This is so typical of the Bush Administration ... 
kashii:
kashii: Law.com
Bush Targets Trial Lawyers With New Ad
Tuesday October 12, 3:01 am ET
Jeff Blumenthal, The Legal Intelligencer
President Bush is making Pennsylvania trial lawyers one of the focal points of his campaign in this state, one of the nation's most hotly contested electoral battlegrounds.
As Sen. John Kerry, D-Mass., appears to have opened up a lead over Bush in several recent polls of Pennsylvania likely voters, the president has aimed his advertising howitzer at the state's contingent of trial lawyers in a series of television and radio spots that began airing heavily in the Philadelphia media market this past weekend.
Several prominent trial lawyers fired back Monday, claiming Bush is using them as a scapegoat even as he protects his corporate campaign contributors in the insurance, pharmaceutical and health care industries.
On the stump last week in Wilkes-Barre, Bush contrasted his record on the med mal insurance crisis with Kerry. Bush stressed his support for capping non-economic damages at $250,000 and enacting other measures to eliminate frivolous lawsuits. Meanwhile, he criticized Kerry for opposing such measures. He said the Democratic nominee also showed his close alliance with trial lawyers by picking one -- Sen. John Edwards, D-N.C. -- as his running mate.
Plaintiffs lawyers have consistently rejected the argument that excess verdicts have contributed to rising medical malpractice insurance rates, citing data that contests arguments made by tort reform advocates. One Bush-Cheney television advertisement running in Pennsylvania says Kerry's support of trial lawyers is responsible for contributing to a women's health emergency that has reduced access to care.
The text of the commercial, which includes ominous background music and visuals, reads as follows: "For Pennsylvania women, it's now an emergency. Our hospitals ... closing maternity wards. OB/GYNs forced out. Three-month waits for mammograms. ... The reason: frivolous lawsuits from out-of-control personal injury trial lawyers. And John Kerry and the liberals in Congress stand with those trial lawyers. They've voted to block medical lawsuit reform 10 times. And that's why our good doctors are leaving."
According to a press release posted on the Bush-Cheney campaign Web site, Pennsylvania is the only state to see a localized version of the ad. A generic version of the ad is running on national cable television and "select local markets," the campaign said.
The Bush-Cheney campaign also provided the media with information to support the claims made in the ad. Much of the documentation came from Politically Active Physicians Association (PAPA), a group that supports limiting medical malpractice lawsuits. It cited the 2002 closing of the maternity ward at Delaware County's Mercy Community Hospital, Philadelphia's Methodist Hospital closing its labor and delivery department in 2002, Delaware County's Mercy Fitzgerald Hospital closing its obstetrics unit in 2003 and Philadelphia's Chestnut Hill Hospital losing eight of its 14 OB/GYNs in recent years while still delivering 1,100 babies each year.
TARGETED MESSAGE
G. Terry Madonna, chairman of the center for public affairs and politics at Franklin & Marshall College, said the GOP's rhetoric might play well in target areas such as the Philadelphia suburbs and the Lehigh Valley, and comes as the latest Keystone Poll shows Kerry leading Bush in Pennsylvania by a 6-percent margin among likely voters.
"I've done surveys on this issue, and depending on the way it's phrased or explained, Pennsylvanians support caps and med mal reform," Madonna said. "And [insurance premium] rates are especially high in the Philadelphia suburbs, where Kerry now leads by 7 percent.
"The president is attempting to use med mal as a wedge issue with a subsection of voters, and it will work in some instances," Madonna said. "But I think the more important argument than trial lawyers to voters is that health care costs are going up. In and of itself, beating up on trial lawyers is not a real reason to vote a certain way. Trial lawyers are just the vehicle to get to health care costs."
Obermayer Rebmann Maxwell & Hippel partner Thomas Leonard, a politically active Democrat, said he believes that the president is implementing a strategy geared toward siphoning undecided voters away from Kerry in the Philadelphia suburbs and Lehigh Valley.
"This is not an issue that they wanted to lead with or else they would have hit the air with it much earlier than they have," Leonard said the of the Bush-Cheney campaign.
"It's a slash-and-burn strategy that can work if you are a challenger, but it's a suspect strategy if you are an incumbent. The voters want to know what you've done for them in four years as president and how you'll support them. People won't be supporting a presidential candidate because their running mate is a trial lawyer or the CEO of Halliburton. The key issues they care about are Iraq, the war on terror, jobs, crime and health care. And when you have to move outside of those issues to make your point, it shows some weakness."
Kevin Madden, the regional spokesperson for the Bush-Cheney campaign, said that the president is stating that he believes the high costs and decline in quality of health care can be directly attributed to frivolous lawsuits filed by the state's trial lawyers.
