CONCURRENT SESSIONS

The Pros and Cons of Litigation in Public Health

Gihan Barsoum, Timothy D. Lytton, Jon Ernick, and Carol Isaacs (Moderator)

Gihan Barsoum This presentation concerns “Legal Mobilization for Mental Health: A Case Study in Public Health Advocacy.” It is a report on a study which looks at how and why mental health interest groups use litigation as part of their advocacy strategy, the role they assigned to litigation versus other tools, and the con- sequences of their use of litigation. By way of back- ground, there are three categories of litigation typi- cally found in mental health: litigation relating to the violation of rights, litigation clarifying eligibility requirements for various types of public programs, and litigation focusing on the interpretive clauses in private health insurance contracts which limit cover- age for mental health or psychiatric care and/or cov- erage for services for those with mental illness. This was a qualitative study that used a multiple case-study design. The cases involve four advocacy groups: the Bazelon Center for Mental Health Law, the National Alliance for the Mentally Ill, the National Mental Health Association, and the Mental Health Association of Southeastern Pennsylvania.

The study’s findings, in brief, were that the primary effects of using litigation were twofold. First, litigation was used to expand the advocacy group’s options. By employing the law, they were able to develop support- ive legal theory, file amicus briefs, exert political lever- age, and educate the public. Second, the extent to which the groups used these options varied according the group’s goals and available resources and whether they were a national or state advocacy group.

The secondary effects of using litigation were more significant and included enhanced power, leverage, credibility, and threat. These effects, in turn, rein-

forced the continued use of litigation. The use of liti- gation also had a spill-over effect by benefiting other mental health advocacy groups that did not litigate.

In more detail, the secondary effects of litigation highlighted and brought visibility to the problem, caused the issue to be recognized as a problem by policymakers, prompted creation of new laws and leg- islation, by-passed the bureaucracy and politics, gave leverage to state and local mental health officials, served as a catalyzing agent and rallying point for consumers and advocates, coalesced advocacy groups, and stimulated other types of advocacy. Litigation focused attention on the failings of the public mental health system and, in one case, embarrassed the state into implementing changes by holding governments and officials accountable. In addition, litigation often “drove” state decision-making, gave the advocacy groups “a seat at the table,” and captured media attention.

In none of the four cases was litigation used as the sole strategy. Instead, it enhanced lobbying, grassroots activity, and other strategies. The advocacy groups, in fact, perceived litigation alone as ineffective, serving more as the “teeth and the ”threat” that makes other advocacy efforts more effective.

It is very clear from this study that litigation con- tributed significantly as a rallying point to mobilize and organize mental health advocates. It also stimu- lated consciousness of rights among consumers and more broadly among the public and decision-makers. Litigation increased the groups’ access to policymak- ers and mental health officials and that goal was a consideration in selecting litigation as a tool on both the national and the state levels.

In summary, this study demonstrates, first, that mental health advocacy groups used litigation strate- gically as part of a comprehensive approach; second,

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that the decision to use litigation was influenced by the groups’ resources, political opportunities, and access to policymakers; and third, that the secondary effects were significant and encouraged continued use of litigation.

Timothy D. Lytton In the debate over the use of litigation to make public health policy, proponents and critics of the litigation disagree over the proper role of courts in policymak- ing. Proponents assert that courts have an essential role to play alongside legislatures and administrative agencies in making public policy. They point to the failure of legislatures and agencies to regulate prod- uct safety, tobacco, and guns more aggressively as justification for a policymaking role for courts. Critics insist that the job of courts is to resolve private disputes and to enforce legislative mandates, not to make public policy. Judges, they argue, make poor policymakers because they lack both the necessary tools and the democratic credentials of legislatures and agencies. Using the courts to make public policy will, in the end, critics suggest, politicize the judiciary, undermine the integrity of the litigation process, and erode public confidence in the courts.

