You Don't Know Dick

He's for tort reform but takes trial lawyers' money and sues docs

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Richard Byrd is a lawyer and a politician. To his Republican friends and Kirkwood constituents, he's known as Representative Byrd. To his trial lawyer colleagues, he's just Dick.

As a state lawmaker, Representative Byrd has taken money from trial lawyers at the same time he's sponsored legislation to help doctors fend off medical-malpractice lawsuits. As a lawyer, Dick has sued doctors and hospitals for medical malpractice and wangled big-money awards.

So who is the real Richard Byrd?

The Richard Byrd who represents the 94th District in the Missouri House of Representatives received campaign contributions from the Missouri Association of Trial Attorneys, a group that represents lawyers who file personal-injury lawsuits. Each of MATA's four political-action committees last year gave Byrd $300, the maximum allowed under state law.

After taking the trial lawyers' $1,200 and winning his race, Byrd got down to the business of sponsoring a bill that MATA hates. On January 23, Byrd introduced legislation that would reform personal-injury and medical-malpractice lawsuits -- known as torts in the legal world. MATA is one of the most outspoken critics of the bill, which was referred to the House Judiciary Committee, which is chaired by Byrd.

The House bill, which now has 86 sponsors, would make it harder for lawyers to bring a case in St. Louis Circuit Court, which business groups and others describe as a plaintiff-friendly venue, supposedly packed with generous juries and judges.

There's more.

Byrd wants to make it harder for injured victims to get punitive damages from hospitals and doctors. Someone hurt by medical malpractice would have to show "clear and convincing evidence" that a doctor acted in a manner that was "willful, wanton and malicious" before he or she could get punitive damages. If a doctor amputated the wrong leg but didn't mean to, there'd be no punitive damages -- if Byrd's bill becomes law.

Byrd and other co-sponsors also want to end the legal doctrine of "joint and several liability" in medical-malpractice cases. As the law stands, if a patient is injured by two different hospitals and one doctor, just one can be on the hook for the entire damage award. The thinking is that an innocent injured patient shouldn't be penalized just because one of the defendants can't pay. But Byrd's bill provides that each defendant is responsible only for its portion of the liability. For example, if a jury determines that one hospital bears 50 percent of the responsibility for a claim and another hospital bears 50 percent, a successful plaintiff could only recover half of the judgment if one of the parties is broke.

There's still more.

Byrd is squarely behind limiting contingent legal fees. Under his proposal, a lawyer would only get one-third of the first $500,000, 28 percent of the next $500,000 and 15 percent of anything over $1 million.

The tort-reform bill has legs, and Republicans, who control the Legislature, are pushing it hard. It's garnered support from groups such as the National Federation of Independent Business, a small-business advocacy group that's applauded Byrd and state Senator Delbert Scott (R-28th District) for taking the lead on tort reform in Missouri. Insurance companies also are on board, waging a blame-the-lawyer campaign for their ailing balance sheets and rising insurance premiums.

But the legislation's most potent support is coming from the medical community, which is being squeezed by rising malpractice-insurance premiums. On January 29, when doctors rallied in Jefferson City to support tort-reform legislation, Byrd was there, lending his support. "This is war!" he thundered.

And on February 6, Byrd blasted Governor Bob Holden's medical-malpractice plan. In a press release, Byrd blamed trial lawyers "and their ceaseless advertising" for causing "100 to 300 percent increases" in malpractice-insurance premiums.

He didn't mention the contributions he received from MATA.

And he certainly didn't say anything about Debra Renee Pankins.

Pankins was two months pregnant with twins on January 3, 1996, when she went to visit Dr. Blake Lambourne at a clinic run by St. Louis University, according to a wrongful-death lawsuit filed in St. Louis Circuit Court by none other than tort-reform champion Richard Byrd.

According to the lawsuit, in an attempt to combat Pankins' high blood pressure, Lambourne prescribed the drug methyldopa. Although court records allege that the drug is "known to cause liver and kidney disorders, hemolytic anemia and death," Pankins wasn't monitored or tested for liver damage, even after she began complaining of severe headaches, lethargy, vomiting and a rash so bad that she had lesions inside her ears.

Pankins complained to Lambourne and went to St. Louis University's clinic and St. Mary's Medical Center for help, but she was discharged without being tested for liver failure or being told to stop taking the drug. On April 1, 1996, Pankins was admitted to St. Louis University Hospital with methyldopa-induced liver failure. She underwent a liver transplant on April 5. Five days later, the twins were dead. On April 17, Pankins died.

Pankins was survived by two minor children, her husband, her mother and the father of the unborn twins. They joined to sue Lambourne, St. Louis University Hospital and St. Mary's Hospital Medical Center. (Zenith Goldline Pharmaceuticals, the company that manufactured the methyldopa, was later named as a defendant, but a judge dismissed the company from the case because it was added after the time limit.)

In the lawsuit, Byrd accused the doctor and two hospitals of negligence and said that St. Louis University Hospital, Lambourne's employer, "negligently failed to supervise defendant Lambourne and allowed defendant Lambourne to treat patients, including Debra Renee Pankins who he was not qualified to treat." The suit also said St. Mary's Medical Center "negligently failed to exercise ordinary care."

Byrd asked the court to award actual damages against each defendant "in excess of $25,000" and money "for the pain and suffering sustained by the deceased." He didn't ask the court to make each defendant pay only for its share of the harm, as his legislation prescribes. Asked why not, Byrd says, "I have, as an attorney, a responsibility to use whatever laws are available at the time to the best advantage of my client."

On December 6, just weeks before his tort-reform legislation was filed, Byrd settled the case with St. Louis University Hospital, which agreed to pay damages that would cover the hospital and Lambourne, and with St. Mary's Medical Center. The defendants denied his medical-malpractice claims throughout the lawsuit and continued to deny his allegations when the case was settled.

The terms of the settlement were confidential, and the parties agreed that they "would not publicize the fact or amount of said settlement to the general public ... or to the media." The court also sealed Byrd's contract with his clients, making it difficult to determine how much he was paid.

A wrongful-death case involving a 31-year-old mother and twin babies, filed in the city, would, conservatively, have a possible verdict value of at least $1 million -- just the type of case that, under Byrd's tort-reform bill, should have had a tiered-attorney-fee contract. Asked whether his contract with the family was tiered, Byrd declines to answer: "I cannot divulge my contract."

Public records in the city probate court indicate that one of Pankins' children received $66,203.25, the amount of the settlement after lawsuit costs and attorney fees were deducted. If Byrd took the customary one-third, the child originally settled for about $100,000 and Byrd got about $33,000 of that. That doesn't include the settlement reached with the remaining four plaintiffs.

One Byrd critic questions how the lawyer could handle a case such as Pankins' but emerge as a leading tort-reform proponent and champion of doctors.

"It's inconsistent for a lawyer to engage in lawyer-bashing," says Spencer Farris, a trial lawyer and member of MATA's board of governors. "It's inconsistent for a lawyer to take injury victims' cases and not to disclose to them that he's going to be doing everything he can in the Legislature to stick it to injury victims."

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