The hype over `tort reform': Rhetoric over reality
January 11, 2005 12:15

(KRT) - The following editorial appeared in the Philadelphia Inquirer on Monday, Jan. 10:

If President Bush plans to rail against the supposed crippling impact of medical malpractice lawsuits on health-care access and costs, he shouldn't go to Madison County, Ill., anymore.

Bush last week journeyed to the place that business-funded advocates dubbed America's top "judicial hellhole" to tout his plans to curb citizens' access to the courts. But there was a problem: Both Madison and a neighboring county are seeing a decline in malpractice awards these days, with only one of six malpractice verdicts issued over seven years topping $1 million.

No matter. Rhetoric in the debate over so-called tort reform regularly diverges from on-the-ground reality. So you had Bush, standing with white-coated docs and others, decrying "junk lawsuits."

Might as well come to Philadelphia next time, Mr. President. Our civil courts also have been labeled a "hellhole." Yet malpractice filings here, thanks to court-rule changes, recently fell to a 14-year low.

Given the president's rhetoric, you'd think al-Qaeda had been replaced as the greatest threat to our way of life. Now it's lawsuits by patients claiming harm from medical errors.

The congressional fixes for this "crisis" proposed by Bush and allies are as overwrought as their rhetoric.

Rising malpractice insurance costs? Venue-shopping for friendly juries? Out-size punitive-award verdicts? Getting medical errors under control? All legitimate issues for government regulators, industry and the courts to tackle. And many people are working on good ideas to deal with them. Results are being seen.

But Republican leaders are focused on heavy-handed steps - from a proposed $250,000 cap on pain and suffering damage awards, to federalizing all class-action lawsuits.

At worst, these measures could deny court access to citizens with legitimate cases. At best, they'd have minimal impact on doctors' insurance premiums and health-care costs. By Congressional Budget Office reckoning, lawsuits are one of the smallest factors driving rising health costs - at less than 2 percent.

Shifting most class-action lawsuits from state to federal courts makes no sense, and is opposed by the nation's top judges. Sending these cases - whether consumer, environmental, civil rights - to overburdened federal courts risks delaying or quashing legitimate claims.

What's more, the courts themselves are taking steps to deal with problems like bloated lawyer settlement fees.

Another aspect of the damage-caps proposal would bar punitive damages against drug firms as long as they met U.S. Food and Drug Administration standards. You might go along with that if the FDA were a strict, top-of-its-game regulator that never slept, never got fooled. Post-Vioxx, that's hard to contend.

In any area where the public interest is at stake - drugs, food safety, workplace safety, environmental protection - corporate behavior needs to be checked by a combination of regulation and lawsuit.

Hate the randomness of torts? Then tighten up on regulation. Hate the red tape of regulation? Then take your chances with torts.

What's happening now is that corporate interests want the politicians whom they've generously supported to eliminate both pesky regulation and troublesome torts. The Republicans who run Washington seem eager to comply.

Far worse than "junk lawsuits" would be junk lawmaking that scuttles basic legal protections for citizens.

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