Kentucky Law Review

AAJ News: Medical Malpractice Tort Reform on the horizon? U gotta be kiddin'!

From the AAJ - American Association of Justice.  Seriously, in the midst of all this toil and turmoil, Congress is pondering the tort reford/deform non-issue again?  You got to be kidding. 

Although tort reform/deform is a bogus solution for a non-existent problem, some might think a few other issues are more important, such as:  balancing the budget, health, jobs, rebuilding the nation's infrastructure rather than bending to the whims of the Chamber of Commerce, corporate America, and the insurance companies.  You know those folks.... the one's who brought you the great recession AND then asked for the great bailout.  And once they had all that government money, did you see any loans to stimulate small business whom the Republicans claim to be protecting as the backbone of American business?  Nope.

Well, those who protect the little guy are warning you again.... Listen up.

"Did you have a chance to watch or read this year’s State of the Union Address? What a difference a year makes! We were in the House gallery listening to the President, and we were delighted with the speech.

Last year at this time we were shocked and dismayed after the President used the term “frivolous lawsuits” in his State of the Union Address. This year, however, the President mentioned needing “smart regulations” to prevent harm caused by faulty medical devices and foreign products.

Since last year, AAJ has reached out to the Obama Administration—and so many of you have helped by talking to your members of Congress—to repeatedly reinforce the message that a strong civil justice system keeps all Americans safe. Thank you for what you have done. We are seeing the results.

While President Obama said there would be “no bailouts, no handouts, and no copouts,” in the Congress, Republican leadership in the House is preparing to bring a sweeping medical malpractice, medical products, and nursing homes bill to the Floor. This is H.R. 5—the one legislative priority of Speaker Boehner that never went anywhere in the first session of the 112th Congress. The bill is a phenomenal bailout for the medical industry.

We are hearing very credible information that medical malpractice tort reform will be added to the House highway bill (a big transportation bill that funds our nation’s highways). Yes, added to a highway bill!

You may remember the Congressional Budget Office (CBO) estimated $54 billion in savings over 10 years from medical malpractice tort reform. House leadership thinks this is the right way to pay for our nation’s crumbling infrastructure.

What’s coming up in Congress is a perfect reminder that this will be an important year and we need to maintain our advocacy with Congress. Election 2012 is nine months away. We must maintain a civil-justice majority in the Senate. We must be vigilant.

We will continue to communicate with you as we have more news about presidential contenders and other election and legislative issues."

U.S. Chamber of Commerce: Civil Justice Hypocrites from the AAJ

From the AAJ, is the following press release of interest to those following the Chamber of Commerce's assault on the legal system and citizens' access to justice:

U.S. Chamber: Civil Justice Hypocrites
 
Chamber enters over two lawsuits weekly; report shows corporate front group litigates aggressively for own agenda, while blocking justice for everyday Americans
 
Washington, D.C.-Earlier this month, U.S. Chamber of Commerce President and CEO Tom Donohue called litigation "one of our most powerful tools for making sure that federal agencies follow the law and are held accountable."
 
Yet ironically, the Chamber today holds its annual Legal Reform Summit – an event underwritten by its multinational corporate members that promotes undermining the civil justice system to weaken the basic legal protections of American workers and consumers.
 
The Chamber's hypocrisy – blocking justice for everyday Americans while using the courts liberally for its own pro-corporate agenda – is the subject of a new report released today by the American Association for Justice (AAJ) that exposes the Chamber as one of the most aggressive litigators in Washington, entering lawsuits at a rate of over twice weekly.
 
"The Chamber's 'one rule for corporations, another rule for everybody else' motto has come at the expense of ill-treated workers, defrauded investors and injured consumers," said AAJ President Gibson Vance. "It readily spends millions of dollars to prevent Americans from holding wrongdoers accountable in the courtroom, and then aggressively uses the very same legal system to advance the agenda of its multinational corporate membership."
 
