can create a product that they know will kill Virginia citizens. Then, they know that they are only going to be punished in an amount of 350K maximum. It can be something added to their projected balance sheet.

     In past lawsuits, there have been many memos uncovered that showed businesses considering the expense of injury versus profit. Profitability… that doesn’t mean protection for Virginia citizens. To me, I don’t think that a business should be able to weigh its conduct against what the margin of expense per violation or lawsuit in punitive might be. Punishment should really be punishment. For most big businesses, 350K has no meaningful message.  I just thought that this is topical, with an election on Tuesday.

     For pic o’ day, I am posting one of my Dad on a recent vacation. It makes me smile. (Sorry Dad!!!!!)

The McDonnell Veto Part 2

     Some blogs that I start, seem to have the initial excitement of an Amish Prom. I never fancy my blog to be hard hitting journalism and I try to stay generally away from the real politics.

     I am just  following up on Part 1  to give you some McDonnell facts to consider, as to why he would veto a House Bill that was overwhelmingly supported by republicans, democrats, the medical and insurance industry, and trial lawyers. I present…. you decide. Hmm, that almost sounds familiar. 

     I don’t expect this blog to cause hot taut tears, like the ones that Mr Bundchen had, coursing down his cheeks, when he was drafted by the Patriots in the 6th round of the NFL draft.(Tom Brady Crying) (OK, my anti- opinion is coming out here about Tom Brady and the Patriots… just can’t heppp it!) See what I’m doing here. A little bit of bias against Tom Brady, as an example of  what might have caused the Veto.

     The American Tort Reform Association  (ATRA)  says on their website that they formed because   “We are the only national organization dedicated exclusively to tort and liability reform through public education and the enactment of legislation.”

     ATRA states that they “identify and champion elected officials and judges who want to fix the system”.  Their intent is to “stop regulation through litigation”.  Their President of this national organization, Sherman Joyce, is a Virginia licensed attorney, so he is well aware of the laws going into effect in Virginia.

     For argument sake, let’s assume that these goals sound OK on the surface. Unfortunately, anything extreme can be dangerous. By “fixing the system”, what they have shown by their actions is to get matters away from juries because those crazy runaway juries can be influenced by “snake oil salesman” with law degrees.

     It’s no secret that business suffers when they have to answer to regulations. They can’t dump where they want to; they have to seek approval and sometimes get turned down on drugs and products to market; and they are held accountable for representations that are made. Take it out of a jury’s determination and limit accountability, helps make better quarterly profits.

     So why would this somehow be related to Governor McDonnell’s veto. Well, look at the goals of this organization. Then, notice where they have given money for campaign contributions. Why would they want to “champion” his candidacy? 

     In 2005, the American Tort Reform Association gave a donation of 200K into an organization called the Virginia Conservative Action Pac  (VPAC). VPAC then endorsed Bob McDonnell for Attorney General and …… donated 200K to his campaign. One of my previous blogs outlined additional ATRA contributions to McDonnell, so let me move on to another consideration.

     Eli Lilly manufactured and distributed a drug called Zyprexa. Its purpose was to treat depression and, specifically,  schizophrenia. Its warning label did not properly list the horrible side effects such as diabetes and other related death causing issues, that were then treated and paid for by many Medicaid programs in each state.

     Separately, Eli Lilly paid over 1.2 Billion to resolve individual claims. Then, state Attorney Generals brought action to get monies back from their Medicaid programs.  West Virginia, as one of the smaller states, received 22.5 million back in its coffers. Even Montana received 13 million.

     In Pennsylvania where they were based, Eli Lilly paid a fine of 1.42 Billion for fraud charges that were brought by Prosecutors there, because of the marketing and false labeling. Again, this was totally separate from any payout for the civil suits brought by over 30,000 people that were prescribed the drug.

     Let me try to get to my point quickly, because I think you know where I am headed.  32  states and  the District of Columbia were also paid 62 million for the reimbursement of medical bills that were paid by these states, from the Eli Lilly conduct. Now, google “Virginia and Eli Lilly settlement” or anything like that with “Zyprexa” and see what comes up. (Waiting…Waiting) If you have clicked on the 62 million settlement and listing of states, you will also see Virginia not listed.

