April 20 roundup is a post from Overlawyered - Chronicling the high cost of our legal system

Somehow it didn’t sink in until I read this excellent investigation in Forbes by Stuart Taylor, Jr., the distinguished commentator and journalist now associated with the Brookings Institution. Because almost any cause arguably advances health, the administrators end up with close to unlimited discretion as to how to spend the money, which results in the usual array of goofy-sounding grant activities ranging “from ‘pickleball’ (a racquet sport) in Carteret County, N.C. to Zumba (a dance fitness program), kayaking and kickboxing in Waco, TX.”

It’s tailor-made for log-rolling and rewarding local friends, but the dangers go beyond that. In particular, as outraged Republicans from Fred Upton (R-Mich.) in the House to Susan Collins (R-Me.) in the Senate have been documenting, large sums from the program have been devoted to the purpose of lobbying for the passage of legislation at the local and state level — notwithstanding specific statutory language making that an unlawful way of spending money raised from federal taxpayers.

To quote Taylor:

* In Washington state, the Prevention Alliance, a coalition of health-focused groups, reported in notes of a June 22, 2012 meeting that the funding for its initial work came from a $3.3 million Obamacare grant to the state Department of Health. It listed a tax on sugar-sweetened beverages (SSB), “tobacco taxes,” and increasing “types of outdoor venues where tobacco use is prohibited” as among “the areas of greatest interest and potential for progress.”

* The Sierra Health Foundation, in Sacramento, which received a $500,000 grant. in March 2013, described its plans to “seek local zoning changes to disallow fast food establishments within 1,000 feet of a school and to limit the number of fast food outlets,” along with restrictions on fast food advertising. A $3 million grant to New York City was used to “educate leaders and decision makers about, and promote the effective implementation of. . . a tax to substantially increase the price of beverages containing caloric sweetener.”

* A Cook County, Ill. report says that part of a $16 million grant “educated policymakers on link between SSBs [sugar-sweetened beverages] and obesity, economic impact of an SSB tax, and importance of investing revenue into prevention.” More than $12 million in similar grants went to groups in King County, Wash. to push for changes in “zoning policies to locate fast-food retailers farther from . . . schools.” And Jefferson County, Ala., spent part of a $7 million federal grant promoting the passage of a tobacco excise tax by the state legislature.

These aren’t isolated flukes: they look very much like the normal and planned operation of the program. A $7 million grant to activists in the St. Louis area went in part toward lobbying for the repeal of a state law barring municipal tobacco taxes. The Pennsylvania Department of Health reported on how it used a $1.5 million federal grant: “210 policy makers were contacted . . . 31 ordinances were passed . . . there were 26 community presentations made to local governments .. . and 16 additional ordinances were passed this quarter, for a cumulative total of 47.”

This is outrageous. Congress has enacted and reiterated the ban on lobbying with federal funds because of the obvious unfairness of requiring taxpaying citizens to support political efforts of which they disapprove. Now a combination of the most politicized sector of public health activism (which likes to dictate how people live) and a cross-section of the local political class (which likes to find new ways of raising taxes) is getting massive federal subsidies to pursue such lobbying, often on a scale that can bulldoze disorganized local opposition. If you were wondering why some bad new ideas for local legislation (e.g., zoning to keep fast-food restaurants out of big-city neighborhoods) seem to be everywhere despite a tepid level of voter enthusiasm, now you know. You’re paying for them to be everywhere.

I joined host Ray Dunaway on Hartford’s WTIC this morning to talk about the issue.

P.S. Thanks to commenter gitarcarver for pointing out this April report on the problem by the investigative group Cause of Action. (& David Catron, American Spectator)

Outrageous: how an ObamaCare slush fund pays for nanny-state lobbying is a post from Overlawyered - Chronicling the high cost of our legal system

Whatever the number, surveys of doctors and anecdotal evidence — even allowing for self-serving exaggeration — suggest that the occurrence [of defensive medicine] is high. A stunning 93 percent of Pennsylvania specialists in high-risk fields admitted practicing defensive medicine, according to a 2005 survey by the Journal of the American Medical Association. So did 83 percent of high-risk specialists in a 2008 Massachusetts Medical Society survey. That study also found that respondents’ fear of liability accounted for almost 30 percent of the CT scans and MRIs they ordered and had spurred 28 percent of them (including 44 percent of OB-GYNs) to avoid treating high-risk patients. …

Similar considerations explain why we already have specialized courts without juries for vaccine liability, workers’ compensation, bankruptcy, and tax cases.

