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Education's Lawyer Problem

Brian Sweeney Jr.

As a first year medical student I was given the opportunity to shadow the legal department at Tufts Medical Center once a week. It was a chance to see how malpractice suits were handled by the institution. The head of the department said something to me which has stuck with me for years. He bluntly stated that malpractice suits often had nothing to do with malpractice. The decision process to fight a case was more commonly based on the sympathy the plaintiff would gain from a jury and judge. A secondary concern was how physicians and hospital staff would come across in testimony.

There are a lot of other factors I have seen come into play over the years. I have seen patients turned down by lawyers when malpractice has taken place because the feeling is the damages would worth the time and money put into the case. I have seen patients refuse to even consider a suit because they absolutely adore a physician they have known for years. Fault is iften a secondary or tertiary concern.

Beloved liberal Howard Dean was partially honest about why tort reform was not part of Obamacare during the health care debate. He noted the trial lawyers, now the American Association for Justice, are a powerful group. He said nobody wanted another enemy. The part he left out was the money the Democrats get from lawyers every year.

The United States spends twice as much on tort as a percentage of GDP as other Western countries. The only country even somewhat close in legal spending is Italy. Companies keep armies of lawyers employed. Why? All you have to do is open up Google and type in "lawsuits against Google" to get an idea of how ridiculous things have become in this country. Lawyers know companies like Google have money they can go after.

The Anchorage School District does not have pockets as deep as Google. It does have a budget of $862M for 2013-14. That is about $17K per student and includes all debt payments and expenses. It is a plump target for lawyers.

In 2008 a lawsuit was born when a kindergartener fell down running to meet his mother outside Rogers Park Elementary School. He fell down in an area of pine shrubs. Tragically the material penetrated into the frontal lobe of the brain and caused permanent damage. This left the child and family with problems that will live with them the rest of their lives. It also means a lot of medical bills.

Judge Sen Ten decided the Anchorage School District (ASD) should be help responsible and awarded the family $4.5M as well as money for emotional distress. ASD covers $1M and the rest is covered by insurance. $1M is a little over $20 per student in the district. 

Many people remember the bullying lawsuit that was filed in 2000 when a middle school student hung himself at home in 1998. ASD was forced to settle that case for $4.5M because the decision at that point gets made by the insurer. The insurer knew what the Tufts Medical Center attorney knew. A sympathetic plaintiff means a large judgment whether there is fault or not.  

Life is a tricky place and sometimes children get hurt. Sometimes kids do not think before they run. Sometimes kids do not get that the idiot making fun of them at school will likely end up selling shoes some day like Al Bundy. Sometimes stuff just happens. ASD should not be held responsible every time a kid gets hurt being a kid. And the taxpayers should not be paying for it either.

Imagine if every time someone slid on an icy road and crashed into something they sued the Municipality of Anchorage. Or what if they sued because debris was not removed from a road. Or a pothole was not filled. There are protections for the municipality and for good reason.

ASD is always putting out warning and instructions to parents. How can you predict the behavior of 49,000 students and everything that may happen to them?  It is a losing battle because no matter what happens there is money in their pockets. It is money that lawyers know they can target. No amount of preparation can prevent it.

There are far more costs to a legal system out of control. You only have to look around to see all of the ads in every media of plaintiff's attorneys begging for clients. Corporations have armies of lawyers and risk managers to fight back. They often just settle cases in the hopes it lowers the expense. And lawyers gleefully walk away with their booty.

Some physicians argue that malpractice insurance simply makes an easy target for lawyers. Insurance companies will settle a lot of cases that physicians might want to fight. It appears that ASD often finds themselves in the same position although a $1M deductible puts some sanity in the process. It presents the ugly truth that civil lawsuits are often more about money than justice.

I have many friends that defend the tort system. They insist that everybody deserves the right to stand up against the evil that is Corporate America. I have seen a lot of comments claiming ASD applauding the Rogers Park decision. I get that there has to be a system for people that have been truly wronged. But is that really what the system is doing? 

The problem is sometimes bad things happen and nobody is at fault. What is ASD supposed to do? Are they supposed to put padding up on every surface? Are they supposed to do an in-depth psychological profile on every student? Are they supposed to take responsibility for being parents as well as a school district?  

How many teachers does $1M buy.  How about $8M because that is how much the district has paid out since 2000 on 575 filed lawsuits. And how much of the other money spent on the entire legal circus beyond the payouts would be better spent in the classroom.

ASD and people generally on the left side of the political spectrum have been crying about lack of funding. We are treated to constant complaints of how many teachers will have to be let go. Some of those same people are benefactors of the political clout of trial lawyers. Well, here is an opportunity to save a few teachers. The problem is the politics do not work just as was the case with Obamacare. Every once in a while people should listen to Howard Dean.










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Howard Dean
Tufts Medical Center
Brian F. Sweeney, Jr.
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