By Greg David March 2, 2011

The medical malpractice wars are back, and as usual the trial lawyers are getting an assist from a widely quoted group supposedly looking out for the interests of consumers. “Supposedly” is the key word here.
Last week, Gov. Andrew Cuomo’s Medicaid Redesign Team agreed on some long-sought changes in malpractice laws in the state–especially capping pain and suffering awards at $250,000. Let’s be clear: Patients will be compensated for the costs of their injuries and lost wages. There just won’t be any bonanzas from the litigation lottery for them or their contingency-fee lawyers. Let’s also be clear on this: There is no evidence that malpractice awards lead to better medical care. In fact, they lead to worse care by forcing doctors into defensive medicine that drives up health care spending enormously.
Obviously, trial lawyers who have frustrated all previous attempts at malpractice law reform weren’t happy and are organizing to block the changes in the law. Neither was the New York Public Interest Research Group, the group endlessly quoted by the media as a consumer advocate. It quickly criticized the plan too. That’s usually where the story stops. This time, the governor’s press aide lashed back with a piece in Newsday calling them tools of the trial lawyers. Not us, replied NYPIRG Executive Blair Horner.
Who is right? The governor, hands down.

The ties between the lawyers and NYPIRG go back decades. Just keep reading because below is a 1993 Crain’s New York Business story that spells all this out in detail, including the role Mr. Horner himself has played in the past.
NYPIRG has benefitted from years from media attention without any scrutiny of its practices. Maybe this controversy will enlighten them.
Here’s the Crain’s story.

Odd allies socking businesses, city; NYPIRG gives lawyers credibility BY DOUGLAS FEIDEN
The New York Trial Lawyers Association recently discovered a gold mine in the city’s vast real estate holdings — lead-paint liability.
A jury awarded $ 2 million to the family of an infant who ate poisoned paint chips in a run-down, city-owned apartment building. Now, the negligence bar is hungry to mass produce such cases, for no plaintiff evokes more sympathy than the victimized child.
The trial lawyers got a helping hand in that effort last month from a most improbable ally, the New York Public Interest Research Group. NYPIRG published a 54-page handbook on lead poisoning, gracing it with a cover photo of five adorable — and vulnerable — children.
Get the Lead Out includes a brief section exploring a landlord’s liability for lead-based hazards and injuries in lawsuits brought by tenants.
A valuable, well-intentioned NYPIRG study will make it easier for NYTLA to come to trial, as good causes are magically transformed into great cases.
Consumer-oriented NYPIRG and fee-oriented NYTLA make peculiar bedfellows. The advocacy group is hailed as a crusading David shooting down big-business Goliaths, while the plaintiff’s bar is derided for ambulance chasing in public opinion polls. But their agendas are often mirror images. Both oppose tort reform and caps on vicarious liability, product liability and medical liability. Each is lobbying to kill no-fault compensation for neurologically-impaired newborns. Each has amassed the power to bottle up bills in the Democrat-dominated state Assembly.
Together, they sock New York business and government with a one-two punch, stirring up a sue-happy citizenry, fueling the worst liability explosion in the nation and slashing deep holes in city and state budgets.
Forged over common goals, the little-known alliance between NYPIRG and NYTLA raises troubling questions about a breed of consumer activists that may be less for consumers and more for lawyers.
”The trial lawyers are highly leveraged, part-owners of grievances that have not yet been ruled on,” says Walter K. Olson, senior fellow at the Manhattan Institute and author of The Litigation Explosion. ”The PIRGs give them the stamp of disinterested public spirit and fan the flames that make their claims work.”
In turn, Mr. Olson says, the trial lawyers nationally play an avuncular role in feeding a ready-made agenda to the consumer advocates.
Both NYPIRG and NYTLA vehemently deny any such good cop-bad cop collusion.
The two groups acknowledge extensive information sharing, but say they very rarely chart joint tactics or strategy. Much of NYPIRG’s $ 3.6 million budget comes from mandatory student activity fees at State University of New York campuses. The trial lawyers don’t give it a penny.
”We have nothing to do with the formulation of their views, and they have nothing to do with the formulation of ours,” says NYPIRG Executive Director Jay R. Halfon.
Adds Bert Bauman, past president of NYTLA, ”We’re proud to work with them, frankly, because they represent consumers and so do we, but they’ve never been 100% co-terminus with the plaintiff’s bar.”
Yet their shared zeal for the rights of injured consumers to sue and collect often comes at the expense of society as a whole. Liability settlements and judgments against New York City cost taxpayers a budget-busting $ 231.5 million last year. The city now spends more on such payments than on parks and libraries.
Despite avowals that their agendas are independent, the bonds and the bloodlines between the two groups run very deep.
Donald K. Ross was a Ralph Nader protege when he came to New York in 1973 as the first executive director of NYPIRG, a post he held for 10 years. His top lieutenant was Arthur N. Malkin, who signed on as legislative director in 1979.