"There are a number of studies, including one from the General Accounting Office, that shows trauma centers in Pennsylvania are closing and access to health care in rural areas has declined," Madden said. "And if John Kerry and John Edwards are elected, there will be two types of hospitals: those that are sued and those that will be sued. Both have posed an obstacle to medical malpractice reform in Pennsylvania, and the president wanted to make sure voters understand that."
DOCTORS NOT LEAVING
Feldman Shepherd Wohlgelernter & Tanner partner Carol Nelson Shepherd, a past president of both the Pennsylvania and Philadelphia Trial Lawyer Association who regularly handles obstetric/childbirth injury cases, said such talk flies in the face of the truth. She said the fact that doctors are applying for abatement of MCARE surcharges shows that they are not leaving the state and that there has not been a decline in licensed physicians.
"The public is being mislead by a PR campaign conducted by doctors, particularly in Pennsylvania," Shepherd said. "In reality, 1 percent of the entire cost of health care comes from litigation, compared to the rising cost of pharmaceuticals and other elements like the rising number of senior citizens in Pennsylvania. It's only a small part of a large, complex issue."
Shepherd said that the compromise legislation passed two years ago by the state legislature that brought with it the certificate of merit requirement and restrictive venue change rules has helped to curb medical malpractice filings in Philadelphia by 50 percent and in Pennsylvania by 30 percent in 2003.
Longtime PaTLA lobbyist Mark Phenicie said that anti-trial lawyer efforts in state capitals and Washington, D.C., have been backed largely by the insurance industry as well as by the pharmaceutical industry and health care providers.
"This is not an issue that really moves voters, even in the Philadelphia suburbs," Phenicie said. "[Former Pennsylvania Attorney General D. Michael] Fisher tried to use it against [Gov. Edward G.] Rendell and it didn't work. And Bush tried it here against [former Vice President Al] Gore four years ago and it didn't work then, either."
Anapol Schwartz Weiss Cohan Feldman & Smalley partner Larry Cohan was one of the few local trial lawyers to support Kerry over eventual running mate Edwards in the Democratic primary earlier this year.
"This whole thing is really a smoke screen because filings are down dramatically," Cohan said. "What this is really about is that insurance companies need to keep their profits up during a bad economy. Doctors are mistaken if they think they will be helped by the re-election of President Bush. Kerry will help them get better payments from the HMOs and with Medicare and Medicaid.
"Putting a cap on damages really won't affect their bottom line. We need someone who will hold the HMOs accountable. Unfortunately, George W. Bush doesn't show a lot of recognition for the rights of ordinary people. But if there were no trial lawyers, asbestos would still be sold, bad drugs would still be killing people, unsafe products would still be on the market and catastrophically injured people would have no legal recourse. Caps only help the insurance companies."
Pennsylvania Trial Lawyers Association president Jack Gallagher, who practices in Media, admits that the negative image of trial lawyers combined with the massive PR campaign mounted by corporate America against them has made it difficult to make them look like anything else but the villains of the medical malpractice story.
"Lawyers are an easy target," Gallagher said. "Everyone hates lawyers except for their own and that's why President Bush might get some traction from this. I have some clients that are loyal Republicans and they eat that stuff up. They just have a blind spot for lawyers, even though they heavily rely on their own lawyer."
Unlike Leonard, who thinks the Bush strategy is meant to draw in swing voters, Philadelphia Bar Association chancellor Gabriel L.I. Bevilacqua said he believes the president is using the issue of med mal reform to energize his base.
"It's a wedge issue like gay marriage," Bevilacqua said. "The issue is so broad that to lay it all at the foot of trial lawyers is really dishonest. The doctors that are leaving are doing so due to reimbursement issues and that falls squarely on the HMOs."
Robert Surrick, an attorney who just joined PAPA as its chief spokesperson, supported the president's arguments.
"I think the president is dead on," Surrick said. "This crisis was caused by trial lawyers and it's leaving doctors looking to move out of the state and women at risk, particularly poor women."
He said in southeastern Pennsylvania alone, 10 law firms accounted for $160 million in recoveries from local doctors and hospitals between 2001 and 2003.
"That means they are sucking hundreds of millions of dollars out of the healthcare system," he said. Surrick added that Senate Bill 9, which stalled this past summer as state legislators concentrated on slot machines, could have brought more meaningful change, but trial lawyers fought its implementation.
In his debate last week with Vice President Dick Cheney, Edwards said that in order to prevent frivolous lawsuits, he and Kerry favor the use of independent experts to certify the validity of any case before a complaint is filed, and also favor stiff penalties on lawyers who filed dodgy cases.
On his campaign Web site, Kerry wrote that he "strongly opposes capping damages in medical malpractice lawsuits," saying such a move only affects the "least meritless cases and denies justice to those who suffer life shattering injuries."
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