In almost every case, the Chamber's litigation on behalf of corporations has come at the expense of Americans' health or financial security. The Chamber has:
justified the actions of Wall Street banks that drove the country's economy into turmoil;
defended the most conceited and worst behaved CEOs and their most extravagant excesses;
tried to force workers, instead of employers, to pay for their own safety equipment;
filed numerous actions opposing any move to combat climate change;
sought to shield pharmaceutical executives who skirted safety procedures that ultimately killed 11 children;
opposed measures allowing workers to receive a rest period during a full work day;
fought on behalf of lead paint manufacturers found to have poisoned thousands of children;
defended corporations that discriminated on the basis of race and disability;
and spent years defending big tobacco, asbestos companies and chemical companies found to have contaminated water and air.
 
"The Chamber has every right to seek what it believes to be justice in a court of law, even if representing the most deplorable corporate interests," said Vance. "But it must learn that this right to justice belongs not just to their organization, or big business generally, but to all Americans."
 
The report, titled "The Chamber Litigation Machine: How the Chamber Uses Lawsuits to Keep Americans out of Court," can be found atwww.justice.org/USChamber.

 

COURTS: "Study skews view of courts"

Maresa Fawns with the Kentucky Justice Association wrote a compelling, credible, and concerned response to the biased and manipulative study conducted by the U.S. Chamber of Commerce regarding the nation's courts and lawsuit climate.  "The Chamber's" goal is to promote business and profits and resists government regulation, union representation, and anything else that get's between business and profits. 

 If the last two years and the tanking economy has not shown us anything, it has shown us that unrestricted and poorly regulated greed knows no bounds with the consumers being those pilfered by the like of AIG Insurance, banks going down, borrowing from China, and now Goldman Sachs selling mortgages and then hedging their bets with hedge funds so that they could make money on their insider information.

And the recent mining disaster in W. Va. has shown what lack of regulation, frivolous appeals, and short cuts can do to the lives and safety or the American worker and the loss of loved ones and the after-effects on the families.  Don Blankenship and Massie Energy's corporate greed put miners at risk, and some say killed them. See, Judicial Politics, Big Bucks, and Blankenship - a recipe for disaster

With that said, is the Chamber to be trusted?  You decide if a report based upon corporate and insurance counsel opinions on the legal climate is biased and obviously tilted to the business of the lawyers' clients and the incomes of both the clients and the lawyers means anything.

However, objectifying those opinions in a "junk" report is disingenuous.

• TORT DE/REFORM: Is West Virginia a Judicial Hellhole? Hell no, or so say the numbers, 
• Tort Deform/Reform: Is the Chamber of Commerce's Lobbying and Political Efforts Reaping Results? Well, W.Va.Record story entitled "[W.Va.] Supreme Court becoming more buisness friendly" ,  
• TORT DEFORM: Is the legal system or the medical system that needs to be reformed? Sounds like physician, heal thyself.

Sorry for my little ramble, here is Ms. Fawns' op-ed in the Herald Leader.  But with the limitations on corporate campaign contributions being unleashed by the US Supreme Court, our state courts are now at the mercy of big money.  Until now, Kentucky has had a bye to all this, but the future may point to another type of "buy" if the corporate coffers are unleashed.  Just remember, Blankenship's efforts in West Virginia to influence the makeup of the Supreme Court of West Virginia; and it worked.  See, Justice Takes a Hit as Chief Justice "Spike" Maynard recuses himself in case in West Virginia as life imitates fiction from "The Appeal"

Study skews view of courts

By Maresa Fawns

A recent U.S. Chamber of Commerce study is attempting to cause a stir in some parts of the country over what it calls the national lawsuit climate. It ranks each state based on a dubious set of factors for how friendly a state's legal system is for business.

The report is short on facts and credibility. And even more disconcerting is the lack of accountability it promotes — the same lack of accountability that pushed our nation into one of the worst economic messes in history.

The annual lawsuit climate rankings by the Institute of Legal Reform, a branch of the U.S. Chamber of Commerce, rely only on the opinions of corporate defense attorneys who stand to profit when their corporations are shielded from those they have harmed through negligent behavior.

Corporations represented by the Chamber, such as AIG, the insurance industry and pharmaceutical companies, have gone to great lengths to portray our nation's civil justice system as unfair to them and at the same time wreaking havoc on our nation's economy.

This study is yet another tool in their PR campaign.

This year's study ranks Kentucky 40th in the nation in terms of how "fair" its legal system is for business, yet the study itself is the most blatantly unfair form of spin doctoring one can imagine.

