Nevada’s crisis in medical malpractice liability is an extremely serious matter. The public health itself is at stake, because of the doctors we’re losing and the impact of that fact on health care access.
Still, even within this grim context, it is fascinating to watch the trial lawyers maneuver. You can almost see their dorsal fins, cutting through the bloody water.
Just kidding . . . sort of. The fact is, the plaintiffs bar here in Nevada is responding to the state’s liability-law crisis by confirming the very worst stereotypes of the profession: calculating, manipulative and disingenuous.
Time and again, when U.S. newspapers telephone the local tort lawyers’ spokesmen, what the reporter hears is the same ol’ song—clearly read from some talking-points advisory. “Don’t mess with the way we’ve rigged the legal system,” is a free translation of the first verse, followed by a quick chorus of, “It ain’t us; it’s them greedy insurance companies.”
Thus, in April, a Nevada Trial Lawyers Association spokesman publicly called on state lawmakers to refrain from “overhauling a civil justice system that is the cornerstone of American democracy.”
He should have said was a cornerstone of American democracy. As all attorneys know, civil justice law, in the last 40 years, has been turned inside out. Majestic and wise precedents of the common law that in the past advanced civil society and freedom of contract have, in America, been completely subverted. As scores of researchers have documented, we are all now subject to a tort law system that has been optimized—either consciously or unconsciously—to increase the wealth of lawyers. The substantive rules are extraordinarily pro-plaintiff, and the perils of massive damages are astonishing. This induces plaintiffs to bring countless lawsuits, and defendants to defend themselves to the death. One could not conceive of a system better designed to generate employment for trial lawyers. But of course, in effect this system was designed by trial lawyers—venue-shopping trial lawyers. Over recent decades they went out and located judges who would scorn existing contract law and turn almost any alleged grievance into grist for the tort lawyers.
The point is, despite humbug from Nevada’s trial lawyers, America’s legal liability system has been broken for a long time. Indeed, Congress itself implicitly admitted this following September 11, when it set up an alternative to the tort system to deal with the suffering from the 9-11 catastrophes.
Noted Roger Parloff, writing in American Lawyer, “Both parties revealed what they really thought about our tort system in their heart of hearts.” It was that, if not stopped, demagogic tort lawyers would soon be parading sympathetic victims before juries, and shifting blame for the catastrophes away from the judgment-proof federal government and onto minimally blameworthy but solvent targets.
Both Democrats and Republicans recognized, says Parloff, that America’s tort lawyers could end up bankrupting everyone in sight—the airlines, the private security firms, the airports, the cities that operate those airports, even Boeing Corporation—and in so doing, creating new waves of innocent victims, including the employee-shareholders of those industries, and the residents and taxpayers of a bankrupted New York, New Jersey and Boston. Much better, Congress decided, to just discard the tort system that the plaintiffs bar has foisted upon the country.
Unfortunately, here in Nevada we are currently still stuck with that system, and the trial lawyer association is working hard to head off any real reform. Their spokesmen spread misinformation, touting a “study” by the Center for Justice and Democracy, which they call “a nonprofit, nonpartisan public interest organization.”
In actuality, the CJD is the policy attack-dog of the trial lawyer industry; it was formed specifically to fight tort reform. The “study” in question cooked the books—ignoring years where the data proved the authors wrong. And note the CJD’s biased definition of tort reform: “laws that restrict the rights of injured consumers to sue and obtain compensation from corporate lawbreakers and other wrongdoers.”
The truth is that America’s legal liability system is today so damaged that even many trial lawyers recognize the necessity for reform. Otherwise, they know, men and women in the future who truly are injured will not be able to get compensation from those truly at fault, because whole sectors of the economy will be bankrupted.
The people of Nevada need a way to weed out the frivolous claims that have driven insurance costs through the roof. The people of Nevada need tort reform.
Steven B. Miller is editorial director for the Nevada Policy Research Institute.