I'll always remember the time my sister went on a school field trip to see "Romeo
and Juliet" at a theater in Medford, Oregon. Even though the movie was playing just a
few miles down the road in Central Point, the theater in Medford was considered the nicest
theater around, so it made the trip a little more special.
I also remember my mother receiving the phone call telling her that my sister had been
injured. It seems that she went along with a group of other kids who sneaked out of
the movie while it was playing. They went out a fire exit which led to a landing
outside the building, which gave them access to the fire escape to the ground some two
Only problem was, my sister got her foot caught in the mesh of the fire escape steps,
fell and sprained her ankle.
For weeks, I listened while my mother got call after call from insurance companies and
the theater, who were obviously practically begging her to take $100 to cover medical
expenses and "pain and suffering".
Over and over again, I heard her tell people that it wasn't their fault that my sister
did something she knew she wasn't supposed to do.
One day, someone must have told her something to the effect that at this point, it
wasn't about my sister, it was making sure, on the record, that they could show that they
did everything possible to care for my sister in case a law suit was ever filed.
So, they sent her a check for $100. She added up the medical costs for the
sprained ankle, kept that amount, and sent them a refund check for the difference.
That was in 1969. I can only imagine how much money would have been exchanged in
the same situation these days. And why. (These days, the typical award would be
three times the actual medical and related expenses. 1/3 for the actual expense, 1/3 for
"pain and suffering", 1/3 for the lawyer.)
These days, it seems that law suits are an automatic reaction. A chain reaction,
really. We have been trained to believe that our recourse to the actions or
negligence of others is measured by monetary rewards and awards.
Even more, many companies find it more profitable to force people to sue them. These
people very often do not have the money to hire lawyers and don't stand a chance without
one. So, challenges to denials of service are dropped. It's part of the strategy.
Some people believe the answer is to limit awards to plaintiffs in civil cases,
particularly in medically related cases, primarily to control spiraling insurance costs. I
understand this point of view, though I disagree. It simply does not reflect the
free-market economic theory we have been persuaded to go along with.
It will seem as though I am singling out the medical insurance industry. I am
not. However, the pattern I want to distinguish seems most visible in the medical
insurance industry. And, I have great concerns about the direction we're taking
regarding what I consider to be a human right, and that is the universal access to health
I am also concerned at the public assertions, the propaganda campaigns, aimed at
demonizing lawyers for the excesses in our legal system. To do so is to simply
ignore the root causes of a litigious culture.
Root Problems, and Free-Market Economics Applied
I was watching CSPAN's coverage of the House Appropriations Committee the other day.
One Representative was given the floor and said "I began life as a Republican, and
then learned to read, and became a Democrat".
A few minutes later, another representative took the floor, and stated "And then I
learned to count, and that's why I became a Republican."
Here's what doesn't add up. When you read this, you'll become a Democrat again.
In a true free-market system, everything becomes controlled not by regulation, but by
supply and demand, and ultimately, the ability to make a profit.. The idea is that
consumption, or lack of consumption, will force companies to adapt strategies and products
and, thereby, compete for sales.
In the area of health care, many of the awards by juries that are labeled as
"excessive" awards are actually nothing more than free-market economics at work.
The applied theory would suggest that the indignation and outrage being expressed
by the jurors when they make those "excessive" awards is a natural supply and
demand response. Remember, jurors are citizens like you and me who have to deal with all
the same frustrations and injustices that occur in our daily lives.
In other words, what has occurred in the history of medical awards would suggest that
the citizens are not happy with the supply side, and are expressing their opinions with
ever-increasing awards as if to collectively say "if you won't adapt your practices
in a way that actually provides us with value for our insurance premiums, then we will be
forced to sue you for those services and do so in such a way that it is no longer
profitable for you to ignore us." Another way to say it might be "We're mad as
hell and we're not going to take it anymore".
That's true free-market economics at work. It's not because of lawyers abusing
the system or opportunism. The truth is, every case with merit won by an attorney
should actually be considered a victory for free-market economics.
Why? Because these law suits have taken the role of enforcing liability and
responsibility, and have, in fact, replaced the Democratic checks and balances that used
to be applied through legislated regulation.
And now, two questions that once again point to the fact
that we have been sold a bill of goods on free-market economics and de-regulation.
It's the difference between what we're told, and what is
actually happening. It's about the difference between honoring the intent of the law
or the letter of the law.
Why is it that regulation is being removed from
corporations, but the rights and remedies of citizens are becoming more and more
And, how does this apply to the phrase "The rich get
richer, and the poor get poorer"?
As HMO's and managed care organizations close more clinics and small practices,
consumers have been funneled into the private health care system in a way that makes it
very difficult, and very expensive, to obtain comprehensive health care unless you are
part of a managed care system, and are willing to accept the limitations of the coverage
Furthermore, legislation regulates the consumer's right to sue the insurance provider
or to appeal methods of health care (by that, I mean things like being able to appeal a
course of treatment for cancer, or the formularies that cause doctors to prescribe drugs
based on the insurance companies' ability to purchase less expensive drugs instead of
prescribing the one that has been deemed most effective).
Then, I look at all the incredibly great research going on in the area of DNA.
That makes me think about the implications of this finding in November of 2002:
It was determined that a DNA test is now available which can identify those women who will
not respond to treatment for breast cancer.
Given the history of insurance companies that give priority to cost effectiveness over
quality of treatment, or even allowing treatment, I do not see the so-called free market
system being being applied.
There is nothing "free-market" about it. Nor does it reflect a government
serving the interests of its citizens. In essence, they are being provided with
legislation that allows them a monopoly - no competition - and with little reproach.
In the context of lawyers and our judicial system, it could easily be argued that
lawyers are truly the citizen's last line of defense in what became an economic war in
lieu of personal and commercial integrity.
At the same time, it is also true that people and companies use litigation to use
economic proessure to win a case or bankrupt an adversary.
The lawyers did not create the system. They are required to work within it. The
law has become a system that I really believe is not about the rule of law, but the
loopholes of law that allow opportunists to abuse the law.
Lawyers did not create the reasons to pursue law suits. Law suits are often a
response to social and cultural conditions that require people to take action or coerces
them to simply accept detrimental effects.
Litigation could be reduced by honoring the actual intent of the values we claim as a
nation. It would require the checks and balances of government to legislate and regulate
in a way that acknowledges certain truths about human nature, as well as a reclamation of
personal and corporate integrity which has been replaced by pressures to enhance a bottom
line, and pressures to "go along" with practices and policies that are wrong in
order to fit in and to "get ahead" in the long run.
Blaming lawyers for a litigious culture is simply mis-direction to cover the fact that
impropriety and injustice causes litigation, and that such impropriety and injustice is
actually occurring and needs to be challenged.
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(C) 2002,2003-2009 Charles Rehn Jr IV All rights