Tort Reform or Defunding Dems?

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WASHINGTON (UPI) — Fresh from his success with Medicare reform and prescription drugs, Senate Majority Leader Bill Frist, R-Tenn., a surgeon by training, steps back into the operating room of the Senate floor this week to force a vote on cutting medical malpractice costs.

Dubbed the “Patients Rights Act of 2003” by the Republicans, S. 11 severely restricts the amount juries across America could award to people for their pain and suffering from a doctor’s mistake. It would cap “non-economic damages” at $250,000 in a case where the physician was found negligent, removing from the jury the right to award more damages on its judgment of how extensive the injury affected the life of the victim.


Frist brought the bill up last Monday as many in Congress were leaving for the July Fourth recess, presenting the details at the last minute and moving it to the floor without committee hearings or a vote.

Both sides agree that Frist does not have the 60 votes in the Senate for passage this week. One Capitol Hill GOP staff member said part of Frist’s plan is to force opponents to step forward and vote, opening them to lobbying pressure from their districts in the hopes of getting a better medical malpractice bill later in the year. The House of Representatives passed a cap earlier this year.

But in this hot July, 16 months before the presidential election, President Bush, the Republican Party, and big business are making their greatest assault in decades on the nation’s trial lawyers and the ability of plaintiffs to win big settlements in civil cases. The medical malpractice bill is only one of those efforts.

In April, Sen. John Kyl, R-Ariz., proposed a bill that would have deflected money due trial lawyers from the tobacco settlement to the states. Kyl said the measure would have transferred $9 billion to the states (including $167 million to Arizona). The bill, which was defeated, would have allowed up to 500 percent over standard hourly rates, but ended the windfalls that many private firms will receive. The tobacco settlement set aside $500 million a year from cigarette taxes to pay private lawyers in the case, a $12.3 billion pot.

Meanwhile, the U.S. Chamber of Commerce has been funding political groups in several states to defeat elected state court judges that have allowed major jury awards in damage cases. It has targeted unfavorable judges or supported favorable ones in Illinois, Michigan, Ohio, Pennsylvania, Texas, Louisiana, Mississippi and Alabama.

Wall Street, too, warns that unrestricted settlements against the underwriters of investments, including J.P. Morgan, Credit Suisse First Boston, Morgan Stanley and Smith Barney, could freeze business investment and block recovery. Recently brokers in cases growing out of the dot-com collapse agreed to a $1 billion settlement with investors in initial public offerings that had not done well. The settlement would open the way for suits against underwriters.

Food industry lobbyists warn that nutritionists could end up filing cases against manufacturers of fatty foods, which would result in billions of dollars of settlement costs for the food industry. Even though only one noteworthy suit has been filed and that suit was dismissed by a judge, Victor Schwartz, general counsel of the American Tort Reform Association, warns that the “precedents, the ammo, the missiles are already there and waiting in a silo marked ‘tobacco.'”

Meanwhile in a half a score of states, Republicans have pushed malpractice judgment caps and limitations on the use of expert witnesses in medical negligence cases since their criticism of how a patient was handled is often crucial to jury sympathy. Bush’s brother Jeb ordered a special legislative session this month in Florida to consider medical malpractice caps.

But many Democrats and trial lawyers in the country claim that the campaign is not serendipitous, nor because of large settlements, but is mounted because the GOP controls Congress and several statehouses and sees this is at a time it can serve its business constituents. The real objective is “defunding” the Democrats, they argue.

Mary E. Alexander, president of the 60,000-member American Trial Lawyers Association, the primary organization of lawyers in damage cases, told United Press International that she thinks the campaign is orchestrated from the White House. “I think it is all part of a political move to do this in the states as well as national. It’s all part of their overall plan.”

Jenny Backus, a consultant to Democratic congressional campaigns, claims the Bush White House has made tort and medical malpractice reform the major domestic effort this year to “run us (Democrats) ragged. If we are constantly on the defensive it keeps our eyes off Democratic objectives.”

Conservatives agree to the importance of the trial bar to the Democrats. Kevin Hattis, an economist with the American Enterprise Institute, said the two last important financial sources for the Democrats are the “trial lawyers and the labor unions.”

Backus believes the effort exposes Bush’s political operation as “callous and shallow, misusing government resources to attack political opponents.” She called it “Nixonian,” harkening to an era when President Richard Nixon was charged by a House of Representative investigation with abuse of power in attacks on Democrats. Backus also claims pushing a malpractice bill is a conflict of interest for Frist, whose family controls HCA, the nation’s largest for-profit hospital chain. The chain has a subsidiary, Health Indemnity, that is the fifth-largest medical malpractice insurer in the country.

Gretchen Schaefer, a spokeswoman for ATRA, claims that the campaign is just what it seems to be, to end what she calls “outrageous settlements,” which profit lawyers and not the victims. ATRA, a group formed to represent the doctors and others in the tort battle, conducts research on medical malpractice.

Bush opened the campaign on medical malpractice last fall in a speech at the University of Scranton. “There are too many lawsuits in America,” he told the audience, “and there are too many lawsuits filed against doctors and hospitals without merit.”

The lawsuits he said are “junk … they’re expensive to fight. It costs money to fight a lawsuit. And oftentimes, in order to avoid litigation, and oftentimes, to cut their costs, docs or the insurance companies that insure them just settle.”

The cost of these “frivolous” lawsuits has driven the insurance premiums so high, he said, that America was in a crisis because many doctors could not afford the premiums and were leaving their practices or moving to cheaper states. The lawsuits, he said, cause doctors to practice “defensive medicine,” ordering more tests and procedures than might be necessary and further driving up medical costs.

In several states, including Nevada, Pennsylvania and Florida, some physicians have abandoned their practices claiming that the insurance premiums are too high.

Bush made tort reform one of his basic political priorities 10 years ago in Texas under the tutelage of Karl Rove, his political guru and chief strategist. It had a lot to offer a young candidate starting his first campaign for high political office.

In Texas in 1993, Bush’s adopting “tort reform” got him major business financial backing and robbed his opponent, Texas Gov. Ann Richards, of support she might have received.

But the question of whether there is a “malpractice crisis” in the United States is controversial. Alexander said that when there is an economic downturn, insurance companies earnings go down and this in part drives up rates, but insurance blames high jury awards.

In Congress, Bush’s course has not been smooth sailing. Though the House passed a bill, a cap bill offered earlier this year in the Senate by Sen. Dianne Feinstein, D-Calif., which appeared to be a compromise that other Democrats might back, was pulled back when doctors in her home state opposed some of the provisions.

Even if Frist cannot get a favorable vote this week, the Democrats and the trial lawyers will have used a lot of energy and money defending their positions.

Copyright 2003 by United Press International. All rights reserved.