Halloween came early for Wanita Renea Young, 49, of Durango, Colorado in 2004. On July 31, Taylor Ostergaard, 17, and Lindsey Jo Zellitte, 18, knocked on her door at 10:30 pm. The simple act of knocking was so frightening that sometime the following day Ms. Young went to the emergency room to be checked out for a heart attack she thought the girls gave her the previous night. Of course, the girls weren't just knocking on doors that night, they were doing something much more terrifying: delivering cookies.
Ostergaard and Zellitte, obviously scheming in a way only the truly evil can, set out to destroy their neighborhood by baking cookies. They took batches of these warm, untainted treats to all of their neighbors and included paper hearts with the message, "Have a great night." What is the country coming to?
Of course, it sounds like a good-natured human-interest story. Ms. Young discovers that there are nice girls in her neighborhood. She discovers that, even in the cynical age in which we live, some high school students would rather give a small treat to their neighbors than engage in mischief. And for their friendly act, the two girls were rewarded with a lawsuit and a nearly $900 judgment.
Ms. Young wasn't content to just accept the kindness of a neighbor. She declared that the knock on the door, not at two or three a.m., but at 10:30 pm, sent her into an anxiety attack. Judge Doug Walker agreed, saying that 10:30 was much too late for girls to be out and about doing good deeds. Ms. Young, for her part, wasn't just looking for her medical bills. She was offered payment by the girls' families, but refused and sued. She was looking for a large cash award. Why?
Why is because of men like Frank Azar of Denver and Marks & Harrison of Richmond. Fifty years ago, these men would have been called "ambulance chasers," and looked down their nose at by the legal community and polite society. These men would have worn cheap, polyester suits and been seen skulking around hospitals looking for their latest mark. Now, they don't have to.
With flashy special effects and paid celebrity endorsers, these lawyers ply their trade on cable, afternoon and late night TV. They talk about the money "you are entitled to." And they promise that it "won't cost you a cent until you win." That's a pleasing offer, isn't it? Not a penny out of pocket? Heck, that's better than the lottery. With that, at least, I have to buy a ticket.
The tort system in the United States is a joke, and it's costing us more every year. Most of us don't see the bills for malpractice insurance, so we don't realize how much those bills are costing us. To put it simply, the cost of lawsuits is increasing the cost to the insurance companies. The insurance companies pass the cost of large jury awards to their clients, doctors, through higher premiums. Doctors pass the cost onto patients, or patients' insurers through higher fees. There is a squeeze, but it isn't Frank Azar or James G. Harrison III who picks up the tab. Ultimately, the patients foot the bills, through higher health insurance premiums or lower wages.
President Bush has proposed caps on medical liability judgments to help protect doctors and make insurance premiums lower. This may seem like a good first start, but it's really a false start. If trial lawyers see one cash cow put in a protective barn, their attention will simply shift to another target. From gun manufacturers to fast food restaurants, the big money shysters are already chasing the next big settlement. The President needs to offer a larger and more complete reform.
With a "Loser Pays" tort system, the Frank Azars of the country will shrivel up and die. Without the ability to promise "you don't pay a cent until you win," they lose their biggest marketing gambit. These lawyers don't want to go to trial; they want doctors and insurance companies to settle quickly and quietly. They don't need big judgments because TV makes it possible for them to work on huge volume with low margin. Forcing their clients to foot the bill when the case is lost will cut into the margins and eliminate a large portion of the incentive they currently have.
Opponents of Loser Pays, mostly the large trial lawyer lobby, claim that it will harm those who need justice. Loser Pays, they say, will mean that tort justice will exist only for the wealthy. That hasn't been in the case in Canada, the United Kingdom and the rest of the industrialized world. It won't be the case here. Those with legitimate tort cases will have their day in court, and they will win. Those leeches on society who advertise on TV to cast a wide net won't.
Loser Pays will reinvigorate the US economy by lower the costs of everything from stepladders to healthcare. It will restore some degree of personal responsibility and personal accountability, by forcing Americans to stop thinking about who they can sue and start thinking about how they, themselves, were culpable. No one loses with Loser Pays; except maybe, the losers on TV.