Monday, July 27, 2009

Ironic Twist of Fate--Tort Reform Champion loses his own Medical Malpractice case

Elliott M. Kaplan is a prominent Kansas City attorney. For years, he railed against judges, juries, and trial attorneys, as he and his former firm, Daniels & Kaplan, got big bucks to represent big companies. He was well known as one of the founders of the modern tort reform movement in America. He was named "Legal Reform Champion" by the American Tort Reform Association.

In a cruel twist of fate, it appears he may have reaped what he sowed.

According to its website, The American Tort Reform Association was founded in 1986 by the American Council of Engineering Companies and shortly thereafter, the American Medical Association followed them. They have worked to enact tort reform legislation in 45 states. They have led grassroots efforts which have resulted (they claim) in 85% of Americans believing that frivolous lawsuits clog our courts.

Their efforts have paid off, perhaps to the detriment of one of their own. According to the National Practitioner Data Bank, the number of U.S. malpractice payments in 2008 was the lowest since creation of the federal National Practitioner Data Bank, which has tracked payments since 1990.


Lawyer Kaplan was diagnosed in 2003 with pancreatic cancer by his doctor in Kansas City. Kaplan sought the best care money could buy. He went to the Mayo Clinic in Rochester, MN. There he was again diagnosed with pancreatic cancer.

To save his life, he underwent a Whipple resection, a highly invasive surgery that can cause more harm than good. It was only after the surgery that the diagnosis was determined to be wrong, that he only suffered from pancreatitis, and that the Whipple resection made the condition worse, leaving him debilitated and a broken man.

Believing that the doctor had committed malpractice, Kaplan sued the pathologist alleging negligence in the diagnosis.

He assembled what appears to be an army of attorneys to represent him; his former law partner, James F.B. Daniels of McDowell Rice Smith & Buchanan, Thomas Ward of Ward & Ward, Mark Johnson of Greene Espel & Robert A. Stein (former Dean of Minnesota School of Law).

Unfortunately, the jury found against Kaplan and awarded him no damages. He has moved for a new trial. The motion is currently pending.

I certainly feel for Lawyer Kaplan. Unfortunately, he and the organization which he was a "Champion", foster the belief that all lawsuits are frivolous and that they compromise access to affordable health care, punish consumers by raising the cost of goods and services, chill innovation, and undermine the notion of personal responsibility.

I don't know if his lawsuit was meritorious or not. If it is, then I pray that justice will prevail. I do know that his organization, the American Tort Reform Association, has perpetuated the belief among many Americans that all lawsuits are frivolous. The beneficiaries of this belief are not injured or defrauded people, but the insurance companies and large corporations who fund these organizations.

One only need read jury verdict reporters to see that juries daily turn away victims just like attorney Kaplan.

Correction: Yesterdays initial post had information referring to Elliott S. Kaplan, one of the founders of the law firm of Robbins Kaplan Miller & Ciresi. The source of this information was the Alabama Jury Verdict Reporter and was assumed to be correct. We have notified the Jury Verdict Reporter of this potential error.

Elliot M. Kaplan Biography:

Chris Hellums can be reached at