(cross-posted from Point of Law)

“Wasting Billions, Doing Injustice” is a post from Overlawyered - Chronicling the high cost of our legal system

One of the most dedicated enthusiasts for such trials is attorney/controversialist Scott Horton, who writes at Harper’s and Balkinization and is an adjunct faculty member at Columbia Law School; after noticing how often Horton’s output seemed to be in need of fact-checking, I spent a few minutes just for the fun of it stringing together a sampling of such instances which appears here (scroll).

War crimes trials? No thanks is a post from Overlawyered - Chronicling the high cost of our legal system

Duke rape claim: the Times’s sorry showing is a post from Overlawyered - Chronicling the high cost of our legal system

According to Newsweek, the young man at NCCU [North Carolina Central University] said that he wanted to see the Duke students prosecuted, “whether it happened or not. It would be justice for things that happened in the past.”

(“The Biggest Scandal in the Duke University Rape Case”, syndicated/Capitalism Magazine, May 17). The comment was hardly representative of anyone’s views but the one student’s, though, contends John Schwade in the Durham News (“Article opts to sensationalize with its color commentary”, Apr. 29). More: Dr. Helen, Apr. 22. Stuart Taylor Jr. has a powerful column on the subject which however is online only to National Journal/The Atlantic subscribers (“An Outrageous Rush to Judgment”, May 2). And guess who’s involved himself in the case, as an advisor to the complainant’s family? None other than ace money-extractor Willie Gary, long familiar to readers of this site (Wendy McElroy, “Is ‘Duke’ Case Headed to Civil Court?”, FoxNews.com, May 16).

Duke lacrosse case, cont’d is a post from Overlawyered - Chronicling the high cost of our legal system

In the mean time, for readers who followed Stuart Taylor’s refutation (posted here Jan. 19, with comment) of Stephanie Mencimer’s tendentious Washington Monthly article of last October, the Washington Monthly has at length notified its online readers of Taylor’s response, and posted a (to me, very lame) defense by Mencimer of her article (Feb. 15).

Light posting; Mencimer reply is a post from Overlawyered - Chronicling the high cost of our legal system

I don’t make it a practice to respond to Mencimer’s writings, but the distinguished legal journalist Stuart Taylor, Jr., who writes an influential column for National Journal and contributes to Newsweek, was outraged by her attacks on his work in an article she wrote for the October Washington Monthly and took the time to craft a lengthy, devastating point-by-point rebuttal. He sent it on December 16 to the editors of the Washington Monthly including editor-in-chief Paul Glastris.

Remarkably, in the month since then, the Washington Monthly editors have neither posted the letter for their readers’ benefit nor made any attempt to rebut it. Now Taylor has generously consented to let me post his letter here. Readers can draw their own conclusions about how much of Mencimer’s credibility is left standing after his thorough dissection — and about what it means for the Washington Monthly’s reputation that it seems intent on stonewalling on her behalf. Update Feb. 16: Washington Monthly and Mencimer reply.

Stuart Taylor, Jr. vs. Stephanie Mencimer is a post from Overlawyered - Chronicling the high cost of our legal system

Steve Bainbridge, noting Edwards’s jobs-jobs-jobs economic rhetoric, wonders whether the Senator pauses to worry about certain jobs destroyed by some of his main backers (Feb. 25). Edwards’s latest fund-raiser in Houston was hosted by John O’Quinn, who as the impresario of the breast implant litigation that bankrupted Dow Corning knows a thing or two about destroying jobs (Rachel Graves, “Fund-raisers bring Edwards to town”, Houston Chronicle, Feb. 24; Ken Herman, “The 2004 Election”, Cox/Palm Beach Post, Feb. 25). And on the Edwards-and-cerebral-palsy controversy that we and several other webloggers were pursuing earlier this month, Franco Castalone (The LitiGator) has added a pair of posts clarifying and extending his earlier comments, the first of which (Feb. 15) relays a wealth of information about no-fault birth injury compensation programs and the litigation they would replace, and the second of which (Feb. 16) makes some valuable points about civility in disagreement, and also says generous things about this site.

