President Bush and Sen. John Edwards of North Carolina represent two contrasting sides of legal liability settlements. Candidate Bush gave bold views with specific goals during the campaign. Last week in Scranton, Pa., Bush renewed a call to cap “pain and suffering” awards at $250,000. Edwards said recently that the administration plans would benefit the insurance industry at the expense of patients injured by doctors. He and Sen. Edward Kennedy of Massachusetts and Patrick Leahy of Vermont want to shift the blame and impose “tougher regulation of insurance companies.” They believe that victims have a right to unlimited access to compensation ? from presumed deep pockets.
But the economic costs of lawsuits and excessive payoffs are enormous and increasing. A few profit handsomely at the expense of many. Using only the top 10 jury verdicts nationally in 1999 as an example, lawyers, court experts, and other costs siphoned nearly $5 billion. Small businesses, high-tech companies and especially doctors are vulnerable. The average medical malpractice jury award is $3.5 million. But we all pay the “lawsuit tax.”
According to a position paper on Civil Justice Reform, issued by the Republican National Committee in February 2000, litigation costs us an estimated $8 of a $12 DPT vaccine, $191 of a $578 tonsillectomy, and $3,000 of an $18,000 pacemaker.
Edwards, self-proclaimed champion of the “little guy,” got his share, and then some. With obsessive preparation and theatrics in the courtroom, Edwards was all over North Carolina persuading juries to demand punishing payments.
In February 2000, then-Gov. Bush’s position on civil justice reform included protecting innocent people against frivolous lawsuits, encouraging reasonable settlements and enacting a Client’s Bill of Rights to protect against unscrupulous attorneys’ fees.
Up against the powerful trial-lawyer lobby, reformation won’t be easy. Edwards and his supporters say, “It would be terribly wrong to take (seriously injured) patients’ rights away.” And the liberal press is doing its part to dramatize medical mistakes and promote “pain and suffering.” An Associated Press article, coinciding with the president’s speech in Pennsylvania, announced, “1,500 tools left inside patients.”
Hearst Newspapers columnist Helen Thomas hopes Congress stops “a big push for tort reform.” Thomas writes that $250,000 (cap) isn’t enough for “pain and suffering.” Right, Helen. That probably wouldn’t even cover payments on Edwards’s mansion in Raleigh, his beach house on the coast, and his $2.2 million house near toney Embassy Row in Washington, D.C.
Meanwhile, “little guys” in West Virginia, Pennsylvania, North Carolina, and other places of little interest to the Beltway elite, face prospects of not being able to find a physician they need. Doctors won’t risk threats of malpractice and can’t afford astronomical insurance costs, so they’re leaving ? or won’t come to practice.
Dr. James D. Hundley, a Wilmington, N.C. orthopedic surgeon, warns that we face a crisis. Although, not an alarmist, Dr. Hundley has reason to be alarmed.
“Why must all physicians, not just ‘bad’ ones, fear that a single jury award that exceeds their malpractice insurance coverage could wipe out their careers and their family’s assets for the rest of their lives?” he asks. Why, indeed.
Raleigh native Dr. Joseph M. Jenkins said the medical malpractice issue isn’t new, but is now an “acute exacerbation of a chronic problem,” dating to the 1970s. Insurers are leaving the state. During the ’90s boom times they could subsidize malpractice premiums with high-yielding investments. Now, with mounting losses, they must charge the real cost for service, up to 50 percent to 100 percent increases for high-risk specialties.
Dr. Jenkins uses the “Perfect Storm” analogy ? multiple events coming together to create an insurmountable condition. Doctors’ income is declining as costs rise: managed care has reduced compensation; Medicare announced a physician pay cut for 2003; a large state budget deficit will likely force reduced Medicaid payments; and huge increases in professional liability insurance costs are converging on the medical ship. These problems threaten patients as well as doctors.
Dr. Hundley says that threats of malpractice, rather than providing better medicine, as people like Thomas think, now give patients more expensive “defensive medicine.” Consumers of medical services see this practice reflected in highly inflated bills and unnecessary tests, and the situation worsening.
It remains to be seen how far Edwards will go to support trial-lawyer lobbyists, on whom he counts to help raise millions he will need this year for his presidential run. And there won’t be much public sympathy for Big Insurance. But a Bush administration spokeswoman said, “The president hopes that Democrats in the Senate will put partisanship aside and focus on what’s best for patients.”
That’s not likely, but if Congress won’t help, state legislatures should. Where access to health care is threatened, legislators must curtail the legal lottery and restore civil justice for all.
R.E.Smith Jr. is a freelance writer living in Wilmington, N.C. Formerly he was associate professor at the State University of New York, and worked with the USDA in Washington, D.C.