Editore"s Note
Tilting at Windmills

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October 13, 2004
By: Kevin Drum

TORT REFORM....If tonight's debate runs true to form, Bob Schieffer will read a question about "skyrocketing" medical malpractice awards and then ask what each candidate plans to do about it. And if the candidates run true to form, George Bush will talk about capping large awards something that helps insurance companies while John Kerry will talk about curbing frivolous lawsuits something that helps doctors. Despite that, Bush will somehow end up seeming like he's the one on the side of beleaguered doctors everywhere.

To prepare us for this onslaught of insurance industry spin, Stephanie Mencimer has yet another terrific article about medical malpractice and tort reform in the current issue of the Washington Monthly. What's more, the picture that goes with the article is worth a thousand words of its own: it's from a 1953 insurance industry advertisement in the Saturday Evening Post. Did you know that the insurance industry has been sounding alarm bells about "out of control" juries for over 50 years?

The industry also successfully planted articles in national magazines and TV shows that were designed to look like investigative reporting. In 1962, CBS broadcast "Smash-Up," a fictionalized docudrama that portrayed sleazy lawyers faking auto accident cases. The Insurance Information Institute, the industry's public relations arm, helped write the script. In 1977, the venerable insurance company Crum & Forester sponsored one of the first print ads that included what would become a staple of anti-lawsuit rhetoric: the fictional lawsuit horror story. The ad told the story of a guy who collected a $500,000 jury verdict after he was injured using a lawnmower as a hedge clipper. The agency later conceded that it had no factual basis for the story, but that didn't keep it from circulating widely in the media and in conservative political speeches.

The industry knew what it was doing. In 1979, Elizabeth Loftus, the famous memory researcher and University of California psychologist, tested the effects of this kind of advertising on potential jurors and their decision making in the jury box. At the time, the industry was spending $10 million on a series of ads in a host of national magazines. In an article in The American Bar Association Journal, Loftus reported that potential jurors who were exposed to even one insurance ad awarded much less for pain and suffering than those who weren't.

It's a terrific piece, well worth reading all the way through. Tort reform is a worthwhile subject and there are legitimate criticisms to be made of our current system as well as substantive proposals for fixing it. Unfortunately, conservative demagoguing of trial lawyers produces more heat than light, and tonight probably won't be any exception. Be prepared.

Kevin Drum 6:49 PM Permalink | Trackbacks

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