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Part VI: I want to make ten tort reform minded people filthy rich. Are you one of them?

By Steve Lombardi

Today I want to accomplish one of two things:

1. Either make all the tort reformers filthy rich; rich beyond their wildest dreams; or

2. Demonstrate a false impression the tort reformers are creating.

Tort reformers want you to believe that doctors are ordering unnecessary medical tests for sick or injured patients just to avoid being sued. There are a lot of people that by now have the impression this is true and that it is a common practice. Most people believe we spend hundreds of millions of dollars ever year on unnecessary tests. Most people believe that it's so common that lawyers are getting rich and doctors are sick of seeing it happen.

We assume lawyers are greedy and doctors are good and it's something about the law suit system that allows this to go on. Right? Now don't forget the greedy trial lawyers. Promise you won't forget the greedy trial lawyers.

So let's test that premise you believe exists.

If you can prove it we can both get filthy rich. I mean it. First let's identify who likely has the evidence we will need to prove our case. First we need to identify the patients and doctors involved along with the unnecessary test and the date the tests were performed. Then we'll sit around and add up the hundreds of millions of dollars in reimbursement charges and then we'll figure out how rich we are going to be. You with me so far? Good.

WHO MUST HAVE THE INCRIMINATING EVIDENCE?

1. I figure that tort reformers have a filing cabinet full of evidence that has names and all the contact information we need. They've been in existence long enough to have been contacted and provided with the evidence to prove the premise is true.

2. If they don't then doctors know who amongst themselves are ordering unnecessary medical tests and knowing I will make them filthy rich; so rich they can immediately retire, that they too will step forward.

3. Then again we all know a lot of people and most laypersons can identify at least one person in their community that is involved with having had an unnecessary medical test performed. So we have three groups who certainly have some of the evidence we will need to join Wall Streets filthy rich club. But let's not stop there because I know there has to be one more organization with filing cabinets full of examples of unnecessary tests.

4. Blue Cross Blue Shield and all other health insurance companies regularly review claims and the claims people should also be able to name those involved with filing and seeking to receive payment for unnecessary medical tests. The claim adjusters must have filing cabinets full of the evidence we will need to prove the assertion that doctors are ordering unnecessary medical tests for the sick and injured.

THE LAW

The law doesn't allow anyone to file false claims. To do so is the crime of fraud and theft. If doctors are filing false insurance claim forms it would be evidence of criminal activity. For a hospital to systematically have employees do the same would be evidence of a criminal enterprise. It's a violation of the BCBS contract agreements for doctors or hospitals to file false claims for reimbursement. In point of fact BCBS is pretty sophisticated at knowing what medical care is reasonable and necessary and I'm certain if the premise is as true as the tort reformers claim it is then they too will have filing cabinets full of the evidence we need.

THE WAY WE ARE GOING TO GET RICH; FILTHY RICH

You have to remember that as one of those trial lawyers that tort reformers claim is greedy I too want to be filthy rich. So you can help me get filthy rich just by proving the tort reform premise described herein. Since I brought it to your attention you have to include me. Right? I can't wait! I'll be able to retire early! This is too good to be true!!! Barbara pack our bags we are heading to the Outer Banks and shortly will be able to buy entire towns where we can pick and choose our neighbors. I can't wait.

Okay, sorry I was pretty excited and forgot to tell you how we will get rich. Here's how. In those filing cabinets of evidence you're sending to me, we will find false claims for unnecessary tests being performed by the elderly and poor who are on Medicare and Medicaid. I will contact the U.S. Government and turn in those doctors and hospital systems that are turning in claims for totally unnecessary tests and getting government reimbursement. That is so illegal I can't tell you how quick they will settle. And when they do you and I will be rewarded with a huge chunk of money by a law that has been on the books as far back as the Civil War. It's called a qui tam action and it was put in place to get citizens to help the government figure out who is defrauding them. When they settle with the wrongdoers' we get to keep a large portion of the money received. Get it?

In common law, a writ of qui tam is a writ whereby a private individual who assists a prosecution can receive all or part of any penalty imposed. Its name is an abbreviation of the Latin phrase qui tam pro domino rege quam pro se ipso in hac parte sequitur, meaning "[he] who sues in this matter for the king as [well as] for himself."

The False Claims Act provides incentive to relators by granting them between 15% and 25% of any award or settlement amount. In addition, the statute provides an award of the relator's attorney's fees, making qui tam actions a popular topic for the plaintiff's bar. An individual bringing suit pro se, that is, without the representation of a lawyer, may not bring a qui tam action under the False Claims Act. See, for example, United States ex Rel. Lu v. Ou, 368 F.3d 773 (7th Cir. 2004).

Did you read that percentage amount? We get to keep 15 to 25% just for turning them in! We don't even have to spend any money on this investment; just a phone call! Isn't America great!

Okay, so my guess is you'll send in at least $100 Million worth of phony test claims. That means we will share a cool ... it's so much money I can't even multiply. You do it. What are you going to do with your money? I'm heading to the Outer Banks with mine! I'm going to buy Kitty Hawk and that striped lighthouse; then kick everyone else out for good. I think they call it Cape Hatteras Lighthouse. No matter, Barbara and I are going to rename it for my mother. DollyHouse!

http://www.youtube.com/watch?v=BAjp8BAzJXo

ARE YOU HAVING DOUBTS?

Wait you're not having doubts are you? Remember how convinced you were of the initial premise? What happened? Why are you now a doubting Thomas?

Damn you're right we forgot about the greedy trial lawyers. If they are so greedy why haven't they done this already? Don't any of them know the law? Haven't they heard about false claims? Man this isn't looking good. Are you telling me I'm back to swimming in a crappy pool for two stupid months in stinking crappy Iowa weather? Barbara unpack the bags!

WHAT IF THE TORT REFORMER'S PREMISE IS FALSE? THEN WHAT IS REALLY GOING ON HERE?

Tort reformers use a well-known method the Nazi's used to convince people the Jews were the root of Germany's social problems. Like the Nazi's what the tort reformers don't want you to do is think too much. The way they get you not thinking is to set a premise, then surround it with only part of the relevant facts and afterwards to repeat it so many times that a false impression is both created and firmly fixed in your memory. If you voice any opposition or doubts you're grouped into a hated social order and the finger gets pointed in your direction. By the time you've heard or seen the ad for the tenth time you believe it's true. You believe this even though you can't name a single person or situation that fits into the tort reformer's claimed premise.

How do they do it to us?

Watch this short ten minute clip and you'll see how and why ad agencies were created and upon what the ads they create are based.

How corporate took what was formerly known as propaganda and transformed it into today's more acceptable term, 'public relations'.

http://www.youtube.com/watch?v=JrOz-inIG30

That is what the law and litigation is all about. We don't get to state conclusions in court, we have to present evidence that allows the fact finder to draw their own conclusions. And that's where the tort reform movement fails; if you think you will see there are not specific instances of unnecessary testing being presented. There are no names of hospital systems or doctors who have engaged in ordering and getting reimbursed for unnecessary tests. There is only the conclusion.

Allow me to ask one more question that comes from those same ad agencies.

'Where's the Beef?'

http://www.youtube.com/watch?v=aISkVvi5iI8

http://www.youtube.com/watch?v=EOyQfd7OqIY

Oh well at least you and I got to see the Outer Banks; even it was only on YouTube!

Originally posted at InjuryBoard by Steve Lombardi

Full post as published by Des Moines Personal Injury Lawyer on June 24, 2009 (boomark / email).