Latimer on Law

Tort Reform and Other Shibboleths of the Wingnut GOP

                                            Tort Reform and Other Shibboleths of the Wingnut GOP

                                                 The contingent fee is the poor man's key to the courthouse.

             But there is one way in this country in which all men are created equal-there is one human institution that makes a pauper the equal of a Rockefeller, the stupid man the equal of an Einstein, and the ignorant man the equal of any college president. That institution, gentlemen, is a court. . . . Our courts have their faults, as does any human institution, but in this country our courts are the great levelers, and in our courts all men are created equal."

              - Harper Lee, To Kill a Mockingbird    

             It is unwise to pay too much but it is worse to pay too little. When you pay too much you lose a little money. When you pay too little you sometimes lose everything because the thing you bought was incapable of doing the thing it was bought to do. The common sense law of business balance prohibits paying a little and getting a lot. It can't be done.

             - John Ruskin

            In any health care lawsuit, the amount of noneconomic damages, if available may be as much as $250,000, regardless of the number of parties against whom the action is brought or the number of separate claims or actions brought with respect to the same injury.

            -Amendment in the Nature of a Substitute to H.R. 3962, Div. C, Sect. 302(b)

               The GOP's all-out obstructionist war on President Obama's efforts to restore prosperity and equality to American society is focused right now on the issue of health care.  It's just one of many fronts, but as GOP Senator Jim DeMint of South Carolina has stated they want health care to be Obama's "Waterloo," public health and welfare be damned.

              Predictably, the Republican scaremongering has focused on the big government bogeyman - not when that big bad federal government steps up to bail out private corporations after they run the economy into the ground, mind you, nor when it starts an overseas war of corporate opportunity to steal another country's natural resources as in Iraq.  No, the big federal government is bad only when it proposes to provide a basic service like health care both fairly and economically for all Americans.

             That's when we hear all the tried and true right wing shibboleths, calling Obama's public option health care plan "socialism."  Never mind that the Constitution expressly states at Article II, Section 8, that the federal government can raise taxes for the specific purpose of promoting the general welfare -where nothing could be more in keeping with that objective than providing adequate health coverage for everyone. 

            Never mind, too, that neither the word "socialism" nor "capitalism" is found anywhere in the Constitution, as they are merely economic models, either or both of which can comfortably work within the constitutional framework of our democratic government.  No, that just can't work for the Republican right wing, the success of publicly funded health care in other democracies aside, because it contradicts their small-government, anti-tax ideology.  Ronald Reagan's Freudian slip that "facts are stupid things" sums it up nicely for them, because the facts always get in the way of  their right wing ideological purity.

              So the GOP true believers still cling to that laissez faire nonsense based on Adam Smith's magic "invisible hand" that guides the unregulated market to attain the best of all possible worlds.  You know, that's where greedy profit oriented entrepreneurs working solely in their own self-interest will somehow, presto, achieve the best possible outcome for everyone.  But Adam Smith wasn't around in 1929 or 2008, was he?  After the crash of 2008, even the staunchest latter-day intellectual exponent of that nonsense, Alan Greenspan, had to admit after the debacle of the Bush administration became manifest, that he and the John Galts of the world were wrong all along. 

           Meanwhile, the GOP has finally released a draft of its own Insurance Industry Relief Bill of 2009 this week -otherwise known in GOP double speak as a "health care reform" bill, and its preface contains all the usual right wing shibboleths straight from the Ouingnut Ouija board, including taxes, privatization vs. big government and, of course, "tort reform."  That one's a beaut, too, blaming all excessive health care costs on doctors scared of being sued as opposed to, say, insurance industry greed. No, Dorothy, don't pay any mind to that man behind the curtain because we're still in Oz as far as the GOP is concerned.

            So let's think this through. When you have that pain in your chest or lump on your breast you want to go to the doctor who tests you only because he's scared of being sued as opposed to the doctor who takes advantage of the latest diagnostic technologies in order to get it right and provide you with appropriate treatment, consistent with the oath he took.  You want the doctor who, because of lower insurance premiums, will say to hell with all that testing junk and just make his diagnoses by throwing darts and seeing where they hit so he can make his tee time. Isn't that right, Binky?  Well the wingnut GOP solons in Washington apparently think you're that stupid -in fact, they're depending on it.