For example, if you read a study showing that Duke University was the most popular sports team in Kentucky, would it affect your opinion if you knew only 10 people had been surveyed, and they were all Duke alumni?

In this survey, only those people who stand to gain from eliminating the protections of our civil justice system were asked whether they thought it should be limited. So you can guess their answers.

Aside from the flawed methodology, those promoting this study have caused so much harm to our nation's economy.

They say they are promoting small business, but in reality, companies like AIG — which alone has given the U.S. Chamber $23 million — are pushing for less accountability through our courts.

That is disturbing since it was their own lack of accountability that got them, and consequently our nation, in so much trouble.

Kentucky's civil justice system should be a fair and balanced way of addressing negligent behavior while encouraging a strong, ethical and accountable business community.

The legal and business community should not be at odds, but instead should be seen as allies. By serving as a watchdog against negligent and bad business behavior, good businesses can thrive and grow Kentucky's economy.

Kentuckians should see this and similar reports for what they truly are: fraudulent efforts by billion-dollar corporations to tilt the table in their favor at the expense of consumers.

If they really want to create a more thriving business community, may we suggest they start by cutting back on their million dollar bonuses and instead invest that money in creating good, safe jobs in states like Kentucky that need them.

Maresa Fawns is executive director of the Kentucky Justice Association, a statewide membership organization comprised mostly of trial lawyers.

By the way, others are not taking this slanted study as fact either.

• Louisiana Supreme Court Committee Challenges Chamber of Commerce's
  Legal Systems Survey
  
  

  NEW ORLEANS, March 22 /PRNewswire/ -- A special committee of the Louisiana Supreme Court is questioning the legitimacy of the State Liability Systems Ranking Study released today by the U.S. Chamber of Commerce's Institute for Legal Reform (ILR). The ILR's survey of corporate attorneys, litigators and executives for companies of at least $100 million ranked Louisiana the second-worst legal climate in the nation.

  Noting the historic weaknesses in the ILR survey spelled out in an academic study conducted last year by Cornell University law and statistics Professor Theodore Eisenberg, the committee said the survey does not accurately reflect the reality of the Louisiana court system.

Daniel Mongiardo on Tort Reform

I found the following YouTube video by LTGOV Dan Mongiardo on "Tort Reform" at Jacob Payne's PageOne Louisville Web Site -

Fancy Scripted Videos From Fancy Candidates

TORT DEFORM: Is the legal system or the medical system that needs to be reformed? Sounds like physician, heal thyself.

In the last ten days, I have had two posts on the failure of medicine to heal itself from rampant costs and preventable medical mistakes that kill 98,000 patients a year.  

Reforms to the legal tort system by making victims receive less compensation to pay for their doctors' mistakes have not worked.  See, Herald Leader Op-ed: "Tort reform doesn't cut health costs

The medical system is killing 98,000 people per year as a result of medical mistakes that are entirely preventable.  See, Medical: Preventable medical mistakes kill 98,000 annually

Now, we have an op-ed indicating that unnecessary medical testing would save nearly $1 trillion annually.  ONE TRILLION BUCKS.  Imagine the stimulus from that kind of money.

Well, here is an op-ed post in the Courier Journal

Medical tort reform could save billions

Health-care reform is bogged down because none of the bills before Congress deals with the staggering waste of the current system, estimated to be $700 billion to $1 trillion annually. The waste flows from a culture of health care in which every incentive is to do more — that's how doctors make money and that's how they protect themselves from lawsuits. * * *

Only with experience can anyone quantify the real value of realigning incentives. But surveys and studies repeatedly confirm what every doctor knows — that they go through the day ordering tests and procedures that aren't really needed.

This is not a new tune, either here or elsewhere from 2008;

MEDICAL: 238,337 potentially preventable deaths of US Medicare patients during three year period shows where the real problem lies in the tort reform crisis? Is the AMA, KMA, and Chamber of Commerce listening?

Medicare Deaths

Insurance Industry Profits Through the Roof!;

Appalachian News Express editorial entitled "With malpractice claims declining, insurers should be held accountable" busts the medical insurer's claims for higher premiums is not accurate

Herald Leader Op-ed: "Tort reform doesn't cut health costs"

It's been awhile since I posted on tort reform's failure to provide better care or even save costs.  Actually, it's only been a week since I posted on how preventable medical mistakes result in 98,000 deaths per year!  See, eg., Medical: Preventable medical mistakes kill 98,000 annually. 

