Litigation industry 'doth protest too much'


Well, things changed a bit. After countless Americans posed tough questions about tort reform to their lawmakers during town hall meetings, some political candor from former physician and Democratic National Committee chair Howard Dean, a New York Times op-ed urging compromise by former Sen. Bill Bradley (D-NJ) and editorial support from even some reliably liberal newspapers such as the Chicago Tribune, tort reform was suddenly and squarely on the table.

As rumors that the president would offer a tort reform olive branch to Republicans swirled out of the White House speechwriting shop in the days leading up to his Wednesday night remarks before a joint session of Congress, the trial lawyer lobby finally lost its cool and went on the defensive. The so-called American Association for Justice, formerly known as the Association of Trial Lawyers of America (“Justice” apparently polls better than “Trial Lawyers”) issued a fire-breathing news release, arguing that “patients’ rights” were being treated like “bargaining chips,” and purporting to offer a new “analysis” of litigation’s impact on health care costs. It hastily scheduled a news conference with reporters just hours before the president’s speech.

Of course, neither the president nor anyone else is threatening patients’ rights. Considering that a 2006 Harvard School of Public Health study revealed that 40 percent of all medical malpractice lawsuits filed each year are “groundless,” how can reducing the number of such lawsuits, and thereby inarguably making health care more affordable and more accessible, be construed as an attack on patients’ rights?

Not surprisingly, the personal injury lawyers cherry-pick dated and less-than-comprehensive data in arguing that health care costs are barely affected by litigation. But a 2008 Massachusetts Medical Society survey of 900 Bay State physicians indicated that 83% practice “defensive medicine” to the tune of $1.4 billion in added annual health care costs in that small state alone. Nationwide defensive medicine estimates range up to $200 billion. And none of this even begins to count the added malpractice insurance premiums paid by doctors and hospitals, much less the costs resulting from incessant lawsuits against the makers of various life-saving and life-enhancing prescription drugs and medical technologies, all of which are ultimately passed on to patients and taxpayers.

Certainly real victims of medical negligence must be fairly and promptly compensated. But all objective observers now understand that public policy must discourage litigation that abuses our civil justice system and makes health care less accessible and more expensive. President Obama is to be commended for acknowledging the problem, but “demonstration projects” in a few states won’t be enough to solve it. Besides, we already know what tort reforms work because many states have enacted them and succeeded in reining in meritless litigation as a means to improving health care delivery.

Meanwhile, the trial lawyers are still throwing a lot of cash around on Capitol Hill. So, even if the administration were actually to make some meaningful medical liability recommendations, there’s no guarantee such recommendations would end up in final legislation. And the president certainly didn’t leave anyone with the impression that he’d veto legislation if they don’t. So perhaps the trial lawyers got all worked up over nothing. They can probably just take two aspirin and write a few more campaign checks in the morning.