          So-called "tort reform" is one of the most enduring of the right-wing GOP shibboleths.  President Obama wants real health care reform, to make affordable health care available to everyone while getting doctors paid fair compensation by reducing or, even better, eliminating insurance industry profiteering from the equation. Obama's approach recognizes that the real difficulty with providing affordable health care today is based on insurance industry excesses having little or nothing to do with actually getting your doctor paid.  Just consider how much of your premium dollar, or your employer's, actually gets to pay the doctor.

           There are the outsized insurance executive salaries, bonuses and perks, the risky speculative investments, the competition based on expensive media advertising rather than actual competitive pricing, the self-aggrandizing real estate development with phallic office towers jutting up over every major city skyline, the high priced corporate lawyers fighting with unlimited budgets against local plaintiff's lawyers who dare question a claim denial in court and the cadre of lawyers and actuaries hired to devise "perfectly legal" ways to deny the coverage we pay for.  That's all in addition to the millions being paid to the swarms of K-Street lobbyists talking to your congressman as you read this.

          Only then, after being repeatedly stepped on by such non-essential costs does the first penny of your premium dollar go to paying your doctor.  The GOP is blind to those factors as the real source of the problem because they don't fall into lockstep with right wing "free market" ideology.  For them the problem must be the tort lawyers, and here we see a right wing double-dipper as well.

           The GOP's right wing corporatists get to stick their chips into our dip twice with this one, so forget about reforming the health care system in ways that will actually benefit both doctors and patients by reducing insurance industry profits.  Here, the GOP proposal for "tort reform" seeks mainly to protect health insurer profit margins by presumably getting doctors to order fewer costly tests like MRI, CAT Scans et cetera, characterized as "defensive medicine," while at the same time certainly protecting liability insurer profitability immensely.

           They seek to protect liability insurer profitability by putting arbitrary and wholly inadequate limits on tort recoveries by patients injured or killed by a doctor's negligence, as with the Amendment in the Nature of a Substitute to H.R. 3962, Sect. 302(b), offered this week by Mr. Boehner of Ohio on behalf of the Republican Party:

 In any health care lawsuit, the amount of noneconomic damages, if available may be as much as $250,000, regardless of the number of parties against whom the action is brought or the number of separate claims or actions brought with respect to the same injury.

This would limit the total amount any personal injury claimant can receive from any and all sources for "non-economic loss."

           "Non economic" loss means anything other than direct medical costs and lost earning capacity.  This term includes intractable pain, loss of a limb, severe scarring  and other disfigurement, loss of sight or hearing, loss of sexual function, severe depression, anxiety et cetera, all of which would be limited to $250,000 -or about five percent of the cost of an insurance CEO's private jet -assuming he's a stiff who buys a low end bird for around six million.

            While they're at it, the GOP corporatists have also slipped in liability limits for drug manufacturers and corporations making medical devices that malfunction, or are inadequately designed, causing death or serious injury:  

The term "health care lawsuit means any health care liability claim concerning the provision of health care goods or services or any medical product. . . .

See Amendment in the Nature of a Substitute to H.R. 3962, Div. C, Sect. 307, Definitions (7).  Here, by the reference to "health care goods . . . or any medical product," we see "tort reform" working not only for doctors who screw up under principles of medical malpractice but also for manufacturing corporations of medical devices under principles of product liability law.

            This way, the GOP seeks to protect both health insurer profiteering and liability insurer profiteering in one neat package, without really doing anything to expand coverage to all Americans or control the costs of health care.  Never mind the fact that in states that have enacted so-called tort reform, Texas for example with a liability cap on damages for pain and suffering since 2003, it has had zero effect on curbing the escalation of health care costs.   Consider the following facts:

(1)        The limit of $250,000 on pain and suffering for med mal cases in Texas has in fact reduced malpractice insurance premiums by about 30 per cent, but the consumer's cost for medical services and for health insurers has risen, clearly indicating that the real benefit goes to the insurers -people like the "too big to fail" AIG, rather than either the doctors or the patients:

 http://www.dallasnews.com/sharedcontent/dws/bus/columnists/jlanders/stories/DN-Landers_21bus.State.Edition1.9be351.html

Thus, the GOP's latest proposal is just another cynical attempt to continue the parasitic scam that private health insurers have been working to bleed consumers, increasing their bottom line, while denying adequate coverage to more than 20 percent of Americans, mostly working people who aren't covered under ERISA and who don't earn enough to purchase coverage on their own.

