Litigation in America

Today's Washington Post features an op-ed piece from George Will on litigation in America, and many of Will's points are well-taken. The examples he cites to show how frivolous litigation can grind normal human behavior to a halt are apt: teachers who are afraid to touch students even under urgent or the most innocent of circumstances; playgrounds stripped of the equipment that made them fun after inadequate supervision suits; a ban on running at recess.

But Will overlooks--whether innocently or intentionally--the real culprit in these cases. It's not parents who sue the schools when their children get hurt in ordinary accidents. It's not schools acting to protect themselves from litigation. It's insurance companies. And, unfortunately, the role that insurance companies play in such cases is generally invisible to the public. "Litigation happy" citizens take the blame. The court system takes the blame. But let's consider the anatomy of these cases:

A child is injured on the playground. The parents take the child to the doctor, and the doctor's office submits the bill to the child's medical insurance carrier. A week or two later, the parents receive a letter from the insurance company saying that they can't make a determination as to whether or not they should pay it, because it appears that there might be third-party liability. In other words, the insurance company isn't going to pay the medical bill if they might be able to pin it on the school. The parents then have to complete a form describing exactly what happened, so that the medical insurance company can decide whether or not someone else should be responsible.

Ironic, isn't it? The same medical insurance companies that tell us every day--that spend hundreds of millions of dollars telling us--that litigation is driving their costs up and making them overcharge us and our physicians have to put the brakes on to determine whether there might be someone else to sue.

If and when a lawsuit is filed, the actual defendant has little power over what happens next. For example, Will cites a case in which a teacher placed a restraining hand on the back of an unruly 7th grader and the school district was sued for $17 million and settled for $90,000.

If, in fact, all the teacher did was place his hand on the student's back, why did the school district settle? Of course, I'm not privy to the details of this particular case, but I can tell you how it goes in most cases. The school district has an insurance carrier. It's really the insurance carrier who is on the hook for the payout, and the insurance carrier's attorneys handle the case.

Now, if you were an individual--say, a teacher accused of abusing a student--you'd probably fight tooth and nail to clear your name, to keep that cloud from tainting the rest of your career. But the insurance company needn't concern itself with that sort of thing, and doesn't. The insurance company crunches the numbers and determines that it's less expensive to settle the case for $90,000 than it would be to go to trial and win--and so it pays up. The accused teacher has no say in the matter; the school district itself has very little.

And then the insurance companies come back out to the public with sad stories of how much these silly lawsuits are costing them, and how they're forced to raise prices. Because it's more cost-effective for them in the moment to hand out the cash, they create the precedent that invites lawsuits like this to move forward--as Will said himself, the case settled. SETTLED. Not the result of a rogue judge or a runaway jury, not the result of a slick lawyer playing the sympathies of the good people in the jury box--a conscious decision by the insurance company to maximize profits this quarter and the future be damned.

More on why access to litigation is critical to your safety as an American here: Corporate America Doesn't Care if You Die

The Most Successful Lies of All Time - # 1

That's not # 1 as in "this is the absolute most successful lie ever". It's # 1 in the Most Successful Lies series. This series has the unfortunate potential to run indefinitely, so I've decided against ranking.

The successful lie I want to talk about today involves the infamous McDonald's coffee case. You probably remember it, even if you weren't born or weren't old enough to understand what was going on when it happened. And if you DO remember it (or heard about it later), you're probably rolling your eyes about now and remembering how some lady CLEANED UP when a jury awarded her millions of dollars 'cause she spilled her coffee in her lap while she was driving and it was--surprise, surprise--hot.

Please understand that I speak with the highest degree of professionalism, both as a writer and as an attorney, when I say: NUH UH!

Didn't happen like that.

What do I mean? A lot of things, and I'm not going to go into a lot of detail because I've already listed the most critical points here: That McDonald's Coffee Thing is Still Bugging Me

Just a few points, though, in passing:

• She didn't get millions of dollars;
• She wasn't driving;
• She had third degree burns over 16% of her body;
• She'd offered to settle for $20,000

If you want to see the really good stuff, you'll have to read that other post, but before we move on to the politics of lying, let me leave you with this question: Can you really put a price tag on skin grafts to your genital area?

That's what I thought.

Now, it's not unusual for mainstream news outlets to get the details wrong when reporting on a court case. There are a lot of technicalities involved, and sometimes the finer points are lost. Sometimes the outcome is reported correctly, but the reporter didn't fully understand the reasoning behind the outcome. Sometimes a word means something entirely different in the courtroom than it means in everyday parlance.

None of that happened in this case. The misinformation about the McDonald's coffee case--misinformation that made such an impression that it's still being mentioned today in support of tort reform and as evidence of our "lawsuit happy" society--was absorbed directly from the misinformation machine that is the insurance lobby. It was perhaps one of that industry's greatest accomplishments that a case in which a woman received fair compensation ($640,000, not millions) for serious injuries (3rd degree burns over 16% of her body, including her genital area) sustained through the fault of a large corporation (McDonald's admitted at trial that it knew that there was a burn risk in serving food at more than 140 degrees, but that it had nonetheless chosen to serve coffee at between 180 and 190 degrees, knowing that liquid at that temperature could not safely be consumed) stands today in the minds of most Americans as a ridiculous abuse of the system.