November 2005
Letters
Malpractice awards amount to a rounding error
I read Ron Ward’s article (“Initiative 330 — the Medical Malpractice Initiative,” Bar News, August 2005) with interest. Recently the Seattle Times carried an article reporting on a study conducted by the Johns Hopkins School of Public Health. It reported that medical malpractice costs account for less than one percent of spending, and the U.S., Canada, the UK and Australia all had malpractice payments that represented less than 0.5 percent of total health care spending.
Melvin Rubin, Kirkland
WSBA should stick to licensing and such
I write in response to Ron Ward’s editorial with regard to caps on medical malpractice awards. Someone always pays medical malpractice awards and settlements for general damages. The money does not come from the tooth fairy. Some of it comes from doctors who pay insurance premiums, some comes from patients, and the rest comes from the general public. Mr. Ward argues that the cost is not substantial enough to be a reason to cap damages. However, many doctors report refusing to practice or limiting their practice or leaving a jurisdiction because of the fear of med mal litigation. Mr. Ward does not talk about what the actual premiums are for different specialties, such as obstetrics. Our society needs doctors who are willing to go into business to help patients, and those doctors are thoroughly deterred by the need to pay unpredictably increasing premiums, combined with the risk that their practice may someday be nationalized anyway. This is not an environment that encourages doctors to practice medicine. As far as patients are concerned, which is all of us, the cost of insurance and medical care is already a crisis. It is said that General Motors is in financial distress partly because of the high cost of medical insurance. Mr. Ward’s malpractice lawyers add more, on top of the burden we all face in paying for health care for ourselves and others.
Mr. Ward makes the incredible argument that awards do not affect the cost of insurance. That is like saying that the cost of building a car does not affect the price of the car. Of course, award and settlement and litigation expenses come out of the revenue of the company. He also argues that caps make no difference. Caps obviously make a difference because they affect not only maximum verdicts but also the settlement of cases that never see a courtroom. They also affect the likelihood of difficult and expensive cases; if a case is questionable and expensive and not capable of bringing a huge return to the lawyer, it will not be brought. It may be that rates have not declined after caps were imposed, but that does not answer the relevant question of how high the rates would have gone had caps not been imposed. Obviously, other variables can and do affect litigation and insurance rates.
I therefore disagree that the cost of supporting medical malpractice lawyers is one easily borne by our society.
Second, many contingency fee lawyers believe or claim that they support a noble cause. Not so. Litigation is never a proper forum for setting social or legislative policy because courts are lobbied only by the two lawyers, and those two lawyers have an extremely limited range of interests. In the legislature, or in agencies, the decision makers are lobbied by all the public interests that care about a particular bill. Using an example outside medical malpractice, the legislature in considering whether to salt roads can hear from municipal and safety and environmental and business interests. In court, the judge hears only from two lawyers. I simplify here, and the legislative process is not perfect, but this system, representative democracy, is better than any other system devised to date.
There is little or no benefit to society in entrusting policy decisions to judges and plaintiff lawyers and insurance lawyers.
Third, the WSBA has no business entering a partisan issue in which Republicans tend to favor caps and Democrats oppose them. The WSBA is a regulatory agency, like the Department of Licensing, and it should remain neutral in political issues. It is disgraceful that the WSBA constantly becomes active in politics and frequently lobbies the legislature. The obligation to be neutral is even stronger because the WSBA is somewhat a subsidiary of the Supreme Court, and the Supreme Court, as a part of state government organized in a republican form with three branches — as required by the federal constitution — must remain neutral and detached in all matters. This includes medical malpractice cases and the desirability of asking the public to pay for general damages.
The WSBA should avoid involvement in political issues such as medical malpractice.
Roger Ley, Seattle
WSBA should sit on its hands
This is in regard to an e-mail from the Washington State Bar Association’s Board of Governors, indicating that it voted to take “no position” on I-336, but “opposes” I-330. In part, this letter cites to now former WSBA President Ron Ward’s recent article attacking I-330, which the WSBA has authorized and condoned as the WSBA President’s, and the WSBA’s.
The I-330/I-336 debate is a controversial and political one involving tort reform. I-336 has received the apparent support of those who sue and seek limitless recoveries against doctors and other health care providers; I-330 appears to have been supported by doctors, businesses and pro-business organizations, and even some lawyers who defend health care providers when they get sued. Sides are divided on the I-330/I-336 packages and debate.