Now the Herald Leader has posted a pointed op-ed entitled Tort reform doesn't cut health costs.  Click here for the New Yorker story referenced in the following op-ed.  Click here for our other posts on Tort Deform/Reform.   Senator Mitch, insurance industry, and the
Chamber of Commerce need to look elsewhere for the cause of rising health care costs and dropping quality of care besides demonizing trial lawyers since the research does not match up to blaming the lawyers.  Whether it's bad insurance money investments, the health profession itself, welllllll that's another story.  But costs are going up, and people are dying while the insurance industry and politicians play their violin and Rome burns.

Sen. Mitch McConnell's No. 1 idea for fixing what ails our health care system is to limit the rights of those maimed by medical malpractice.

But states that have enacted curbs on what McConnell calls "junk lawsuits" have yet to see the cost savings promised by McConnell and other proponents of tort reform.

On the contrary, Texas capped malpractice damages in 2003 only to experience a steep rise in health insurance premiums and medical costs.

Medicare spending rose 24 percent in the three years after punitive damages were capped at $250,000, according to the Dartmouth Institute for Health Policy.

One of the most expensive health-care markets in the country is the Texas city of McAllen. Only Miami, which has much higher labor and living costs, spends more per person on Medicare.

Boston surgeon Atul Gawande visited McAllen and wrote an account for The New Yorker, "The Conundrum: What a Texas town can teach us about health care" that's required reading for anyone trying to understand this admittedly baffling topic.

One night at dinner with six local doctors he asked why the average cost per Medicare enrollee had soared from $4,891, about the national average in 1992, to almost twice the national average of $15,000 per enrollee in 2006.

For perspective, the per capita income in McAllen is only $12,000.

Several of the physicians said doctors practiced defensive medicine to protect themselves from the city's especially aggressive lawyers; they ordered extra tests and procedures which drive up costs.

But what about the strict limits on malpractice damages. Haven't lawsuits gone down?

"Practically to zero," one of the docs said.

What's finally revealed is that doctors in McAllen are heavily invested in medical technology and imaging and surgery centers. They order lots of tests and procedures because they directly profit from them. They think of what they do as a business.

The critical choice facing this country is whether health care will continue to go the way of McAllen or whether it can be guided toward a Mayo Clinic model in which doctors work together to deliver the best care with the fewest tests and procedures.

We should all hope the Mayo model wins because the outcomes for patients are far better. Also, at the current rate, health care costs will soon eat up so much of the federal budget that this country will no longer be able to afford to defend itself.

The Texas experience with malpractice is not unique. Researchers at the University of Alabama at Birmingham surveyed 27 states that have limits on non-economic damages and discovered no savings for health care consumers.

McConnell is offering a few other of what he calls "common sense" ideas. He favors some insurance reforms, such as covering pre-existing conditions, and incentives for living a healthful lifestyle.

He also says individuals buying insurance should be entitled to the same tax deductions as companies buying insurance for their employees.

McConnell acknowledges that health care reform is necessary, but his prescription is mostly a placebo.

To read the NewYorker article, "The Conundrum: What a Texas town can teach us about health care," go to www.newyorker.com/reporting/2009/06/01/090601fa_fact_gawand.

Medical: Preventable medical mistakes kill 98,000 annually

In the midst of the health reform and health insurance changes debate, I find the following investigatory story to be very disturbing. 

Even before the changes are made to increase the availability of insurance and reduce the costs, the medical profession already kills with negligence 98,000 annually!

With tort reformists already wanting to put a cap on the amount of the recoveries and/or take away those injured or killed by medical mistakes to have a jury decide their cases, how do they explain mistakes that kill?

One proposal is to place the decision on negligence and damages into the hands of medical experts seems absurd in light of the fact these medical experts and their health systems kill, not a few, nearly a hundred thousand yearly.

How many more will pay the price for the health care profession's hubris?

Responsibility will eventually evaporate in the absence of accountability and the drive for dollars.

