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Guy's Blog

Just one Guy's personal blog of thoughts & sense--common, non, and otherwise--of the world in which we live.

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Location: Nipomo, Central Coast, California, United States

I also blog over at Nipomo News, Messenger and Advocate and Bloggernacle Times

Saturday, November 12, 2005

Tort Reform Hypocrisy

I've posted about "tort reform" before over on my legal blog, NipomoBlawg, here, and here. It's time for an update; however, since it's more political than legal, I'm going to post here, and link from my other blog. ABC News is reporting that Senator Rick Santorum has some explaining to do! You see, the junior senator from Pennsylvania is an ardent tort reformer. This means he doesn't believe people should have full access to the judicial system, and let a jury as guaranteed by the Constitution's Seventh Amendment, decide the case based on the evidence, without any outside artificial constraints.

Senator Santorum's website sets for his position on tort reform as:

Liability Reform

Legal reform is an important issue that I place high on the agenda in the 109th Congress, as it is crucial to curb lawsuit abuse. Patients across America are being denied critical health care as doctors and hospitals are closing their doors due to skyrocketing liability costs. We must focus our efforts on protecting access to emergency rooms and OB-GYNs, as well as passing medical liability legislation that will protect doctors and promote accessible and affordable health care in our communities.

Additionally, we must pass class-action reform legislation. Injured plaintiffs are suffering due to weak state court oversight of class-action lawsuits. On too many occasions plaintiffs receive little or no settlement and, in some instances, lose money after paying attorneys' fees.
As you can see, this has a "high" priority on the senator's agenda for this congress; however, it appears it is only high on the agenda long after his own wife, Karen Santorum took full advantage of the judical system and prosecuted her own case against a medical provider for malpractice.

On December 11, 1999, The Pittsburg Post Gazette reported in part:

A Virginia jury last night awarded the wife of Sen. Rick Santorum $350,000 in damages after she charged in a lawsuit that a Virginia chiropracter's negligence caused her permanent back pain.

Deliberating more then six hours after a four-day trial in which Santorum, R-Pa., testified, the Fairfax County Circuit Court jury unanimously ruled for Karen Santorum. She had sought $500,000 against Dr. David Dolberg of Virginia, because of pain from his 1996 treatment of her.

"Mrs. Santorum has been vindicated," said her Pittsburgh attorney Heather Heidelbaugh. "She was injured permanently through the actions of a chiropractor who acted negligently."

Heidelbaugh, with the Pittsburgh law firm of Burns, White & Hickton, said Mrs. Santorum has "permanent back pain" and "permanent numbness" in one leg.
Given the senator's tort reform views it is understandable he didn't much want to talk to the press about his wife's judicial victory:

Throughout the trial, Santorum aides declined to provide details. Yesterday, they issued a brief statement from the senator saying: "The court proceedings are a personal family matter. I will not be offering any further public comments, other than that I am not a party to the suit. But I am fully supportive of my wife."

The ABC report is even more enlightening:

Sen. Rick Santorum, R-Pa., says that the No. 1 health care crisis in his state is medical lawsuit abuse and in the past he's called for a $250,000 cap on non-economic damage awards or awards for pain and suffering. "We need to do something now to fix the medical liability problem in this country," he declared at a rally in Washington D.C., this past spring.

But Santorum's wife sued a doctor for $500,000 in 1999. She claimed that a botched spinal manipulation by her chiropractor led to back surgery, pain and suffering, and sued for twice the amount of a cap Santorum has supported.

One has to wonder how the senator found religion from verdict time in 1999 up to now. And, one has to wonder the extent of the conversion from then to now. When the ABC reporters asked the senator about the hypocrisy of his push for damage caps and his own wife suing for twice the amount of those caps, he responded:

"I guess I could answer that in two ways," he said. "Number one is that I've supported caps. I've been very clear that I am not wedded at all to a $250,000 cap and I've said publicly repeatedly, and I think probably that is somewhat low, and that we need to look at what I think is a cap that is a little bit higher than that."

'Of Course I'm Going to Support My Wife'

But the fact is that Santorum has sponsored or co-sponsored a $250,000 cap on non-economic damages two times — even though he testified in his wife's case against the doctor.

"Of course I'm going to support my wife in her endeavors," he said. "That doesn't necessarily mean that I agree with everything that she does."

But Santorum agreed enough to tell the jury that he had to carry the laundry upstairs for his wife and that, because she suffered humiliation from weight gain, she no longer had the confidence to help him on the campaign trail. The jury was so moved it voted to award Karen Santorum $350,000.

