week or so back, Blockbuster, Inc., signed a consent decree. The aggrieved
were folks who were "overcharged" for overdue rented movies.
Retribution for movie renters will be in scrip. But a limit per Blockbusterite
of $18 in credit, about six movies. The winner, of course, is the
trial lawyer. Is there one human being this side of the crazy houses
who believes that an enterprising victim undertook to hire a lawyer
to engineer a class-action suit in search of $18 worth of free movies?
Then last week
in California a jury awarded a 56-year-old smoker $3 billion against
Philip Morris. Everybody knows all the arguments on the cigarette
controversies, but the argument that stood out in Los Angeles wasn't
that Philip Morris never advertised the dangers of smoking, but that
the Marlboro Man ads create an impression of the bionic man, whereas
what is really happening to the smoker isn't that his chest is swelling
with pride and health as he surveys the great western scene, but that
his lungs are deliquescing. Those are valuable lungs, this plaintiff's.
At $3 billion, they're worth more than the Empire State Building and
Rockefeller Center combined. But again, the interest here is the trial
lawyer, who could claim $900 million, which is testimony to the lunacy
of jurors, and the delinquency of Congress in doing nothing about
tort reform.
Front and center
in these matters is the patients' bill of rights. This issue got
much attention at the Democratic national convention last year.
It featured Bill Clinton striding to his throne on stage through
a long royal tunnel flecked with diamonds and moon dust, his passage
illuminated by a visionary camera that tracked his way through the
labyrinth, on to the podium, where he proclaimed the patients' bill
of rights.
Now it is obvious
that patients should have rights. Conventionally, these are rights
protecting against fraudulent or tortious action. If a doctor amputates
your left leg when it was your right leg that was giving you the
trouble, you have a right to claims. If a manufacturer gives you
insulating material for your house which gives you warmth but also
induces cancer, you have claims. As also if the pill you take, far
from aborting the fetus, makes quintuplets out of him, you have
a claim.
But the bill
that has been introduced by Sen. John McCain and Sen. Ted Kennedy
is one that would give the trial lawyers instant access to any disagreement
between a patient and the managed-care provider. Opposing interests
in the field are manifested every day of the week, not by the dozens
but by the thousands. Attempts are made by providers to describe
fully what it is that they will pay for, so that the buyer can beware.
But inevitably there are points of disagreement, both as to the
language that the provider has used, and whether or not it undertook
to provide for this malady, but also as to implied obligations.
Now there are
two roads to travel here. One is the courts, a second is arbitration.
Some contracts contain arbitration clauses, in which the contracting
parties agree to repose their rights in an arbiter. It is the obvious
alternative to litigation, but doesn't cope with the odd cause of
disagreement. An arbitrator might rule that the managed-care provider
should pay for cataract operations, but isn't ideally equipped to
measure the cost of the fatal accident that resulted from the initial
failure to pay for these operations.
And that, of
course, describes the need for tort reforms of the kind that specify
limits to recovery. A derivative of such limits would set limits
on the cash amount recoverable by litigating lawyers.
The different
approaches to the patients' bill of rights will be the battleground
of the next skirmish between Mr. Bush and Mr. McCain. John McCain's
collaboration with Sen. Kennedy should have warned him, inasmuch
as Mr. Kennedy is guided by the general rule that anything that
promotes redistribution is a good thing. And if the agents of that
redistribution are trial lawyers, that is an even better thing.
Here Mr. Bush
faces another of those challenges which hedge in his administration.
There are principles involved, or that should be involved, in $3
billion awards to a single smoker who persisted in the habit through
30 years of minatory din against it; principles involved in avoiding
the bureaucratic and litigative overhead of our drift towards insured
health care. Mr. Bush's tendency in the tax bill and the education
bill has been to yield principle in order to effect legislation.
Politicians need to do that, up to a point. But to assert principle
gives perspective. This is useful to those congressmen who will
listen, and to voters who seek to inform themselves about the character
of their representatives.
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