It’s a little hard to fathom but actions speak louder than words: For political partisans, what seems to be scarier than a novel coronavirus that has infected more than 1 million Americans and claimed more lives in a few weeks than years of U.S. involvement in Vietnam?
Trial lawyers. Like me. Really?
Politico, the news web site, reported that Senate Majority Leader Mitch McConnell and House Minority Leader Kevin McCarthy have grown adamant that “any” legislation Congress considers in the days ahead involving Covid-19 must shield an array of business interests from liability from “frivolous” lawsuits. Politico quoted him, thusly:
“We cannot let a second pandemic of opportunistic litigation enrich trial lawyers at the expense of Main Street and medical professionals. Senate and House Republicans agree these protections will be absolutely essential to future discussions surrounding recovery legislation.”
McConnell, the news site Salon reported, quoting him on an appearance on Fox News, said this:
“That’s going to be my red line. Trial lawyers are sharpening their pencils to come after health care providers and [other] businesses, arguing that somehow the decision they made with regard to reopening adversely affected the health of someone else.”
Democrats in Congress and labor unions nationwide have disagreed sharply with their GOP counterparts over legal shields for wealthy corporations eager to return to business, maximize their bottom lines, and enrich their shareholders — no matter the consequences for their people and the nation.
Trial lawyers, like me, always are at the ready with facts and evidences to rebut counter-factual assertions about Americans constitutional right to seek redress for harms they have suffered, via the civil justice system.
The liability exemption proposal, pushed in recent weeks by the U.S. Chamber of Commerce and conservative groups at the far extremes, insults a fundamental part of the American court system — the common sense and judgment of juries and judges. They look at cases with cold-eyed care, and, the research in areas like medical malpractice shows — contrary to partisan myth making — that the number of suits stays low and judgments are rarely extreme, and that juries more often than not give a strong benefit of the doubt to medical providers.
In fact, lawsuits play an invaluable role — in protecting patients, according them justice, and improving the quality and safety of medicine. Lawsuits help to uncover bad practices and system flaws that injure and kill patients. With malpractice cases, studies have found, just a slice of doctors rack up the complaints, too often in repeated fashion. They lose in court not once, twice, but sometimes multiple times, staying in business and harming patients but at different and lesser hospitals or practices.
Individuals who pursue civil cases know that they will be tough and scary for them and their loved ones, especially because so few Americans step in the formal and potentially intimidating court proceedings. Cases can take time to resolve. Parties argue the facts and what they mean in vigorous fashion.
For the aggrieved, this stressful process may be their only way to find justice.
As the Covid-19 pandemic has progressed, officials already have given health care workers, hospitals, and other care giving facilities major legal leeway, recognizing the uncertain, unprecedented, and urgent response required. This makes some sense.
What does not make sense is partisans’ efforts to remove what may be a vital and regrettably spare means of oversight from the health care system and profit-maximizing corporations.
Juries and judges will not be bamboozled by what-if arguments when they have lived through exigent and compassionate exercises of judgment in medical services or business operations. But they need to tell the wealthy and powerful that willful, abusive, and negligent conduct and actions that injures or kills patients or workers is unacceptable and needs to be penalized.
As key facilities have burst out as Covid-19 hot spots, someone in our society needs to ask what could have been done better, safer, and smarter, so that infections and deaths did not rage among nursing home residents, cruise ship passengers, and crews at livestock packing plants and warehouse shipping centers.
Critics have assailed the Trump Administration and Republicans in Congress, even before the pandemic swept the globe, for adopting business-friendly stances and proposing to or relaxing safety and other oversight measures for hospitals, nursing homes and long-term care facilities, as well as plants processing pork, beef, and poultry. Really?
The Los Angeles Times also has lit into state officials for laxity in regulating nursing homes, especially as profit-minded chain ownership has spiked while infection control, adequate staffing, and reasonable living conditions became serious problems. So, those injured or even killed in institutional fiascoes — residents, their loved ones, and staffers — are supposed to go on afterward, with no remedy or way to seek reforms?
In my practice, I see not only the harms that patients suffer while seeking medical services, but also their struggles to access and afford safe, efficient, and excellent medical care. This has become an ordeal due to the skyrocketing cost, complexity, and uncertainty of therapies and prescription medications, too many of which turn out to be dangerous drugs.
The pandemic has inflicted great suffering on Americans, not only with infections and deaths by disease, but also a huge hit on their lives and livelihoods. As the nation starts to reopen with caution, businesses and politicians not only want to shut down worker safeguards, they also are putting too many people who make too little money in an awful position by moving to cut off public supports like unemployment assistance. Corporations and others are telling workers to go back to work and possibly get sick or even die, or go broke and fail to feed your families.
Who is looking out for ordinary folks in the face of draconian steps like these? Where is the savvy guidance, from any of many federal agencies, of what might be baseline standards for hygiene, distancing, and safety steps that might better protect people at work from Covid-19? When political partisans already have stripped away oversight and safeguards, what recourse will workers have if companies fail to provide them even the barest infection protection while putting them back in risky work?
Who do Americans really need to be safe from — avaricious and out-of-touch pols, acting like puppets for rich corporate interest, or trial lawyers standing as a safeguard of individuals and their sane treatment, even in unprecedented circumstances?