They formed lobbying firm
In 1984, both men left NYPIRG to found Malkin & Ross, the Albany-based, lawyer-lobbying firm. Two years later, the firm snared its biggest lobbying client, the trial lawyers association. In 1992, Malkin & Ross raked in more than $ 550,000 in lobbying fees, including $ 129,000 from NYTLA. Business lobbyists who’ve tangled with the firm say it’s worth every penny.
They cite last year’s battle over attempts to reform the state’s vicarious liability law, which makes car rental companies liable for enormous damages in accidents caused by their renters. That law sent car rental rates in the city skyrocketing toward $ 100 a day, but when Avis Inc. and Hertz Corp. campaigned for liability limits, NYPIRG and NYTLA joined forces to kill the legislation.
They held a joint press conference in Albany, while Malkin & Ross and another lobbyist were able to bottle up the bill in the Democratic Assembly’s Insurance Committee, even as the Republicans were preparing to pass the measure in the Senate.
”We killed that bill, and I’m very proud of it,” says NYTLA’s Mr. Bauman, lead partner at Bauman & Kunkis.
”This isn’t Joe Blow lending his car to Sam Schwartz, this is how Avis and Hertz make their megamillions,” he adds.
The rental companies say their liability burden is so onerous they can barely make any money in New York. In the past four years, 130 rental agencies have closed statewide, a 30% shrinkage, as independents flee the market and rates soar.
Blair Horner, NYPIRG’s legislative director, acknowledges he sometimes shares foxholes with the trial lawyers on product liability and medical malpractice issues. But he says just as often he’ll join forces with the New York Medical Society, the Parent- Teachers Associations, or the League of Women Voters.

Another issue that unites the two groups is opposition to Gov. Cuomo’s proposed no-fault compensation plan for newborn, neurologically-impaired infants. This would replace malpractice litigation with administrative compensation, giving smaller awards from a $ 90 million pool to a greater number of children.
But so-called ”bad baby” cases are the bread-and-butter of the trial lawyers. NYPIRG, too, opposes that step, arguing that state regulation of errant physicians is inadequate and only lawsuits can police bad medicine.
To kill such measures, incendiary language — and deft media manipulation — is often used. In 1990, Richard Schrader, then executive director of the Alliance for Consumer Rights, the public affairs arm of the trial lawyers, told The New York Times the Cuomo plan was ”a license to kill and maim helpless patients.”
Today, Mr. Schrader is the acting commissioner of the city’s Department of Consumer Affairs, the replacement for Mark Green, himself an unreconstructed former Naderite.
This back-and-forth between the worlds of crusading consumerists and trial lawyers disturbs critics.
”It happens all the time,” says Sen. Dale M. Volker, R-Erie County, chairman of the powerful Senate Codes Committee. ”Former NYPIRG attorneys learn the business of suing people. Then, they go off and become trial lawyers and make a ton of money.”
Mr. Volker, sponsor of a comprehensive product liability reform bill that would drastically curb joint and several liability, has clashed with both groups, which oppose the measure.
He says the trial lawyers realize they have some difficulties with the public and the press. But they’re also savvy enough to know they can get directly to the media through NYPIRG.
While NYPIRG builds its coalitions, NYTLA doles out its cash, the key tactical difference between the two allies.
NYTLA’s political action committee — LAWPAC of New York — shelled out more than $ 335,000 last year, including checks to more than half of the 211 state legislators.
But while good-government NYPIRG has been very tough on PAC spending generally, it’s been relatively restrained on the issue of LAWPAC’s largesse, although the group will be cited later this month as one of Albany’s ”top 10 fat cats” in a NYPIRG pamphlet on influence-peddling.
”Prospective victims have no other voice than the plaintiff’s bar when Aunt Fannie falls and fractures her hip, or the family breadwinner tumbles from the scaffolding,” says Mr. Bauman.
Not exactly. They have the New York Public Interest Research Group, too.