Hijacking Our Civil Justice System at the Expense of Innocent Victims

Republicans continue to push for a $250,000 federal cap on non-economic damages and shortening the statute of limitations. Fortunately, the HR 5 bill, known as the Help Efficient, Accessible, Low-Cost, Timely Healthcare (HEALTH) Act, has little chance of passing the Democrat-controlled Senate. HR would, among other things, impose a $250,000 federal cap on non-economic damages. HR 5 is a terrible deal for the American citizen and a great deal for negligent doctors, hospitals, and corporate wrongdoers. Why, despite the risk of malpractice lawsuits, does the health system create or at least tolerate situations that are dangerous for patients?

“Democrats accuse Republicans of siding with insurers instead of injured patients, and the Republicans say Democrats are beholden to trial lawyers.”

Tort reformers blame medical malpractice lawsuits and sympathetic juries for skyrocketing health care and medical malpractice insurance costs. They claim that doctors have to engage in defensive medical practices, like performing non-essential or duplicate tests, in order to protect themselves from frivolous medical malpractice lawsuits. What is “defensive medicine”, anyway? If a test is necessary, perform it; if it is not, don’t. The threat of a lawsuit should not cause any doctor to perform an unnecessary test.

Damages caps affect serious cases of malpractice; the “frivolous lawsuit” often proffered as the reason we need tort reform is, by definition, worthless. It does not need a damages cap. Tort reform restricts the victim’s access to justice in serious cases and trivializes the lives and health of the victim. A cap of $250,000 on awards for pain and suffering is utterly inadequate for someone left blind, paraplegic, brain damaged or left with a deadly illness due to the negligence of a doctor or hospital. Because hospitals, doctors, drug and device manufacturers line the pockets of supportive politicians, many of those greedy conservative politicians have lined up at the campaign contribution feeding trough. Rick Perry, Republican Governor of Texas and current Republican candidate for president, touts Texas tort reform as one of his biggest accomplishments. But Public Citizen has shown that every claim made about the benefits of Texas tort reform has been proven false.

Looking at tort reform in Texas, malpractice payouts have gone down, but has the “extra money” earned from the savings benefited the state or its citizens? All of it has gone into the pockets of insurance companies and insurance company executives. The cost of healthcare hasn’t gone down, the cost of health insurance hasn’t gone down, the number of people with health insurance hasn’t gone up, and doctors haven’t come flocking to Texas. The only thing tort reform has done is create more obscene profits for insurance companies and hurt the innocent victims of bad doctors. Tort reform does nothing to create an atmosphere where doctors and hospitals can deliver more effective health care. Doctors don’t pay the price for tort reform; neither do the insurance companies who are laughing all the way to the bank. It is the victim who pays twice: with significant sacrifice to his health and safety and, again, because he cannot sustain himself, financially, on the reduced financial compensation that tort reform mandates.

Don’t believe me? Ask Alvin Berry, a Texas citizen who voted for Proposition 12, a 2003 travesty placed on the state ballot to limit recoveries in medical malpractice cases. Mr. Berry had been drinking Governor Perry’s tort reform Kool Aid and thought there were too many “frivolous lawsuits” in Texas. Then, tragically, he became a victim, himself. His doctor, for some inexplicable reason, ignored lab results, indicative of prostate cancer, for months. When a biopsy was finally ordered, prostate cancer that had spread to his bones; Berry was given five years to live. Because of the damage caps that his vote helped make possible; the case may not resolve in his short lifespan; insurance companies have little incentive to settle with potential damages awards so limited. After a potentially long battle (that he might not survive), court costs, attorneys’ fees, and other expenses, Berry would be lucky to recover $75,000, if that much.

Numerous studies have documented ongoing problems with patient safety, as well as significant flaws in the way the legal system currently handles malpractice cases. The majority of patients who suffer a medical error are not compensated. On average, patients must wait nearly five years to resolve claims and receive payments from a malpractice case. In Mr. Berry’s case, he may not live long enough to seek justice. Tort reform is a terrible deal for American citizens, a great deal for negligent doctors, hospitals, and corporate wrongdoers.