(2)        The proposed GOP legislation also would cap the amount of punitive damages available in any case at $250,000 in states which allow for punitive damages at common law. Massachusetts, however, has never allowed punitive damages except in very limited specific contexts governed by statute, still our health care costs have risen by eight percent since the enactment of Romney's mandatory health insurance plan in 2006;

http://www.boston.com/news/local/massachusetts/articles/2009/05/28/more_mass_residents_report_trouble_paying_medical_bills/?page=2

Meanwhile, the cost of basic coverage for middle income earners in Massachusetts making $30,000 or so per year can exceed $9,000, almost one third of total income.

http://www.boston.com/bostonglobe/editorial_opinion/oped/articles/2009/03/02/mass_healthcare_reform_is_failing_us/

(3)        The proposed GOP legislation, at Sect. 303, would also place limits on the amount attorneys can claim as a contingent fee, similar to the one already in place under the Massachusetts Medical Malpractice Act of 1986.  This section, cynically, is entitled "maximizing patient recovery," which is to be accomplished by creating disincentives for attorneys to take meritorious cases where, due to insurance industry defense practices, even meritorious med mal cases have become prohibitively expensive.

            Let me give you a clear example of how this works based on my own experience.  I do not handle med mal cases as a rule, but several years ago I took the case of a woman who had been taking a treadmill test for a coronary problem when the doctor told her to take a rest but stay on the treadmill while he made some notes.  While she was standing there, the doctor clumsily hit the start button catching the patient unaware and causing her to fall ass over teakettle, and she suffered a broken arm.

            That should be an open and shut case of the doctor's negligence, right?  He was careless, if not in asking that his patient remain on the treadmill at least for hitting the start button without warning to her, and that carelessness was clearly the cause of her injury, all that is needed to make out a case of negligence generally.  But, oh no, this was medical malpractice, subject to the statute don't you know.  So, what should have been a routine negligence case with modest damages as we demanded, and minimal case expenses, became a full blown med mal case under the statute.

            We therefore had to present the case to a three-doctor medical malpractice tribunal as the statute requires, which typically serves to "screen" med mal cases by requiring that the plaintiff post a prohibitively expensive bond before proceeding through litigation.  The insurer who had such difficulty in seeing its way to simply make a reasonable offer to settle a case of obvious negligence had no trouble paying it's high priced law firm to oppose the case before the tribunal, adding significantly to litigation costs which, of course, were just passed on to the doctor in the form of a higher premium.

            Usually, when a case goes before the tribunal the plaintiff needs to retain an expert witness to testify as to the doctor's medical negligence, at a greatly prohibitive cost, which also benefits the liability insurers as a deterrent to medical malpractice suits.  I chose not to hire an expert, however, and the negligence issue was so clear that, after hearing and briefing the issue, the tribunal did not require that we post a bond.  After several more months of pre-trial discovery, the case finally settled for an amount we would have accepted in the first place if the insurer had just made a reasonable counter offer instead of seeking to derail this basically garden variety negligence case, and driving up litigation costs, by invoking the cumbersome and costly med mal tribunal procedure.    

          The GOP bill now pending in the House goes even further than the Massachusetts statute in restricting the rights of individuals injured by medical negligence, and like the Massachusetts statute and the Texas statute, there is no basis to believe it would even have the slightest effect in reducing health costs generally.  Yes, it may reduce your doctor's insurance premium somewhat, but in reality it is nothing more than the Insurance Industry Relief Bill of 2009.

          Such insurance industry relief would be paid for by you and me, of course, in the form of losing our common law right to just compensation for negligently inflicted injuries, while creating a statutory scheme which, if correctly premised by its proponents, will allow doctors who are so inclined greater leeway to cut corners when diagnosing serious and potentially life threatening conditions. 

            That's bad health policy and, as the Ruskin quote above suggests, bad economic policy as well.  If that's what is needed to maintain the present "free market" health insurance business, then it's just another clear argument in favor of a government run, single payer health care system that covers everyone and costs less in the long run by eliminating all those extraneous expenditures private insurers take out of your premium dollar. We need a different approach that allows the bulk of your tax dollar to pay your doctor's bill instead of grossly obscene insurance industry CEO salaries and bonuses, along with other irrelevant corporate costs, as your premium dollar does today.