Perhaps most WSBA members share the BOG’s views, and even Mr. Ward’s views on the I-330/I-336 debate. Perhaps most WSBA members are glad the WSBA has taken a stand. I am not.
In the past, WSBA members have expressed the view that the WSBA sometimes appears to embody an almost elitist perspective and fails to recognize the perspective of all of its members, especially those who do not happen to practice law in Seattle. Fair or unfair, such criticisms have root in WSBA membership’s compulsory nature.
By contrast, groups like the Washington State Trial Lawyers Association may be joined voluntarily. WSTLA is a largely pro-plaintiff organization that has undertaken a considerable campaign to oppose I-330. Some say WSTLA is responsible for the majority of money funding advertisements against I-330 to try to see its defeat. Mr. Ward is a WSTLA member, and so am I. It is wonderful that groups such as WSTLA so eloquently exercise free speech rights on important issues like this one.
The WSBA’s compulsory membership renders it significantly different from WSTLA such that it truly should not get involved in political side-taking on whether voters should vote for I-330, I-336, or neither. The WSBA’s proper role would be to encourage everyone to know the significance and consequences of votes on either I-330 or I-336. It could serve well to educate the public. But the WSBA should take affirmative steps away from, rather than toward, any particular personal or political view on the I-330/I-336 vote.
The WSBA should not be in the business of adopting personal or political views on items slated for a public vote, particularly when it seeks to do so on behalf of all of its members without all of its members’ consent. The WSBA and the BOG essentially adopted Mr. Ward’s opinions as the WSBA’s own on behalf of all WSBA members. Now the BOG has even gone to the length of contacting each member to urge Mr. Ward’s opinions on them. Many believe the WSBA should not have done that, and I am one of them. Many will say that they, as WSBA members, are offended that the WSBA has chosen to chime in where it should not have. They will say WSBA has no business in this I-330/I-336 issue, and that it is properly left to the people to decide.
All lawyers, as responsible members of a profession charged with furthering justice and fairness, should encourage fellow citizens to make intelligent, informed, and thoughtful decisions on such matters of importance as the I-330/I-336 debate. Individually, we each should exercise our free speech rights to tell people what we think of the proposals, and encourage others to do the same. Mr. Ward’s election to take sides is fine, of course, as long as he does so on his own and in his personal capacity. Mr. Ward’s article, however, may be construed as the WSBA’s stamp of approval of one side’s or another’s in a debate that should be left to the people.
Initiatives in our state lend themselves to the temptation to take sides, but sometimes side-taking is best left to ourselves as individuals and to groups like WSTLA and the Association of Washington Businesses. Sometimes it is hard to accept that education and understanding alone are the better course for groups like the WSBA. Just as judges sometimes exercise restraint in speaking out on certain issues, here the WSBA erred by refusing to resist temptation on this tantalizing issue.
As a result of the BOG’s decision to take sides, the WSBA will see an already festering problem worsen. WSBA members who previously voiced their view that the WSBA appears to improperly speak only for a few, not for all, will point to this as proof that they were correct. It would be of no moment if the BOG had even conducted its own poll for member views before it decided to take sides, because this was simply something the WSBA had no business taking sides on in the first place. The BOG should have known to avoid taking sides. It should have known to take steps to distance itself from, rather than authorize, condone, and embrace Mr. Ward’s personal views as those of the WSBA. It should have known Mr. Ward’s WSTLA connection may make the public believe the WSBA is beholden to WSTLA’s agendas, rather than to doctors wrongly sued.
The WSBA and the BOG made a serious mistake to take sides, and many may see that as a lapse in judgment or a failure of responsible leadership.
I again want to stress that I respect Mr. Ward and his views and I respect his right to say them.
Alan M. Singer, Seattle
WSBA should mind its business
On June 2nd and July 29th, the Board of Governors of the Washington State Bar Association formally voted to “oppose” passage of Washington Initiative 330 (sponsored by the Washington State Medical Association) and voted to take “no position” on Washington Initiative 336 (sponsored by the Washington State Trial Lawyers Association). Because these initiatives are emotionally charged and divisive within the Bar membership, the Board of Trustees of the Washington Defense Trial Lawyers (WDTL) urged the Board to take “no position” on both initiatives. The Board of Governors, citing GR 12, apparently felt compelled to take a position on I-330, voting unanimously to oppose it, with one abstention. WDTL is gravely concerned that the Board has taken a position on a controversial public initiative in the name of the entire Bar Association when it is clear that WSBA members are divided on the issues presented by these two competing initiatives.
