Tort Reform

Do The Math

Government Knows Best

Nice, Firm Breasts

Texas-style Tort Reform

Sorry About the Pain and Suffering

Sorry About Your Blind Kid


The Real Numbers

U. S. businesses file about four times as many lawsuits as do individuals, even though there are 40 times more individuals in America than businesses. Corporations file frivolous lawsuits 69 percent more often than individuals do. (here)

Progress Report

Bush chose Madison County, Ill., to stump for his tort reform proposal because, he said, "the county illustrated the problems of junk lawsuits."

NOT. 700 malpractice wrongful death suits were filed there between 1996 and 2003. But here's what the liar Bush doesn't say: since the system usually DOES work, most frivolous lawsuits are thrown out of court early in the process. Of those 700 lawsuits, for example, only 14 resulted in verdicts and only six of those favored the plaintiffs. Of those six, only one was actually large enough to be affected by the president's proposed $250,000 cap. (here)

The Almighty FDA Will Protect You

The Bush administration has been going to court to block lawsuits by consumers who say they have been injured by prescription drugs and medical devices.

The administration contends that consumers cannot recover damages for such injuries if the products have been approved by the Food and Drug Administration. In court papers, the Justice Department acknowledges that this position reflects a "change in governmental policy," and it has persuaded some judges to accept its arguments, most recently scoring a victory in the federal appeals court in Philadelphia.

Allowing consumers to sue manufacturers would "undermine public health" and interfere with federal regulation of drugs and devices, by encouraging "lay judges and juries to second-guess" experts at the F.D.A., the government said in siding with the maker of a heart pump sued by the widow of a Pennsylvania man. Moreover, it said, if such lawsuits succeed, some good products may be removed from the market, depriving patients of beneficial treatments. (here)

Nice & Firm

Prominent Columbia, S.C., surgeon Harry J. Metropol, appearing before a state legislative committee in April to argue that doctors shouldn't have to pay so much money in malpractice awards and insurance premiums, minimized the harm suffered by a woman who lost both breasts because of an error in cancer diagnosis. "She did not lose her life," Metropol said, sunnily, "and with plastic surgery, she'll have breast reconstruction better than she did before. It won't be National Geographic, hanging to her knees. It'll be nice, firm breasts." [Tampa Tribune-Knight Ridder, 4-18-03]

California passed a tort reform bill, limiting what one can recover in a lawsuit, in 1975 and waited expectantly for insurance premiums to go down. They nearly tripled in the next 12 years, finally leveling off in the early '90s. And, amazingly enough, California just happened to have passed strict insurance regulations in 1988. (here)

Limiting Lawsuits, the Texas Way

New York Times - President Bush and Congressional Republicans are poised to back changes in tort law, including proposals that would make it harder to win large jury awards for medical malpractice and force many class-action lawsuits out of plaintiff-friendly state courthouses and into federal courts. Other proposals would protect companies facing asbestos-related claims.

Trial lawyers — and the Democrats they often support — argue that lawsuits make products safer and that the Republicans want to allow corporations to evade responsibility when they hurt people.

But it is possible to get some idea of the impact of a new system by looking at Texas, which over the past dozen years has become something of a tort-reform laboratory.

In 1995, under Governor Bush, the Legislature passed a series of bills that made it harder to win big punitive-damage verdicts, narrowed the state's primary consumer protection law and limited what deep-pocketed defendants had to pay in multiparty lawsuits.

Immediately after all these measures were passed, payouts plunged for lawsuits, settlements and other claims covered by insurance companies. After 1995, for example, annual payouts by automobile liability insurers fell by more than $500 million, reversing an upward trend in the first half of the decade, according to data reported by insurance companies.

But premiums paid by consumers and businesses didn't drop nearly as fast as insurers' payouts did, and the profits of insurance companies soared. Before the workers' compensation system was changed, for example, insurers had been paying out all of their premium income, and then some, to cover losses. But by 1994, under the new system, insurers were paying out just 40 cents for every $1 collected in premiums. Similarly, after 1995, auto liability insurers went from paying more than 70 cents for every dollar of premium to about 54 cents.

