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HMOs are a good reason for lawyers

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By MARTIN DYCKMAN

© St. Petersburg Times,
published June 24, 2001


TALLAHASSEE -- If President Bush has a favorite quotation from Shakespeare, it's got to be this one: "The first thing we do, let's kill all the lawyers."

W is in such a lather over the thought of Congress letting lawyers loose on the HMO industry that he's threatening to veto the bill.

It must run in the family. Brother Jeb has happily signed two laws that make it decidedly more difficult for people to sue successfully for wrongful injury or death. And last week, he signed one that lets him decide which lawyers will represent the Bar on Florida's Judicial Nominating Commissions. He can keep saying no until he gets the ones he wants, which means they aren't likely to think much of plaintiff lawsuits either. The big business lobbies had almost as much to do with enacting that bill as the Christian Coalition did.

So it's worth remembering who was talking about killing all the lawyers, and why. They were bad people, a mob bent on doing bad things, and even in Shakespeare's time it was understood that lawyers are society's best defense against bad people who would do bad things. This is not often noted by people fond of quoting Dick the butcher's anti-lawyer line from Henry VI Part 2.

The odd thing is that George and Jeb Bush really ought to love lawyers, and trial lawyers most of all. After all, they represent the ultimate in what the Bushes say they do like, and that, of course, is privatization.

It's not the government that protects the public in this country. It's the trial lawyers.

For all the big fees you hear about, the typical plaintiffs' law firm wouldn't fill the reception room at OSHA. Tommy Warren, the Tallahassee attorney who put an end to the rampant racism at Shoney's some years ago, was a sole practitioner when he took on the case.

The plain truth is that our Congress members and state legislators do not want the government to protect the public, and almost never have. They would rather the lawyers do it. That way, they can tell their big corporate contributors, "Don't blame us. It's those nasty lawyers and those ultra-liberal courts."

Consider this: More than 200 people have died in crashes involving the Ford Explorer-Firestone tire scandal, and what has the U.S. government done beyond just talking about it?

Nothing.

The tire recalls have all been voluntary. And if it weren't for all those pesky trial lawyers and their lawsuits, there probably wouldn't have been even that.

In Venezuela, in sharp contrast, the consumer protection agency is calling for a ban on Explorer sales.

The real problem in this country is that the government holds no terror for people who make and sell products that aren't as safe as they should be. The worst that can happen is that someone will sue them for money damages. But no government agency will put them out of business or put their executives in jail. Negligence is ordinarily no crime except on the part of a private citizen driving a car. In one rare instance where a company was held criminally responsible for negligence that killed people -- 110 of them, to be precise, in the 1996 ValuJet crash -- the company has since found wimpy federal administrators willing to reduce its fine and sympathetic appeals court judges who are threatening to upset the entire conviction.

A company can coldly weigh the cost of making a safer product against the damages it may lose for not doing so, and the worst that will happen is that it will cost more money than they bargained for. No one will go to jail.

If the laws and the people enforcing them were as tough as they should be, Gov. Bush would be calling on the statewide grand jury to do more than investigate identity theft. It would also be looking into what Ford and Firestone knew and when they knew it. But hey, isn't that what lawsuits are for?

Not so long ago, an old woman died in a Florida nursing home because fire ants invaded the place and bit her to death. Whether the investigation was poor or the law was weak, I don't know, but an administrative law judge was able to find no basis for the state to sanction the management. Some trial lawyer will doubtless take the case to a civil jury, but what lesson did the Legislature learn? To weaken the punitive damage law so that what a nursing management doesn't know can't hurt them.

Lawsuits are the price we pay for our buyer-beware philosophy of government. If we don't want HMOs to be sued for denying needed care, then we should have some other way to punish them when they put their profits ahead of people's lives -- which is, of course, precisely what the system gives them every incentive to do.

For all the early promises about HMOs providing preventive care, their real purpose is to ration care. The less care for you, the more profit for them. The economics are inexorable. There is nothing they fear but lawsuits. If President Bush had ever spent a day in the real world, perhaps he'd understand why we need so many lawyers.

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