"That's where again you're misled is that a lot of, there was cumulative damages," he said. "The medical bills, lost income, all those other things that were out there."

Those medical bills totaled $18,800, yet she sued for $500,000. And lost income? The judge made no mention of that when he slashed the jury's award in half, saying it was excessive.

The judge noted that the remaining damages "awarded amounted to something in the neighborhood of $330,000 or so for injuries sustained and the effect upon Mrs. Santorum's health, her past and future pain and suffering and inconvenience."

Wow! What? How convenient! Sounds to me like tort reform's the most important item facing the country on the campaign trail. But, at home, it's "support the wife" all the way. Unfortunately, it's at the expense of ordinary Americans and their constitutional right to a jury trial.

The Washington D.C. Newspaper Roll Call, in December 1999 covered this trial and specifically the senators testimony, which he gave subject to the penalty of perjury. Roll Call reported that the senator testified in part:

“Karen Santorum, he said, ‘likes to be fit,’ but has had trouble losing weight since the birth of their two youngest children - Sarah Maria, who was born two years ago this month, and Peter, who is 2 months old – because she can’t exercise as easily as she once could.

“While Santorum described his wife as an exercise fanatic who used to engage in everything from step aerobics to jogging to lose weight after the birth of each of their first three children, the herniated disk changed all that.

“‘We have to go out and do a lot of public things. She wants to look nice, so it’s really difficult,’ Santorum told the jury.

“The Senator also said he fears his wife will be unable to help him out much with his upcoming re-election campaign because of her physical limitations and the poor self-image she has developed since her back problems changed her life and her daily routine.

“‘She has always been intricately involved in my campaigns,’ Santorum said, explaining that he and his wife ‘knocked on 20,000 doors together’ during his previous campaign.

“Now, he says, she ‘does not have the confidence to do that.’”
I'm going to attempt to obtain trial transcripts; however, that may prove impossible. If I do, I will post verbatim from the senator's testimony on this blog.

Some points worth considering. Like many plaintiffs in personal injury lawsuits, Ms. Santorum did not compile a hugh amount of medical expenses. From the press accounts she incurred nearly $19,000 is medical bills. Yet her prayer for relief in the lawsuit apparently sought $500,000 in total relief.

I'm not able to judge whether her case actually had that value; however, a jury, sworn, and sitting on her trial after listenting to the evidence decided that the case did have that value. So, from where did all that value come? Most likely in what we call general damages, i.e., pain and suffering. For many people this is the most difficult concept: awarding money damages for a person's subjective pain and suffering. Based on the trial excerpts above, Senator Santorum's testimony, under oath at trial focused on his wife's general pain and suffering damages. The same damages, the senator (at least in everyone's elses lawsuit) thinks are just phoney.

Of course, I make a living as a trial lawyer. I try these types of cases, i.e., personal injury. I have asked juries to award these types of damages. I have also defended personal injury cases, and have asked juries to be responsible in awarding damages, or not to award them at all. The fact is that we have a good tort system. George Bush wouldn't know a tort if it fell out the sky and landed on his head. He and other tort reformers like Senator Santorum use the issue as a political club for their own political advantage. This is confirmed by the facts in the Santorum case.

There is nothing wrong with allowing a sworn jury to do their job in coming to verdicts on a case by case basis. We don't need artifical constraints on the amount of money or damages juries should award. There are built in safeguards in this system, one of which we saw in the Santorum case. The judge can, and often the do, reduce the jury awards if in fact they are not supported by the evidence, or if justice so requires.

I reality I don't think the Santorums case is unique. When you need and want a lawyer to plead you case, you don't want that lawyer to be hampered by the artifical constraints of tort reform. You want your opportunity at justice as afforded by both state and federal constitutions. But, is it too much to ask to be consistent, and not a hypocrite when your ox is in the mire? Well, Senator, I say get off your tort reform political agenda, and afford every American the same legal rights you testified under oath for in your own wife's medical malpractice case.


Blogger Matt Evans said...


It's not hypocritical to argue that the legal system needs to be reformed but to still play within the current system until it *is* reformed.

By your standard a coach who thinks football would be better without instant replay can't have a call reviewed because he didn't want the league to adopt instant replay. There's no moral principle that says that a coach or senator who loses the debate for structuring particular rules has to follow rules different from everyone else.

10:34 AM  
Blogger Guy Murray said...

Hi Matt,

Thanks for stopping by and commenting. I think there are a couple of problems with your coach analogy and the Santorum fact pattern:

1. The football coach is a professional, making his living, employed within the football "system" NFL, college--whatever. A tort litigant, however, is not supposed to be a professional tort claimaint, making his or her living by filing lawsuits. So, they aren't really the same.

