Failure™ Magazine

And Justice For All?

Debunking the myth of lawsuit abuse.

Written by Jason Zasky   Filed under Business

So why do so many Americans support tort reform?
If you ask Americans, “What is your definition of a frivolous lawsuit?” they basically think it is any lawsuit except one that they might file. You hear people who actually end up having to file say, “My suit wasn’t frivolous. I’m not one of those people.” There’s this perception that tort reform only limits the “crazy” lawsuits. People don’t realize that tort reform affects their own ability to sue, and that’s partly because it’s sold that way by those who are most interested in passing it.

Do Americans really want to go back to the early 20th century, where the public had almost no legal protection from unscrupulous businesses?
I don’t think so. Most people just don’t think about this stuff. It’s not like health care where you regularly see your doctor or have a regular interaction with the system. Most folks never have to deal with the legal system unless they are getting divorced. It’s only after something really bad happens to them that they find out the rights they thought they had aren’t there for them.

How did we get to the point where Americans believe that our society is too litigious?
For one thing, insurance companies and the tobacco industry spend a lot of money persuading them that is the case. Also, they circulate a lot of “loony lawsuit” stories. But when you look closely you find that these lawsuits are either not true or that the facts are remarkably different. And most of the loony lawsuits are filed—without the assistance of a lawyer—by prisoners or people who are mentally ill. It doesn’t necessarily mean that the claims are frivolous. It’s just that without the help of a lawyer they don’t do it properly and that makes for things you can make fun of. So some goofy things get into the system, but most of them don’t go anywhere.

Can you tell our readers the story of Frank Cornelius?
Back in the 1970s Cornelius worked as an insurance industry lobbyist in Indiana and helped pass the state’s cap on medical malpractice damages. Afterwards, he left the insurance lobbying business and sold used cars—among other things. One day he felt out of a chair and injured his left knee. He needed [routine arthroscopic] surgery and after he got home from the hospital he was in an inordinate amount of pain. He tried to get hold of his surgeon, but the doctor was going on a ski trip and told Frank’s wife, “Just get him a bedpan and I’ll see him when I get back.” It turned out that he had a complication from the surgery [reflex sympathetic dystrophy, a chronic neurological syndrome often brought on by surgery or trauma], and at some point the condition became irreversible. Then while he was having physical therapy to treat this complication, his therapist shocked his leg with a piece of rehab equipment. After that he was in more pain than ever. Then he had to have more surgery because he developed a blood clot in the leg. After that operation he nearly bled to death, and as the surgeons were trying to save him the doctor who put the breathing tube in punctured his lung.

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