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Posted on 11/19/2001 5:41:18 AM PST by Constitution Day

Lawyers’ Windfall Act of 2001

November 2, 2001

According to the Center for Responsive Politics (www.opensecrets.org), lawyers contributed $75 million to Democrats in the 2000 election cycle. Moreover, as reported by the American Association of Health Plans, lawyers have contributed $639,000 to John Edwards since 1997, making him one of the largest beneficiaries of trial lawyer largesse.

So, it should be no surprise to anyone that when Edwards looked around for the most pressing problem facing America today, searching for that chronic problem that he would devote his energies to solving, he found a problem that few even knew existed. I refer, of course, to the desperate need to increase the income of trial lawyers. He is a co-sponsor of the Lawyers’ Windfall Act, which is also known as the Patients’ Bill of Rights. This monstrosity has passed the U.S. Senate. The House passed a modified version, with all of the protections for patients, but with reduced benefits for lawyers. It is up to a House-Senate Conference to settle the differences, but don’t expect any compromise by Senate Democrats on the issue of payola for lawyers.

One of the many misleading statements made by Democrats in support of this bill is the fact that HMOs are protected against lawsuits. But, there is a legitimate reason for this protection. Consider the following scenario: A trial lawyer, after a vacation in Las Vegas, finds himself unable to meet the $4,000 payment on his yacht next month. So, he scans the obituaries, calls each bereaved family until he finds a “victim” who was a member of an HMO. Next, he gets the list of medications administered, and looks in his address book for an “expert” who has a differing opinion about the medication administered. Because medicine is an inexact science, it is relatively easy to find an honest difference of opinion. But, if you are willing to pay the witness, it is a piece of cake. The next step is to file a $100,000 lawsuit against the HMO. After considering the $50,000 in legal fees that it will take to defend the frivolous lawsuit, the HMO agrees to settle for $10,000, which, of course, nets $4,000 for the lawyer. Payment made! Time to concentrate on next month’s payment.

Now, where does the $10,000 come from? If you’re a typical liberal who believes in the tooth fairy, you might think the HMO executives are going to reduce their own salaries to pay for it. Or, you might even think that the stockholders are going to pick up the tab. Think again. The HMO will simply raise rates, so that the hapless members of the HMO will end up paying for a yacht they can’t use.

There are several possible amendments to the bill that would retain the protection for patients while removing the potential for abuse by trial lawyers. A proposal to reduce the percent of an award going to the lawyer from 40 percent to 10 percent would help, but it never had a chance.

Another commonsense change would have been to allow the HMO to countersue a lawyer who files a frivolous suit — note that I said sue the lawyer, not the plaintiff. But this would really tread on hallowed ground, the divine right of lawyers to file frivolous suits for fun and profit.

In the interest of full disclosure, Republicans received $5 million from HMOs in the 2000 cycle, and $27 million from insurance companies, for a total of $32 million. Compare that to the $75 million that Democrats raked in from lawyers.

Is there anyone who doesn’t know why attorney Glenn Bergenfield, and his wife, of Princeton, N.J., contributed $4,000 to Edwards’ 1998 campaign? Or, why the Bonina family, of the Brooklyn, N.Y., firm Bonina & Bonina, contributed $5,500 in 1998? The benevolent Boninas chipped in another $5,000 in December 1999, at a time when Edwards was not running for anything. Considering Edwards doesn’t come up for re-election until 2004, ask yourself why Alexander Blewett III, an attorney in Great Falls, Mont., contributed $4,000 in June 1999? These contributions are listed on the Federal Elections Commission Web site (www.fec.gov). Democrats are hoping that you won’t look.

The contributions listed above are only the tip of the iceberg, of course. If trial lawyers already have enough disposable income to pump this kind of money into out-of-state Senate campaigns, five years into the future, then perhaps, just perhaps, Edwards is mistaken about lawyers’ income being a chronic problem.

John Fogle operates a computer software company in Hendersonville.

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