Here's the story:

Dead by Mistake

Within health care hides massive, avoidable death toll

Experts estimate that a staggering 98,000 people die from preventable medical errors each year. More Americans die each month of preventable medical injuries than died in the terrorist attacks of Sept. 11, 2001. Hospitals slow to adopt lifesaving practices A look at AHRQ's budget Timeline of events Terminology About the Medical Error Surveillance Tool Introduction Video Slideshow

MEDICAL: 238,337 potentially preventable deaths of US Medicare patients during three year period shows where the real problem lies in the tort reform crisis? Is the AMA, KMA, and Chamber of Commerce listening?

I once heard it said the best remedy for "tort reform" was for the doctors to quit killing patients.  The following story from Day on Torts referencing a study posted at seems to make the point, again.  Of course, the American Medical Associal, the Kentucky Medical Association, and the U.S. and Kentucky Chamber of Commerce still believe the answer is capping the recovery and denying claimants their right to a jury trial so that medical malpractice insurance can remain affordable (but that is another story; see, e.g., Insurance Industry Profits Through the Roof!; and even in Florida - Health Insurers Enjoy $550 Million in Profits in Florida).

UPDATED with story on insurance industry outlook for next year in a pro-insurance web site indicating a pretty good year financially and any issues were "cyclical" and based on "ROI" or returns on investments! Click here.

As I have said many times before, the debate over insurance company profits and their causes is not a slam dunk in favor of the insurance industry as portrayed by many of their pundits.  And to take away the citizens' right to a jury trial for the benefit of a short term profit at the expense of denying full and fair compensation to injured people is not a very good idea.

Medicare Deaths

"From 2004 through 2006, patient safety errors resulted in 238,337 potentially preventable deaths of U.S. Medicare patients and cost the Medicare program $8.8 billion, according to the fifth annual Patient Safety in American Hospitals Study."

So begins this article found on the MSN website.

Now, do not read more into this story and assume that every failure to prevent a preventable death constitutes negligence.  However, it does raise concerns over the negligence aspect. Furthermore, the manner in which these numbers were obtained and the case by case analysis to conclude the death was preventable are not above question either.  In any event, "patient safety errors" AND "preventable deaths" in the same sentence involving 238,337 lives lost is a red flag.

Appalachian News Express editorial entitled "With malpractice claims declining, insurers should be held accountable" busts the medical insurer's claims for higher premiums is not accurate

The following opinion-editorial from the Appalachian News Report provides a stark contrast with positions taken by the Kentucky Chamber of Commerce, the Kentucky Medical Association, and the Kentucky Institute of Medicine on the need for drastic revisions to the civil justice system in Kentucky. UPDATED. I apologize for not giving credit to the actual writer, Joanne Doroshow, who tendered the piece to the App. News Express!!

And those concerns raised in the Appalachian News Report editorial were noticeably absent from a recent "State of Affairs" episode decrying the loss of physicians in Kentucky and using the "frivolous" lawsuits as the whipping boy for the problem when there is another side to this issue.

Again, the other side of the story was glaringly absent in the "State of Affairs" story which did nothing more than present one side of a lobbying groups presentation which relied upon two listeners to question the claims!

Fair and balanced? 

Just remember it took nearly two thousand plus years of Anglo-American jurisprudence to develop a civil justice system in which compensation was based upon the injuries and damages sustained by the victim rather than the wrongdoer's ability to pay AND for that determination to be made by a jury selected from the community. 

First the op-ed piece, followed by a link to the puff piece from State of Affairs.

With malpractice claims declining, insurers should be held accountable

In 1997, Kentucky resident Bill Rogers, then 52-years-old and married to his wife Lela, went to the hospital for a treatable infection on this thigh. Doctors began treating him alright — unfortunately, with the wrong antibiotics. The infection got worse and spread. Within a month, doctors had to amputate Bill’s penis.

In the heated debate over medical malpractice insurance for doctors, there is typically little discussion of cases like Bill Rogers. Indeed, each year up to 98,000 people die from medical errors in hospitals. Hundreds of thousands more are injured, many in catastrophic and life-altering ways like Bill.

Rather than helping to reduce errors and weeding out the small number of doctors responsible for most malpractice payments, the insurance industry has focused its efforts on blaming patients.

They said that patients who file legitimate medical malpractice lawsuits, like Bill Rogers, are forcing them to raise doctors’ insurance rates. At least that’s what they tell lawmakers and the public.