2. The football coach, doesn't really get to make the rules (I don't think--and if so, then I'll stand corrected) about whether the league does not doesn't adopt instant replay. Senator Santroum, however, does get to make and vote on the rules about tort reform. He advocates a radical approach to reform, in my opinion.

3. Where it becomes hypocrisy, in my opinion, is when the Senator avails himself of the tort system, as an active participant. In this case he testified as a percipent witness focusing on "general" pain and suffering damages, which is the heart of the tort reform argument.

As you know, no one is forced to seek any compensation from the tort system. If they do seek compensation, they are not required to seek general pain and suffering damages. They could have sought only to be reimbursed their medical expenses so that their own insurance company which originally paid for the medical treatment could have been reimbursed its money.

To be conistent, the Santorums should not have sought general pain and suffering damages, if they truly believed the system needed reform. By doing so, they helped abuse the very system, that the Senator, for very obvious and clear political reasons, wishes to gut.

I'm not saying the senator should not have availed himself of the system. He just shouldn't now turn around and advocate its reform, when he was never required to participate to the level he did--or even at all. (The football coach, of course has to coach football each week, since that's how he makes his living. And by doing so, he doesn't abuse the very system in which he is involved.)

So . . . I suppose that's where I see his hypocrisy.


11:27 AM  
Blogger Matt Evans said...

Hi Guy,

I'm glad Kaimi linked to your post from T&S. That's how I find myself here.

I think you're right about coaches not voting on rules for the NFL, I believe only the owners vote there. So you can consider the team owner to be the relevant party. Like an NFL owner who votes for the rules and then plays by them, Santorum is a citizen and senator who votes for the rules and then must play by them.

The parallel I was drawing to the coach is that neither the coach or the senator/citizen become "professional tort claimant" or "professional instant replayers" by seeking recourse from those particular remedies. The system gives both of them recourse when they think something happened to them wrongly. A citizen can ask a judge to remedy the harm of a doctor and a coach can ask a panel of umpires to remedy the harm of a bad referee call. In neither case are the parties _required_ to avail themselves of this option (no one has to file a law suit, or claim emotional pain and suffering, and no team has to ask that a questionable call be reviewed).

If Santorum has argued that it's immoral to seek damages for pain and suffering, and we should therefore restrict such claims because they're immoral, then I agree he'd be hypocrticial to seek those damages. But my guess is that he doesn't base his support of tort reform on the claim that seeking those damages is immoral.

12:00 PM  
Blogger Guy Murray said...


Thanks for pointing out Kaimi's link on the T & S side bar--and thanks Kaimi for the link....we smaller bloggernaclers appreciate those types of links.

Perhaps one of our areas of disagreement is semantics; however, if I understand your most recent comment, at least in Santorum's case you imply he can only be hypocritical if he argues tort reform from a moral standpoint.

If you go back and re-read his website quote, in my original post, the language borders on a moral imperative. In short he argues those who bring medical malpractice lawsuits essentially deny patients across America critical health care, including access to emergency rooms, and OBGYN's. He argues that lawsuit abuse closes emergency rooms and force doctors out of practice.

Assuming for the moment his conclusions are accurate, it seems that those who bring medical malpractice cases are certainly engaged in an immoral practice. Denying people medical care, in order to enrich yourself at the public tort trough can easily be argued as immoral. Therefore, under your definition I would say the hypocritical label does apply.

At the very least, however, Senator Santorum, is inconsistent in arguing tort reform as he has defined it, and then engaging in the very activity he decries, for a political purpose. Ttaking a partisan political position, such as tort reform, and then engaging in the activity may be immoral itself. So, whether the good Senator is immoral, therefore hypocritical, or if he is just inconsistent, I don't see a great deal of difference.

Another issue is the attempt to modify what the Framer's clearly considered to be a constitutional right, protected by the Seventh Amendment to the Constitution, by passing a simple statute. I can't imagine the tort reform crowd sitting still for statutes that somehow modify or restrict their perceived rights under the Second Amendment. What ever happened to strict construction?

I realize the last paragraph may be a bit off point . . .but thought I'd throw it in anyway.

11:03 PM  
Anonymous Anonymous said...

Guy, I'm curious to know if you were able to attain the trial transcript of Santorum malpractice case. If you did, I would be interest in reading what they had to say. It seem to me that they were biting the hand that was puting money in the bank. Chuck

1:22 PM  
Blogger Guy Murray said...

Chuck, No I haven't had any success there, yet. But, I'll keep trying.

5:36 PM  

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