I have written post after post about the corporate fleecing of our civil justice rights and the trampling of the 7th Amendment by corporate interests and the politicians whose campaigns who profit from these interests. It is a horrible fate to be a victim of negligence, especially in the operating room by someone in whose hands you placed your life or the life of a loved one; it is insult upon injury to be victimized twice for the same thing Tort reform restricts a victim’s access to justice and trivializes the lives and health of the victims.

So far, malpractice ‘reforms’ have varied state-to-state. Some states are more onerous than others; some have resisted (good for them!) any type of liability-civil justice restrictions. HR 5 would make the most onerous restrictions the law of the land in the entire country. “Tort reform” has the perverse effect of penalizing taxpayers through government funded bailouts of negligent actors. Tort reform either excludes the plaintiff completely from the court system or limits the recovery to only a portion of the plaintiff’s actual life or health care needs. The wrongdoer is relieved of responsibility and the burden is placed on the taxpayers in the form of Medicare, Medicaid and assistance programs. And the Republican Party, the party of so-called “fiscal responsibility”, “personal responsibility” and “less government”, supports this shift of responsibility from the private sector (doctors, hospitals and insurance companies paying victims for the harm they have done) to the public sector (Medicare, Medicaid and public assistance pay the victims as the result of a taxpayer funded “bailout” of the wealthiest segments of our society). This is political hypocrisy at its finest.

The U.S. Chamber of Commerce, big business and insurance companies spend millions of dollars to convince everyone that the system is broken, that “lawsuit abuse” is hurting corporate America. The U.S. Chamber of Commerce and most medical associations try to convince you that there is a need to limit the amount that juries can award. More insurance company profit is what the Chamber seeks; it is “good for business”; apparently, holding doctors and hospitals responsible for their mistakes and forcing them to improve safety, is “bad for business”. But, what of the citizens whose lives were ruined or who lost loved ones because of medical neglect? Should seriously injured or deceased victims accept damages caps to strengthen the bottom lines of the richest corporations in the world? Is that who we are? Is that what America has become? The right to a trial by a jury is the most fundamental of our constitutional rights and why most Democrats and all trial lawyers stand up for civil justice. Tort reform re-victimizes victims to the benefit of doctors, hospitals and insurance companies.

Republicans support "separation of powers" but seek to legislate the judicial branch? This debate is not about "trial lawyers" or "insurance companies"; it is about justice, the justice system, and the rights of our injured and deceased citizens. We have a 7th Amendment in this country. It guarantees the right to a jury trial in virtually all civil cases. Constitutional ("from my cold, dead hands") Republicans are very selective when they seek to enforce constitutional guarantees; the 2nd Amendment is of vital importance to them even though firearm injuries have caused 32,300 deaths annually between 1980 and 2006. Republicans say the economy and health care need tort reform, but they talk out of both sides of their mouths. Significant savings could be had with serious gun control, gun education and gun safety laws. The medical cost per gun injury is approximately $17,000. In 1994, there were 34,445 gunshot injuries in the United States which produced $2.3 billion in lifetime medical costs, of which $1.1 billion (49%) was paid by US taxpayers. If gunshot injuries represent a substantial burden to the medical care system, why does no Republican address the relationship between guns and health care costs? Is it because they get millions in campaign contributions from the gun lobby? If health care costs and the constitution are as important as their rhetoric suggests, why is the 2^nd Amendment so important and the 7th Amendment so meaningless? This is hypocrisy at its finest.

We, all of us, are merely one sudden incident away from being victims, ourselves. Alvin Berry discovered this the hard way, under most tragic circumstances. Don’t wait to be a victim. Find out you state’s elected officials’ position on a citizen’s right to sue and collect indemnification in personal damage and incapacity cases. If he/she stands for denying the right to sue for injuries and collect what a judge or jury, fairly, determines they are worth, vote for his/her opponent. It is too late for Alvin Berry; don’t wait until it is too late for you and yours.

Mark Bello has thirty-three years experience as a trial lawyer and twelve years as an underwriter and situational analyst in the lawsuit funding industry. He is the owner and founder of Lawsuit Financial Corporation which helps provide cash flow solutions and consulting when necessities of life funding is needed during litigation. Bello is a Justice Pac member of the American Association for Justice, Sustaining and Justice Pac member of the Michigan Association for Justice, Business Associate of the Florida, Tennessee, and Colorado Associations for Justice, a member of the American Bar Association, the State Bar of Michigan and the Injury Board.