HOW TO BUY YOURSELF IMMUNITY FROM LAWSUITS.
SO YOU CAN MAKE YOURSELF IRRESPONSIBLE AND UNACCOUNTABLE.
Herb Denenberg, Column for week of August 21, 2000.
If you owned a business, how would you like to be immune from lawsuits? How would you like to stop worrying about certain kinds of lawsuits and to save money on your liability insurance? It sounds too good to be true, but it is available to all those who can afford it.
Where do you buy that miraculous insulation from lawsuits? You go to your state legislature or to Congress and ask for special legislation to protect you from certain kinds of lawsuits. Of course, itís expensive and takes a few platoons of lobbyists and a few bushels full of campaign contributions. But itís done all the time by major industries and organizations. One advantage of a legislative body is that it can customize almost any law needed by campaign
contributors. In other words, as with many other commodities, you can get almost any law you are willing to pay for and can afford.
How do you sell such a seemingly unjust and unfair idea? You speak in terms of tort reform and claim you area stopping a scourge of phony lawsuits and fake claims. You may also have to hire some law professors to write law review articles about the need for this kind of reform, and you may even have to carry on a national public relations campaign to convince the public that itís a good idea to give up their access to legal remedies. You can also claim such special treatment of lawsuits is necessary to maintain competitiveness in other countries and states. It can also help for insurance companies to create phony shortages of insurance which can be blamed on the legal environment. You can also find companies, bankrupted as a result of lawsuits claiming damages for their dangerous and defective products, who are more than willing to blame the legal system.
In case you need an example, let me remind you of a subject of one of my recent columns, on a law in Michigan that prevents patients from suing drug companies when they suffer injury or death as a result of a prescription drug. There is another one of these goofy laws that prohibits lawsuits against the manufacturers of small aircraft that are more than 18 years old. You can find some kind of special protection for all kinds of groups. There are also broader laws that apply to almost all kinds of products or a broad class of lawsuits, such as medical malpractice. Most states have passed some form of tort reform in the last 20 years, and there is still heavy pressure for more. Tort reform is a continuing political issue and is now center stage in the presidential election.
Of course, there is the possibility of tort reform actually designed to improve the administration of justice, but it is usually just a code word for denying justice to the victims of unsafe and dangerous products and services.
One example of a group allowed by law to be totally irresponsible is the HMO industry, which usually cannot be sued by their members for their negligence and wrongdoing. Specifically, the immunity is granted by a federal law to health benefit plans provided by employers or unions and the HMO or other managed care organizations that sell or administer them. That is part of the great debate over a patientís bill of rights and over the regulation of HMOs.
The injustice of that outrageous immunity granted to HMOs was brought into focus again by a recent decision of the US Supreme Court, Pegram v. Herdrich, handed down on June 12, 2000. The HMO patient went to her doctor complaining of stomach pain. The doctor found an inflamed mass in her abdomen and ordered an ultrasound exam to be performed eight days later at a hospital 50 miles away. A local hospital could have done it right away. Now you probably know what happened without being told. Before the eight days had passed, the patient was rushed to a hospital for emergency surgery after appendix ruptured and caused peritonitis. She sued her HMO, claiming it created incentives to deny treatment. The HMO was owned by the treating doctors who profited as stockholders by cutting the cost of medical care delivered to HMO members. The patient lost. She not only lost, but had to wait for nine years while her case worked its way up the judicial ladder, finally producing the Supreme Court decision. The full complexities of this decision are discussed in an article in the New England Journal of Medicine by Wendy K. Mariner.
But complexities shouldnít prevent us from putting some justice back into the HMO arena. We should get back to basic principles and make sure everyone -- HMOs, drug companies, small plane manufacturers, etc. -- is responsible when there negligence or wrongdoing causes injury to others. We should make sure that industries stop bribing Congress and state legislatures into giving them special exemptions from legal responsibility for their wrong doing.
We should also keep in mind some of the leaders in the battle for tort reform -- the tobacco companies, the drug companies, and the makers of many other products that often turn out to be dangerous and negligently produced and sold. We should also keep in mind the great statement of Lord Acton -- power corrupts, absolute power tends to corrupt absolutely. And when power is not accountable and not subject to lawsuits, it corrupts absolutely and almost inevitably. The victims of HMO abuses are the leading expert on Lord Actonís dictum.
(Herb Denenberg is a former Pennsylvania Insurance Commission and consumer advocate.).