THE NEW YORK TIMES: December 29, 2009 Advertising
An Underground Campaign
By ELIZABETH OLSON
WASHINGTON LAWMAKERS debating health care reform in recent weeks haven’t been reticent about blaming trial lawyers for driving up the nation’s medical costs by pursuing large malpractice awards.
Trying to fend off any limits to patient lawsuits, the lawyers decided to press their arguments in a new location — the subway system here. Lawmakers and their aides arriving on Capitol Hill by Metro, as the subway is known, pass through a blizzard of brightly colored ads on the platform and the walls and hanging from the ceiling.
They bear the lawyers’ message that nearly 100,000 people die each year from medical errors, and that tort reform won’t fix the health care system.
“We wanted a prominent space to educate key people about the number of people who are killed annually by medical errors,” said Anthony Tarricone, president of the American Association for Justice, formerly known as the Association of Trial Lawyers of America.
The lawyers, who introduced their subway campaign this month, anticipated that they would be a target for senators looking to control health care costs, said Mr. Tarricone, a Boston plaintiffs’ lawyer. During the debate, several senators introduced amendments, including one called “loser pays” — meaning the person who loses the lawsuit must pay all the legal costs — to clamp down on medical liability lawsuits. None was adopted.
•
The trial lawyers argue in the ads that patients need legal recourse because preventable medical errors are the sixth-leading cause of death in America , killing at least 98,000 people a year. (The ads’ tag line is: “Tell Congress to Put Patients First. There Are 98,000 Reasons Why You Should.”) The campaign Web site, 98000reasons.org, calls that number equivalent to two 737s crashing every day for a year — and the ads include two small images of planes.
The figure comes from a 1999 report called “To Err Is Human,” from the federal Institute of Medicine, part of the National Academy of Sciences. This is the most recent nationwide figure, said Mr. Tarricone, who added that the number of deaths and injuries could be higher because the “problem has only gotten worse.”
Business groups, including the Chamber of Commerce, say litigation creates cost beyond settlements and awards and the malpractice insurance to cover them. They say it also encourages doctors to practice “defensive medicine” — practices like ordering more tests than needed in order to avoid being called negligent. But the lawsuits are the flashpoint.
“The threat of these ‘jackpot justice’ suits against doctors is one of the reasons health insurance premiums are rising faster than the rate of inflation,” said Senator Jon Kyl, Republican of Arizona.
Senators introduced a number of amendments in recent weeks to limit awards in medical malpractice lawsuits and lawyers’ fees — typically about one-third of a jury award — and to restrict patients’ ability to bring lawsuits against hospitals and other health care providers. None has passed, but plaintiffs’ lawyers say they are very much in Congress’s crosshairs.
“A lot of folks have been asked to sacrifice under this legislation,” Mr. Kyl said on the floor of the Senate. “The one constituency that hasn’t been asked to sacrifice anything is the trial lawyers.”
And it’s not just Congress: Trial lawyers were alarmed in September when the White House said it would support state-run programs to test alternatives to litigation in malpractice claims.
The lawyers’ ads started in print, on the radio and online in September. Advertising began this month at Union Station, a transit hub on Capitol Hill near the Senate buildings, to coincide with the Senate’s debate.
The bright blue ads in the subway feature yellow sans-serif type urging Congress “to put patients first.” Large banners at the Union Station Metro station tell the stories of two plaintiffs, including Blake Fought, 19, of Blacksburg , Va. , who died when an intravenous tube was removed incorrectly.
Their stories and six other cases are included on the “98,000 reasons” Web site. The campaign also includes print ads once a week in the newspapers covering Congress, including Politico, The Hill and Roll Call. In addition, the group advertises online with The Huffington Post, The Washington Post and Politico, among other sites, and sponsors a public radio station’s Capitol news roundup during morning drive time.
But the subway blitz is drawing the most notice. Blackbarn Media, a Web development and design firm in Alexandria , Va. , created the campaign. Sarah Fox, the creative director, said she used “vibrant, almost shocking colors” to emphasize “the effects of medical mistakes on real people. And we chose clean typography to focus on the staggering number of deaths.”
The American Association for Justice solicited its members to support its campaign, which included buying a monthlong “station saturation” package that CBS Outdoor sells for the Washington Metropolitan Area Transit Authority.
•
Union Station has 33 positions, including billboardlike posters, canvas banners and freestanding backlit displays — along with vinyl applications on floors and pillars. “Our most popular stations are Union Station and Capitol South, on the other side of the Capitol, as well as the Pentagon station, which is a favorite of defense contractors,” said Ron Rydstrom, the transit authority’s marketing director.
Trial lawyers are not the only advocacy group to try to influence decision makers this way. The National Association of Broadcasters, the Cancer Action Network and the Pew Charitable Trust have also bought Metro ad space, he said. The cost varies. The trial lawyers paid about $100,000 for the month.
“We’re easy to demonize,” Mr. Tarricone said, “but the price was well worth it to make sure the rights of patients aren’t bargaining chips in this process.”