In his article in the August Bar News, President Ward stated that “[f]ollowing discussions of the merits, the Board of Governors concluded that the elements encompassed in Initiative 330 are within GR 12, i.e., they relate to, or affect, the practice of law or the administration of justice, and that the WSBA could take a position on the initiative.” But his cite is to GR 12(c), which refers to what the bar association will not do. Specifically, GR 12(c)(2) provides that the Bar Association will not “[t]ake positions on political or social issues which do not relate to or affect the practice of law or the administration of justice.” It does not logically follow, however, that the Bar must take positions on issues that do affect the practice of law or the administration of justice. At best, this is the type of issue on which the Bar may take a position. Respect for the divergent opinions of the membership of the Bar Association should have dictated that the Board take “no position” on I-330 and I-336.
GR 12(a)(5) provides that the Bar Association strives to “[f]oster collegiality among its members and goodwill between the bar and public.” Taking a position on either of these initiatives satisfies neither of these goals. It is the specialty voluntary bar organizations that are better suited to take positions on controversial issues. The WDTL believes that as a compulsory membership association and integrated bar, WSBA should not offer its name in support of (or in opposition to) political issues that are ideologically and financially divisive to the WSBA membership.
These initiatives affect not only the tort trial lawyers of the state, but also those lawyers representing the business interests of healthcare providers, health services businesses, the insurance industry and ultimately the state’s taxpayers. A general position statement by the state Bar Association in opposition to the personal and professional welfare of many members and their clients should have been avoided.
The WDTL therefore believes the WSBA’s wisest course, and the only course consistent with GR 12(c), was to adopt a “no position” stance as to both initiatives. The WDTL requests that, in the future, the Board of Governors carefully consider any potential action or inaction in light of the entire text of GR 12, and in the spirit of representation of all lawyers of Washington state as an integrated Bar.
Washington Defense Trial Lawyers executive officers: Jill Haavig Stone, president, Tacoma; Steve Stocker, president-elect, Spokane; Ted Buck, secretary, Seattle; Richard Roberts, treasurer, Seattle
Diversity menu seems limited sometimes
Your July column on diversity (Editor’s Page, “Diversity — have it your way,” Bar News, July 2005), really hits the mark. The current touchy-feely politically correct proponents of diversity — come hell or high water — truly vindicate the old saying of the late George Orwell: “All people are created equal. Some are more equal than others.” It would be nice to see these current proponents rise to include those of us who are senior citizens who nonetheless ply our trade on a five-day-a-week basis.
Richard L. Gemson, Seattle
Shut up, the voters explained
In a frame on my wall is the following quote: “Majority rule only works if you are also considering individual rights. Because you cannot have five wolves and one sheep voting on what to have for supper.” Contrary to Mr. Ley’s assertion in his letter to the editor (Bar News, August 2005), the electorate cannot be the sole arbiter of individual rights, responsibilities and freedoms. Absent a judiciary to ensure no tyranny of the “wolves” those of us “sheep” can never sleep comfortably. Some attribute this quote to Larry Flynt during one of his legal struggles with censorship. I am not personally a fan of Mr. Flynt or his “body of work” but his struggles, and this quote, epitomize for me what Oliver Wendell Holmes, Jr. had to say about freedom and the role of the judiciary in protecting freedom: “If there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought — not free thought for those who agree with us but freedom for the thought that we hate.”
Wilhelm Dingler, Philadelphia, PA
Slippery slopes, skid row, and linguistic traps for the unwary
Thank you for the amusing and edifying article by Robert Cumbow (“got grammar?,” Bar News, August 2005). His discussion of the evolution of the expression “it’s all downhill from here” to mean the opposite of its original meaning put me in mind of the curious phenomenon of words that also mean their opposite. “Cleave,” for example, means both to cut apart and to adhere together (as in the traditional wedding vow where the bride and groom promise to “cleave” to one another.) My favorite in this genre of words is “sanction,” which simultaneously means to permit and to punish. Imagine my confusion when I receive a legal brief that exhorts: “the court should not sanction this type of behavior!”