What they tell Wall Street, however, is a different story. As revealed in a new report by former Missouri Insurance Commissioner Jay Angoff, the CEO of APAC, one of Kentucky’s four medical malpractice insurance companies, had what Angoff called two ebullient conversations with Wall Street analysts last year.

The executive told these analysts that because of how little the company had been paying out in malpractice claims, its claims managers now had little to do. In response to a stock analyst’s comment that “the golf games of those claims managers must be pretty good,” the CEO responded, “we’re trying to turn them into the Maytag repairman.” He also said that malpractice claims have decreased to such an extent that there is not enough work for malpractice defense lawyers.

Indeed, based on data from medical malpractice insurance carriers’ Annual Statements filed under oath each year, Angoff found that all four of the leading Kentucky malpractice insurers have been paying out substantially less in claims than they initially estimated they would pay out. Doctors have been overcharged for several years as insurance industry surpluses have ballooned to excessive levels.

Clearly, this study raises continuing concerns about the accuracy of the data submitted by insurance carriers to regulators, and the legitimacy of the industry’s statements about why doctors have been price-gouged. It seems clear that lawmakers have been misled about the medical malpractice insurance industry’s financial condition and the reasons behind the unfair increases in insurance premiums for doctors. Incredibly, under current state law, the Kentucky insurance commissioner has no authority to order refunds to doctors who have paid excessive rates.

Yet despite unfair price-gouging, Kentucky is still attracting plenty of physicians. According to American Medical Association data, the overall doctor pool in Kentucky has increased every year over the last decade, an total increase of 2,302 doctors.

Nobody denies that doctors’ insurance rates sometimes reach burdensome and unfair levels. But time after time, the data teaches us the same lesson: weak regulatory laws and insurance industry mismanagement are the culprits. And while the vast majority of doctors are devoted and competent professionals, a small minority commit egregious malpractice that destroy innocent patients’ lives, like Bill Rogers. Let’s not blame patients for insurance problems they did not create.

And here is the program from wfpl.org on Feb. 8, 2008.

Is There a Physician Shortage?

As little as 10 years ago, the US had an oversupply of physicians. My how times change. According to a recent report released by the Kentucky Institute of Medicine, Kentucky is already near the bottom of the barrel, ranking 32nd out of 50 in patient to doctor ratio. With factors such as healthcare costs, aging population and litigation concerns on behalf of physicians, the shortage is predicted to worsen. So what is the solution? How can we assure adequate physician levels in both metropolitan and rural areas of the state? Join us on Friday when we explore the issue of the coming physician shortage. Continue the conversation on our weblog, www.soablog.org.

Listen to the show

And a program last week had an interesting link which raised another issue seemingly ignored within the context of a claimed physician shortage, eg. Doctors Turning into Managers in Record Numbers. 

Of course, claiming there is a shortage does not a shortage make as the number of physicians may be disproportionately placed based upon geography, specialty or a host of other factors.

TORT DE/REFORM: Is West Virginia a Judicial Hellhole? Hell no, or so say the numbers

My home state of W. Va. seems to be getting a bum rap by the US Chamber of Commerce and the American Tort Reform Assoc.

A recent study confirms part of this.  The following is the story by the AP.  But the complete report entitled The Future of the West Virginia Judiciary: Problems and Policy Options by political science professors Richard Brisbin and John Kilwein.

New state report finds decline in ‘tort’ filings

By Lawrence Messina
Associated Press

CHARLESTON — Researchers at West Virginia University report finding a good deal of sound and fury, but few facts to support the notion that the Mountain State is a “judicial hellhole.”

Available data mined by political science professors Richard Brisbin and John Kilwein shows that the number of civil cases filed in the state’s courts dropped by nearly 10 percent between 1984 and 2005.

National statistics, meanwhile, suggest that “tort” filings — lawsuits that seek damages for alleged injuries or wrongs — are at a 10-year low. And West Virginia ranks 46th among the states for cases filed per-capita, the pair write in the latest issue of the West Virginia Public Affairs Reporter.

But as the authors note, such figures have yet to refocus the ongoing portrayal of West Virginia as a place beset by meritless lawsuits and overly generous juries.

