By Congressman Lamar Smith
We need nationwide legislation to deter frivolous malpractice suits
As legal commentator Stuart Taylor has written Playgrounds all over the country have been stripped of monkey bars jungle gyms high slides & swings seesaws and other old-fashioned equipment once popularized by President John F. Kennedys physical-fitness campaign. The reason: thousands of lawsuits by people who hurt themselves at playgrounds ... Now kids sit at home and get fat and their parents sue McDonalds."
To name just a few federal lawsuits have been brought against U.S. weather forecasters for wrong predictions.
Parents have sued over a schools decision to drop their teenagers from the drum major squad.
And a couple sued Frito Lay claiming Dorito chips were inherently dangerous."
That Doritos case was finally dismissed but only after eight years of costly litigation when a federal judge finally pointed out the common sense notion that it is necessary to properly chew hard foodstuffs prior to swallowing."
The Congressional Budget Office found that capping certain forms of lawsuit damages would result in $54 billion in savings. That could be used to provide health insurance for the uninsured without raising taxes on those who already have insurance policies.
Also according to the CBO under a Republican health care tort reform bill called the HEALTH Act premiums for medical malpractice insurance ultimately would be an average of 25 to 30 below what they would be under current law."
Weve seen how the Democrats health care bills which passed the House and Senate failed to contain any of the tort reforms the Congressional Budget Office concluded would reduce health care costs.
Even worse the Democrats health care bill not only fails to contain any of the tort reforms the CBO concluded would save health care costs but it also contains a provision that explicitly allows trial lawyers to opt-out" of any alternative liability system. That means that if their frivolous lawsuits are limited by an alternative system they can simply opt-out" of the alternative system and file in court just like they always have.
Section 10607 of the Senate bill the House passed states that any states proposed alternative" to litigation must provide patients the ability to opt out of or voluntarily withdraw from participating in the alternative at any time and to pursue other options including litigation outside the alternative." So the bill literally prohibits any alternative to litigation or any new limits on litigation from being enforced.
Also not only are the reforms CBO concluded would save at least $54 billion in health care costs prevented from being enforced under the legislation but the legislation requires that the Secretary of Health and Human Services provide states with guidance on the award of non-economic damages ... in determining appropriate payment."
Consequently not only does this legislation prevent states from taking part in the federally-funded demonstration projects if they seek to enforce the reforms the CBO said would save $54 billion; it also requires the Secretary of Health and Human Services to encourage states to adopt lawsuit damages the CBO has concluded would raise health care costs not lower them. Thats not tort reform. It is tort deform.
The reason Democrats refuse to consider medical lawsuit reform remains purely political as was revealed by former Democratic National Committee Chairman Howard Dean. Responding to a question at a town hall about why tort reform was not included in the Democrats health-care overhaul Dean candidly admitted:
… the reason why tort reform is not in the bill is because the people who wrote it did not want to take on the trial lawyers in addition to everybody else they were taking on and that is the plain and simple truth."
Furthermore the cabinet secretary tasked with implementing this proposal for demonstration projects is Secretary of Health and Human Services Kathleen Sebelius who spent eight years as the head of the Kansas Trial Lawyers Association.
Beyond that the top contributor to President Obamas presidential campaign was the legal industry whose donations came to more than $43 million. More than 80 of the money given to Congress by lawyers mostly from trial lawyers went to Democratsalmost $22 million.
A recent survey found that 83 of Americans believe that reforming the legal system needs to be a part of any health care reform plan.
Discussing the need for tort reform the President of the American Medical Association said If the health care bill doesnt have medical liability reform in it then we dont see how it is going to be successful in controlling costs."
According to a study by the Harvard School of Public Health 40 of medical malpractice suits filed in the U.S. are without merit." These frivolous lawsuits amount to legalized extortion and force doctors to purchase malpractice insurance at great expense. A comprehensive Department of Health and Human Services study found that unlimited excessive damages add between $70 and $126 billion annually to health care costs.
Doctors are so concerned about frivolous lawsuits that they order unnecessaryand often expensivetests and procedures. The Massachusetts Medical Society found that 83 of its doctors practice defensive medicine. The Department of Health and Human Services estimates the national cost of defensive medicine is more than $60 billion.
The costs of litigation insurance and defensive medicine are then passed on to the patient in the price of health care.
Thats why some states including my home state of Texas have enacted tort reform to limit the amount of damages that can be awarded for pain and suffering. The result? More than 14000 doctors set up new practices in the state. That means Texans pay less to have better health care and more options.
The success of state-enacted tort reforms is why we need to enact nationwide legislation to deter frivolous malpractice suits while still assuring adequate compensation for those injured by negligence. Republicans in Congress have pushed for these reforms but Democrats and their trial lawyer supporters have blocked our efforts.
During the last two Congresses in which the Republicans were in the majority I managed the time on the House floor debate of the HEALTH Act which was modeled on the very same health care reforms that CBO concluded will yield at least $54 billion in health cost savings. I was also the author of the Lawsuit Abuse Reduction Act which would amend Federal Rule 11 to require that lawyers who file frivolous lawsuits face mandatory sanctions for bringing unjustified lawsuits.
While both the HEALTH Act and the Lawsuit Abuse Reduction Act passed the House they were stalled in the Senate by Democratic opposition. And now that the Democrats are in the majority there is little prospect those bills will appear anywhere on the Congressional legislative agenda.
Still I know we wont give up and that is reassuring. Reforming the legal system that is abused by some lawyers and doesnt serve the American people as well as it should is a must.
Sooner or later we will prevail.