Andrea Darvas, Judge, King County Superior Court, Seattle
And even further downhill
I really enjoy Robert Cumbow’s articles. I share his passion for precision in writing, albeit not quite to the degree or extent of his. A couple of thoughts occurred to me regarding his examples of how our language changes (“got grammar?,” Bar News, August 2005).
“It’s all downhill from here.” My experience has been that this precise phrase means exactly what it always has: the hard part of a task has been accomplished (we’ve reached the summit) and what is left is going to be relatively easy. However, a different nuance comes from: “It all went downhill from there.” This phrase, if used as one is describing an experience to another, is understood more in the sense of Mr. Cumbow’s “current” usage: “everything was fine until ___, and then it all went downhill from there.” This second sense, if intended to mean the situation deteriorated, usually is accompanied by the qualifying introduction suggested above. Notice, also, that in the first sense, the speaker is performing the action, so it can be inferred that the trip down the hill is volitional. The nuance in the second is that “it” went down the hill, presumably by itself and not by my choice; drawing to my mind the mental image of a Conestoga wagon breaking free and rumbling on down the steep slope to imminent destruction (not a good thing!).
The “carrot and the stick.” I have never understood that phrase to mean that the carrot was hung from a stick, although that may be the way Spanky and his Gang did it. As used in this phrase, the “carrot” has always meant a reward for good conduct (or agreement with my proposition) whether proffered by hanging on a string from a stick or otherwise, and the “stick” has always meant a punishment for bad conduct (or some sort of adverse consequences).
“Splitting the baby.” When I hear someone use this phrase, it is usually in relation to what they consider to be a bad decision entered or pronounced to resolve a dispute. Although I agree with Mr. Cumbow that, oftentimes in today’s vernacular, the speaker means that the decision simply divided in half the available resources or the requested relief. However, when I hear it, I always understand it to mean that, although both sides got virtually the same award, neither of them really “won” since the baby, obviously, died in the process. Sort of like a Pyrrhic victory.
Thank you, Robert, for your continued efforts to maintaining, or at least advocating, excellence in writing. After all, isn’t that what most of our jobs are about?
Ron Mattson, Renton
Just the facts, please
In her letter to the editor in the September 2005 Bar News, Jeanette Burrage says, “The Supreme Court of the United States ruled that government may ‘take’ private property for private use.” She is evidently referring to the recent Kelo v. New London case. I think it far from right that a former superior court judge and former candidate for the state Supreme Court should comment on a case without having read it. The majority in Kelo did not say government could take private property for private use. The majority in Kelo simply agreed with a Connecticut statute and a unanimous Connecticut Supreme Court that taking private property for economic development is a public use under the Fifth Amendment.
Burrage is entitled to agree with the four dissenters in Kelo, but to call the decision “bizarro” and assert the majority lacked “judicial integrity” demonstrates a lack of respect for the rule of law and promotes the continuing erosion of the institutions of democracy that have served us so magnificently for more than 200 years. These pages should be a forum for reasoned and principled legal analysis, not talk show, sound bite rhetoric.
Bernard H. Friedman, Olympia
Private lawyers not really needed, but thanks for asking
I applaud the Bar News for publishing Stephen Carpenter’s article, “Federal Criminal Practice: A Military Justice Primer” (Bar News, September 2005). Although the article contained some minor inaccuracies, it should raise readers’ awareness of the military justice system. I do however strongly disagree with a major premise of the article that there is a “large underserved uniform population” that “presents a great opportunity to expand a litigation practice.” Military personnel are represented free of charge at courts-martial by highly trained and dedicated Judge Advocates who work as defense counsel. To imply that uniformed personnel are underserved by these well qualified defense attorneys who have an intimate knowledge of the military justice system is grossly inaccurate. This statement also creates the false impression that the military system needs the assistance of civilian attorneys to represent this population. Unfortunately, in my many years of experience as a military prosecutor, military defense counsel and supervisor, far too often I have seen soldiers pay for inadequate representation from the civilian defense bar when they would have been much better served by a military defense attorney.
Victor Hansen, Lieutenant Colonel (Retired), Judge Advocate General’s Corps, Boston, MA