Even state officials acknowledge that insurers have most likely kept some benefits. Moreover, insurers overcharged consumers $2.9 billion for auto insurance in the three years after the system was changed, argued D. J. Powers, a former general counsel of the Texas Department of Insurance who is president of the Center for Economic Justice, a consumer-advocacy group based in Austin.

The changes had another effect, other critics say. Trial lawyers and consumer advocates argue that plaintiffs were stripped of much of their ability to seek redress for everything from workplace injuries to consumer fraud. In fact, studies done for the Texas Department of Insurance found that businesses facing lawsuits became more aggressive because of the new laws, making low settlement offers or refusing to negotiate.

"Instead of settling a case, more insurers are telling their counsel to take it to trial," reported one study by the University of Texas conducted for the insurance department two years after the law.

For the Bush administration, tort-law changes at the federal level makes almost perfect political sense. It unites business groups willing to send millions of dollars to sympathetic politicians to fight plaintiffs' lawyers, often generous patrons of Democrats.

Despite Mr. Bush's long-held views on "junk and frivolous" lawsuits, Karl Rove, his longtime top political adviser, apparently had to persuade Mr. Bush to make tort reform part of his 1994 campaign for governor.

"I sort of talked him into that one," Mr. Rove is quoted as saying in a coming book, "Bush's Brain: How Karl Rove Made George W. Bush Presidential," by Wayne Slater and James Moore. (here)

Bush asks again for medical suit caps

SCRANTON, PA. -- President Bush said that a nationwide ceiling on medical malpractice awards would drive down health care costs. But critics said he was siding with mismanaged insurance companies that pass inflated costs to patients.

Bush's proposal would limit the pain and suffering portions of malpractice awards at $250,000.

Pennsylvania is one of 13 states that prohibit limiting malpractice awards. It is also the state with the highest rate of doctors who repeatedly commit medical malpractice, according to a report this week by a consumer group.

Sen. John Edwards of North Carolina said Thursday that Bush was "once again standing with his insider friends in the insurance industry and standing against seriously injured children and families."

"The truth is the insurance industry has done poorly in the market and is simply passing those costs on to doctors and patients," he said. (more here)

Sorry About Your Blind Kid

Minneapolis Star/Tribune

WASHINGTON, D.C. -- Linda McDougal, whose breasts were removed in an unnecessary surgery at a St. Paul hospital, came to Capitol Hill on Thursday to say that President Bush "intends to harm me and other victims" by seeking to put a $250,000 limit on jury awards for victims of medical errors.

"I have lived with the horror of this for over 7 1/2 months . . . I will never have what I had before," McDougal said at a news conference.

McDougal, who went public with her story last week, has found allies in Washington. They include the Association of Trial Lawyers of America and the Center for Justice and Democracy, two groups that are publicizing her case as they fight the president's plan.

Bush argues that too many doctors can't afford malpractice insurance and that jury awards are driving up health costs. With unlimited awards, Bush says, doctors can be pressured into settling cases, "and the system looks like a giant lottery."

Scott Olsen of San Diego, whose 12-year-old son Steven was left blind and brain-damaged because of medical negligence, disagreed.

"Mr. President, I assure you, my son never bought a ticket for this lottery," Olsen said at the news conference with McDougal.

Steven was awarded $7.1 million by a jury, but a judge reduced that to $250,000, citing a California law that Bush is proposing as a national model. "My son was literally robbed blind," Olsen said.

Sen. Mark Dayton, D-Minn., said he opposes Bush's plan. He said that while Republicans normally oppose government regulation, they "want to put a limit on what people of ordinary means are able to collect under distress." He said it would be wrong for Congress to arbitrarily set a limit on awards.

"I don't know who can make that decision any more wisely than a jury and/or a judge who's most familiar with that case," he said. (here)

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