     In 2002, amid great fanfare, Governor Mark Warner announced 6 million of state money that was going to a new Eli Lilly plant in Prince William County.   In 2007, Eli Lilly stopped the expansion and operation and decided to go to Italy instead. No Warner parade over that one.

     What am I saying?  Our politicians usually are driven by money and their future plans. I’m suggesting that just as Bob McDonnell, as Attorney General, did not want to go after a pharmaceutical company for reimbursement to the state, he doesn’t want to be connected to any increase in a cap number; even when it makes sense for all sides and is agreed upon. This veto is a continuing trend.

     It took about 7 days to overturn his veto in the General Assembly. But,  he can now say that he voted against a cap increase. Plus, his past actions did not go after a Pharmaceutical company. By the way, look at the members of ATRA. Does it surprise you what I might suggest about the Big Pharma involvement?

     The mantra of politicians is that cap increases cost patients money; drive doctors from the state and drive up insurance costs. This comes straight from the politician campaign textbook. You’ll find others saying the exact wording.  However, you’ll never see statistics connected to that claim. Instead, connect the dots to campaign contributions for others that want to “champion” jury limitations and lack of Big Business accountability. 

     Someone is already probably getting his talking points together for his next campaign ad. He had to know that his veto was going to get overturned, didn’t he?

     I leave it to you to consider.     That’s just a taste of the trail of influence.  THE END.   I promise… No part 3

South Carolina Tort Reform

Several bills were introduced in  this South Carolina legislative session, that would put limits on lawsuits. Today, TheState.com reported that discussion on one of these bills was delayed. This website is from the largest paper in the state of South Carolina.  Here's what I read into the newspaper account as well as the legislation at hand.

The South Carolina Judiciary panel canceled a hearing on a bill (SB 350)  that seeks to broaden the  medical malpractice limits that were put into place in 2005. At the time, the basis for such caps and limitations related to the desire of encouraging reforms in medicine. Now, these same tort reformers want to extend these same limits to all civil actions. That's the boring legalese. Let's get to the meat of what it means.

Pain and suffering awards would be limited to 1 million. Punishment (Punitive) damages against large employers could be no more than three times the actual amount of the actual damage verdict or $250,000, whichever is greater.

 It's easy to see why the organization that calls itself the South Carolina Civil Justice Coalition, would be pushing for this legislation.  They claim an agenda to oppose legislation that increases litigation and costs to the business community and oppose legislation that is harmful to the legal climate.

 What that means is that there has to be limits as to how much a business should pay for harming someone, because paying money is bad for business. I even posted the website for this organization because I think that the more light that is shined on them, the more that sensibility will prevail regarding their actions against individuals.

This kind of legislation gets me keyed up. They claim that their organization is trying to make a difference in the climate of economic development deals within the state. I see it as putting profits over safety and knowing that, as a business, my exposure is limited.

If you tell Bill Gates or Warren Buffett that they will only have to pay one dollar, for every person they kill in South Carolina, you know that such legislation won't impact their conduct. That's because as indivduals, they know right and wrong and don't need a financial limitation for their wrongs.

Businesses and Publicly traded companies are tasked with one purpose: To turn a profit. They owe that to their shareholders. This legislation is basically saying, "Come to South Carolina because you won't have to fully pay for your harms".

One final note. If you click on the original article, you can scroll down to read the comments. One is supportive of the malpractice caps because "Doctors aren't perfect but they are more qualified than you and I to treat the sick people". How can you argue with that?

Another comment indicates that for the jury system to work it "needs to be made up of professionals". Another indicates that such legislation should be considered because "the jury system is broken". One poster wisely asks the question of "why hasn't my health insurance premiums gone down since this 2005 law?" I guess we need to ask that question to the Civil Justice Coalition. Of course, there is nothing in their website about helping the individual.   

  

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