Stuart Taylor, Jr. on Sen. Edwards is a post from Overlawyered - Chronicling the high cost of our legal system

Stuart Taylor, Jr.’s response (continued; for first part, click here):

7. Newsweek’s report that “according to one estimate, doctors waste $50 billion to $100 billion on ‘defensive medicine'” is, if anything, an understatement. The main source is a 1996 article by Daniel Kessler and Mark McClellan in The Quarterly Journal of Economics concluding on the basis of an empirical study: “‘Defensive medicine’ is a potentially serious social problem: . . . . We find that malpractice reforms that directly reduce provider liability pressure lead to reductions of 5 to 9 percent in medical expenditures without substantial effects on mortality or medical complications.” Applied to the nation?s current $1.65 trillion in annual medical expenditures, that comes to $82.5 billion-$148.5 billion. Newsweek did not claim that this inherently somewhat subjective estimate (or any other) is universally accepted. The two sources cited by ATLA, both more than 10 years old, predate a rapid rise in malpractice liability costs and insurance premiums. And in recent surveys, overwhelming majorities of doctors have said that they and their colleagues order many medically unnecessary tests to protect against lawsuits.

8. Nothing in ATLA’s “facts” undermines Newsweek’s statement that there have been thousands of lawsuits by people who hurt themselves at playgrounds. ATLA’s assertion that “insurers have played a large role in forcing compliance with CPSC standards and other safety changes” merely confirms that liability fears have led to the removal of thousands of challenging play structures such as monkey bars, jungle gyms, and high slides. ATLA’s claim that this has made playgrounds safer is unsupported by empirical evidence and disputed by some (though not all) experts. These experts say that the new, certifiably “safe” playground equipment is so boring that kids look for dangerous ways to use it, such as climbing over safety bars or the tops of swing sets and jumping off. And even if the boring new playgrounds are a bit safer, many parents complain that an obsessive search for absolute safety leads to such absurdities as bans on dodge ball and even on running.

9. ATLA admits the truth of Newsweek’s report on the sex offender who threatened to sue police for not catching him sooner. It claims that the moral is that most lawyers won?t take cases without merit. But the evidence is that many lawyers do take — and many judges allow — thousands of lawsuits that most Americans would deem without merit. Indeed, in an important new law review article based on massive evidence about asbestos lawsuits, Lester Brickman, a professor at the Cardozo Law School of Yeshiva University, claims: “Asbestos litigation has become a malignant enterprise which mostly consists of a massive client-recruitment effort that accounts for as much as 90 percent of all claims currently being generated, supported by baseless medical evidence which is not generated by good-faith medical practice, but rather is primarily a function of the compensation paid, and by claimant testimony scripted by lawyers to identify exposure to certain defendants’ products.”

10. ATLA challenges Newsweek’s report that a fifth-grade boy’s mother sued when he broke an arm shooting hoops on his school playground. The case is real: Bryan Raiken v. Toms River Regional School District, Ocean County, NJ docket L28992, location #0100975.

11. Despite ATLA’s claim that there is no “empirical evidence that 80% of malpractice claims are unfounded,” that is one conclusion of the definitive empirical study of medical error, the Harvard Medical Practice Study of thousands of cases in New York State, led by Dr. Howard Hiatt, former dean of the Harvard School of Public Health. It concluded that “more than one-half [of the malpractice claims] arose from instances in which there was neither negligence nor any identifiable injury, and one-third arose from instances of injury but no negligence; only one-sixth corresponded to ‘true’ negligent incidents.” Although that study is based on 1984 data, others have reached similar conclusions, and there is no evidence that the percentage of malpractice claims that are valid has grown.

Professor Vidmar’s claim that malpractice insurers do not settle frivolous cases does not refute Newsweek’s statement that insurance companies pay to settle many unfounded malpractice claims. The explanation is that by most legal definitions, only an extremely narrow category of claims that have absolutely no chance of succeeding in court are deemed “frivolous”; “unfounded” claims–meaning claims that in fact involve no medical negligence — are far more numerous, and sometimes succeed due to uncorrected errors by judges and juries. ATLA also neglected to mention the statement in the Vidmar document that it cites (in footnote 14) that Vidmar had “received remuneration” for preparing that document for use in a legal challenge to Indiana?s caps on malpractice damages.

12. ATLA seeks to imply (in footnote 12) that I am biased because of my past work as an attorney with Wilmer, Cutler & Pickering. It neglects to mention that I left that firm more than 23 years ago to become a New York Times reporter and did no tort reform work while there.

Newsweek vs. ATLA: Stuart Taylor, Jr. responds (II) is a post from Overlawyered - Chronicling the high cost of our legal system