Victimizing the Victims

By Woodall, Patrick | Multinational Monitor, May-June 2004 | Go to article overview

Victimizing the Victims


Woodall, Patrick, Multinational Monitor


WITH REPUBLICANS IN CONTROL of both houses of Congress and the presidency since 2002, corporate interests have had their best opportunity to advance legislation to limit access to U.S. courts to redress unsafe products and negligent doctors. Curtailing lawsuits against businesses and limiting the size of judgments against them--what proponents call "tort reform" and consumer groups denigrate as "tort deform"--has long been a key legislative goal of the business community.

According to tort reform proponents, business is beleaguered by a wave of plaintiff lawsuits with huge damage awards. The only hope for relief, claim the business lobbyists, is to limit the number and scope of these lawsuits.

"Lawsuit abuse raises consumer prices, cripples companies, drives down shareholder value and clogs our courts with frivolous lawsuits that do little more than enrich unscrupulous lawyers," says Lisa Rickard, president of the Institute for Legal Reform, an affiliate of the U.S. Chamber of Commerce.

But the numbers don't support the corporate claims. The frequency of tort suits has been declining for a decade. According to an April 2004 Department of Justice study, the number of tort cases in state courts declined by nearly a third (32 percent) between 1992 and 2001. Only 3 percent of cases ever go to trial and the median jury trial award fell by more than half, from $64,000 in 1992 to $28,000 in 2001.

To date, special interests and Republican lawmakers have been unable to capitalize on their political gains to achieve tort reform at the federal level--though state limits on the ability of victims to sue makers of defective products, negligent doctors and other perpetrators are spreading like wildfire.

Over the past two years, the GOP has moved the tort reform efforts to the top of its agenda. Three Bush administration-supported measures have passed the House of Representatives but died narrowly in the Senate. Medical malpractice reform, significant changes to class action lawsuits, and limitations to asbestos liability claims have all been flagship measures in the broader tort reform effort of the big business-Republican alliance.

Medical Malpractice: Approximately 80,000 people die annually in the United States as a result of medical error and negligence in hospitals alone, according to the Harvard School of Public Health, and hundreds of thousands more suffer from lesser injury or disease due to malpractice. A relatively small fraction of these injured patients or their families sues for compensation--many remain unaware that their ailments are due to malpractice and were preventable.

Doctors have contended the real problem is not bad care, but excessive lawsuits. They contend that frivolous lawsuits have driven up the cost of malpractice insurance, thereby driving up the overall costs of health care.

"The civil litigation system in the United States has evolved into a 'lawsuit lottery' where a few patients and their lawyers receive astronomical awards, and the rest of society pays the price," wrote the president of the American Medical Association (AMA) in endorsing a medical malpractice reform proposal introduced by Representative Jim Greenwood, R-Pennsylvania. Greenwood's legislation would cap pain and suffering awards for medical malpractice suits at $250,000. Consumer groups say the plan would disregard the extent of injuries patients suffer and unfairly disadvantage children and seniors with little income to justify economic damages (primarily income lost due to injuries).

A tiny number of doctors commit the majority of malpractice cases. About half of recent malpractice premium increases are related to losses insurers faced on Wall Street, not increases in lawsuits, according to the General Accounting Office, the Congressional research arm. Moreover, it is not easy to win a malpractice claim--in part, consumer groups charge, because jurors have been poisoned by anti-patient propaganda from the insurance industry and doctors' groups. …

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