“Business interest groups and the media produce stories about abusive litigation that neglect important contradictory information, rely on erroneous information, make assumptions based on inaccurate anecdotes, or use inadequate evidence and slogans generated by the ’research’ arms of interest groups who neglect normal standards and practices of empirical social scientific inquiry,” the authors concluded.

“As a social scientist, what is so troubling is looking at what they do. It’s a totally unscientific, self-fulfilling cycle,” Kilwein, with WVU’s Institute for Public Affairs, told The Associated Press. “To them, we’re this hellhole without them ever trying to measure whether we are.”

An example is the much-touted, so-called “tort tax.” It purports to reflect the cost of “frivolous” lawsuits on each household. The underlying data cited in that claim “provides only an inferential ’estimate’ of the economic costs of personal injury litigation,” the article said.

On this topic, the researchers take to task “Unleashing Capitalism.” Edited by their WVU colleagues, the recent book advocates a libertarian view of the state and its problems.

The relevant chapter “argues that the cost of legal services in the state is growing faster than state domestic product and thus is harmful to business.” Brisbin and Kilwein contend that the chapter “mixes personal liability costs with the costs of other categories of all other legal activity (family, contract, property, administrative, bankruptcy, taxation, and criminal).”

Michael Hicks, a Marshall University researcher who compiled that chapter, questions whether Brisbin and Kilwein understood his findings or the general effect of civil litigation on economies.

Kilwein disagrees. The “tort tax” claim has also been challenged by other groups, including FactCheck.org when it became a topic of a political ad from the U.S. Chamber of Commerce.

“Even the author of the study cited by the chamber says its ad is ’misleading,”’ the nonpartisan analysis group found. “The fact is his study makes no attempt to specify which lawsuits are legitimate and which can be considered abusive. Furthermore, the study specifically warns against drawing any conclusions about the costs and benefits of the judicial system and even acknowledges that the benefits could outweigh the costs.”

Brisbin and Kilwein echo that view. They wrote that they “could locate no independent scholarly analysis that employs actual data on insurance payments for personal injuries and data on court damage awards and insurance costs in a multistate comparative research design.”

Toward that end, the authors identify 11 pieces of data that could shine a bright light on the civil justice system — if someone would actually collect them. They include figures reflecting insurance payouts, compensatory and punitive damage awards, lawyer fee charges and rulings by judges that declare specific lawsuits frivolous.

“It would be useful for the Legislature to require the courts to keep records on how many Rule 11 motions are filed, granted, rejected, and settled,” the article noted, citing the mechanism meant to root out meritless pleadings.

Hicks, the Marshall economist, said some of that data is already available. Collecting the rest, though, “simply puts very costly burdens on courts and state and local government that is unjustified,” he said.

Kilwein isn’t holding his breath that the U.S. Chamber and its allies will fund the necessary research, even though they’ve spent millions advocating “tort reform.”

“I think the interest groups don’t have any interest in the data being collected,” he said. “They don’t need to. They’re true believers ... It’s almost like a religion for those folks.”

And the ongoing campaign to paint West Virginia as lawsuit-happy continues. The business-backed American Tort Reform Association is slated to release its annual “Judicial Hellholes” survey later this week.

Past editions have cast West Virginia’s as the nation’s worst legal climate. They have also been prone to error. One falsely reported that chemical exposure class actions filed in several other states had been filed there. Another labeled Gov. Joe Manchin as “Governor Bob Manchin III” and Ohio County Circuit Judge Arthur Recht as “Arthur Hecht.”

Bolstering Brisbin and Kilwein’s research is their survey of West Virginia’s magistrates and circuit and family court judges. More than half the circuit judges responded, and none of those agreed that the state has suffered “explosion of frivolous litigation.”

“When asked what is the greatest problem facing the West Virginia Courts, no circuit judge cited frivolous civil lawsuits,” the article said.

They and the other judicial officers queried instead identified other concerns, including pay and a spike in family court filings. The 2005 mail survey also found that only one-fourth of the circuit judges supported the current method of partisan elections to select the state’s judiciary.

Kilwein said he hopes the Legislature and other policy makers embrace those results as well.

“The family courts are getting hit hard. That’s where we’re having a problem,” he said. “The courts are busy. They’re underfunded. I think the people who work in the courts do a fantastic job with limited resources.”