In presenting their arguments about the proper role of courts in policymaking, the two sides rely on competing ideals of the proper role of courts drawn from constitutional law. Proponents of using liti- gation to make public health policy invoke the lead- ing role played by lawsuits in the civil rights revolu- tion. Critics, for their part, cite Article I of the U.S. Constitution which vests “[ all1 legislative powers” in Congress, and Article 111, which describes the role of courts as limited to resolving “cases” and “controver- sies.” The cultural resonance and rhetorical power of these two constitutional ideals-civil rights reform litigation and the founders’ vision of limited govern- ment-play a significant role in the debate over using litigation to make public policy.

The debate suffers from two notable shortcomings. First, reliance on constitutional ideals when analyz- ing the proper role of civil litigation in the policy- making process is misplaced. Neither of the ideals relied upon by each side accurately describes the tra- ditional policymaking role of courts in civil litigation, which is smaller than that suggested by the compari- son to civil rights litigation and greater than that sug- gested by citations to Articles I and 111. Second, the institutional arguments of both sides-concerning legislative and agency regulatory failure, politiciza-

Using Law For Community Health

tion of the judiciary, damage to the integrity of the lit- igation process, and erosion of public confidence in the courts-require further theoretical elaboration and better empirical support.

[For a fuller account of this argument, see Timothy D. Lytton, “Using Litigation to Make Public Health Policy: Theoretical and Empirical Challenges in Assessing Product Liability, Tobacco, and Gun Litigation,” Journal of Law, Medicine H Ethics, Vol. 32, No. 4 (2004).]

Jon Wrnick This presentation concerns litigation and injury pre- vention. Injury prevention goals share much in com- mon with the goals of other program areas in public health. Strategies for preventing injuries include: modifying or banning the product, activity, or envi- ronment causing the harm; or, changing the behavior or susceptibility of the persons at risk. These goals can be accomplished through legislation, regulation, and education, or through incentives for voluntary change. Finally, litigation can be used to promote injury prevention.

Discovery and publicity associated with litigation can serve to educate the public and policymakers about risks. The threat of litigation or pending litiga- tion-even if the case never goes to trial-creates incentives for manufacturers to make their products safer. Compensatory damages will also further this goal; punitive damages may be even more effective where a manufacturer’s conduct is especially egre- gious. For example, Grimshaw v. Ford involved a post-crash fire in a Ford Pinto. Ford Motor Company was ordered to pay a large punitive damages award, and shortly thereafter instituted a recall of the Pinto. The use of injunctive relief as an injury prevention tool is illustrated in another Ford case. In Howard v. Ford, vehicles were stalling, creating a substantial risk of injury. In addition to awarding damages, the judge ordered a recall of the affected vehicles. Rather than appeal, the case was eventually settled. Finally, tort litigation can promote injury prevention by serv- ing as the impetus for future legislation, as in the lit- igation involving the Ford Explorer and Firestone tires. Ultimately, Congress enacted the TREAD Act to address some of the issues raised during that litiga- tion.

There is limited research on the impact of litigation on corporate decision-making. A 1983 Rand study concluded that liability was the single greatest factor influencing product design. Other research has also

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CONCURRENT SESSIONS

verified the importance of litigation for at least some manufacturers. But more research is needed to better understand the overall societal impact of litigation.

Potential societal harms associated with litigation include the claim made by product manufacturers that litigation may deter innovation, and that the cost of damages and trials will be passed on to consumers, affecting U.S. competitiveness in the world market. Litigation may also divert resources away from other strategies or interventions public health practitioners might choose to employ. Public health practitioners

should carefully consider the costs and benefits of lit- igation.

Litigation can be a useful tool to promote public health goals but it is certainly not the only tool avail- able. The benefits of litigation may be especially important where regulation is absent or inadequate. Additional research regarding the effects of litigation is needed, but public health professionals are focused on saving lives and must often act in the absence of perfect data.

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