Tort Reform Press Articles

LA Times, "Lacking Lawyers, Justice is Denied"

          Dave Stewart's 72-year-old mother went to Stanford University Medical Center for double knee-replacement surgery in April. Four days later, she was dead. To Stewart, an anesthesiologist, it seemed a classic case of medical malpractice. After the operation, his mother developed sharp abdominal pain that she described as "10 on a scale of 1 to 10," according to her medical records. The hospital failed to diagnose the cause of her pain and continued to treat her with narcotics. Her vital signs became unstable and she was moved to the intensive care unit, but she died of complications from an untreated bowel obstruction. State regulators cited the hospital in the case this fall.
          Stewart and his two sisters decided to sue, and they approached two dozen lawyers. One after another declined to take the case, always for the same reason: It wasn't worth the money. In 1975, California enacted legislation capping malpractice payments after an outcry from doctors and insurers that oversized awards and skyrocketing insurance rates were driving physicians out of the state. The law limited the amount of money for "pain and suffering" -- usually the physical and emotional stress caused from an injury -- to $250,000. There is no limit on what patients can collect for loss of future wages or other expenses.
        Over the years, it has been easy to quantify the effects of the law, known as the Medical Injury Compensation Reform Act, or MICRA. In the years since the law was enacted, malpractice premiums in California have risen by just a third of the national average, and doctors say the law now helps attract physicians to the state. Proponents also say it discourages frivolous lawsuits.
          It's been harder to tally the law's costs. Critics say it is increasingly preventing victims and their families from getting their day in court, especially low-income workers, children and the elderly. Their reasoning: The cap on pain and suffering has never been raised nor tied to inflation. Meanwhile, the costs of putting on trials are often paid by attorneys and continue to rise each year. That means those who rely mainly on pain and suffering awards -- typically people who didn't make much money at the time of their injury -- are increasingly unattractive to lawyers.
          Several states have set their malpractice caps considerably higher than California's because of worries that they affected poorer patients the most. Some state courts have begun to examine the fairness of their malpractice laws, especially those not tied to inflation. California lawmakers have rarely reconsidered the state's malpractice legislation. Yet an analysis of state court records, physician payment data and insurer financial records suggests that the cap is increasingly preventing families such as the Stewarts from getting their day in court.
          Some families who succeed at trial in California are often surprised at how little money they see in the end. Becky Dessenberger's 2-year-old son, Jacob, died at Children's Hospital in Oakland in 2004 after surgery to repair a foot. Her son, who was suffering from bronchitis, was given a high dose of pain medication though the drug is known to cause slower breathing. He died the next day. In 2006 the family settled with the hospital, which acknowledged no wrongdoing, for just under the $250,000 cap. After deducting for trial costs and lawyer fees, Dessenberger, 36, of Suisun City, said the family received "a little over" $100,000. Dessenberger said no money would help ease her grief, but the small amount felt to her and her family like a slap in the face. "Because he was a baby, this is all he was worth," she said. "I think it is horrible. I don't think it's fair."

The New York Times, "Malpractice Myths"

          The power brokers obsessed with tort reform really have the jargon down. They travel the country with overheated stories about runaway juries and jackpot justice. The way they tell it, sinister lawyers and opportunistic plaintiffs are on the hunt, preying on virtuous corporations, hospitals and doctors in search of that big payout from the lawsuit lottery.
          In looking at medical malpractice cases, I've been amazed by the cold-blooded attitude so many people have taken toward patients who have been seriously, and sometimes grotesquely, harmed. Referring to a Wisconsin woman who had both of her breasts removed after a laboratory mix-up mistakenly indicated she had cancer, a doctor from South Carolina told a Congressional subcommittee: "She did not lose her life, and with the plastic surgery she'll have breast reconstruction better than she had before."
          One of the essential points that is overlooked by the tort reform zealots: the problem when it comes to malpractice is not the amount of money the insurance companies are making (they're doing fine) or the rates the doctors have to pay, but rather the terrible physical and emotional damage that is done to so many unsuspecting patients who fall into the hands of careless or incompetent medical personnel. What is needed is a nationwide crackdown on malpractice, not a campaign to roll back the rights of patients who are injured. This is another utterly typical example of the Bush administration going to bat for those who are economically and politically powerful against those who are economically and politically weak.

The New York Times, "Not So Frivolous"

          President Bush traveled to Youngstown, Ohio, a few weeks ago to talk about health care, and before long he was reprising his complaint about "junk and frivolous" malpractice suits, which he said are discouraging good doctors from practicing medicine. As he often does, the president called for reforms to make it more difficult for patients to seek compensation and to restrict the amount of damages that could be paid to those who prove they have been harmed.
          To bolster his argument Mr. Bush introduced a local doctor, Compton Girdharry, to an audience at Youngstown State University. Dr. Girdharry, an obstetrician/gynecologist, said he had been driven from a practice of 21 years by the high cost of malpractice insurance. The president praised Dr. Girdharry and thanked him for his "compassion."
          If Mr. Bush was looking for an example of a doctor who was victimized by frivolous lawsuits, Dr. Girdharry was not a great choice. Since the early 1990's, he has settled lawsuits and agreed to the payment of damages in a number of malpractice cases in which patients suffered horrible injuries. "It's been four years since my son passed away, and I don't feel any stronger or any happier than the day I lost him," said Lisa Vitale, whose suit against Dr. Girdharry and a hospital was settled out of court.

The New York Times, "Study Disputes View of Costly Surge in Class-Action Suits"

          A new study has concluded that both the average price of settling class-action lawsuits and the average fee paid to lawyers who bring them have held steady for a decade, even though companies have said the suits are driving up the cost of doing business, hurting the economy and lining lawyers' pockets. The issue is a fiercely divisive one that has fueled a heated debate over whether to place limits on class-action lawsuits. Legislation to curb class actions is a priority of President Bush and many Republicans in Congress.
          In their article, Mr. Eisenberg and his co-author, Geoffrey P. Miller, a New York University law professor, write that if the effects of inflation are taken into account, then from 1993 through 2002, "contrary to popular belief, we find no robust evidence that either recoveries for plaintiffs or fees for their attorneys as a percentage of the class recovery increased."
          Their initial goal, both men said, was to find out how courts historically apportioned fees to help guide judges. The study is the most comprehensive to date and draws on original research that others have not attempted, according to people who have studied class-action litigation. "The Eisenberg and Miller study is in many senses a real advance" because its authors read actual court cases to learn the provisions in settlement agreements, said Deborah R. Hensley, a law professor at Stanford who has also studied class actions.
          "I'm not surprised by the findings in the Eisenberg and Miller study in most regards because they seem quite consistent with many of the patterns we found in our much smaller pattern of case studies," Ms. Hensler said. Todd Foster, a senior consultant at NERA Economic Consulting, said that his firm also had not found an upward trend in settlement amounts.

The New York Times, "The Class Action Unfairness Act"

          Under a phony banner of legal reform, and aided by an expensive lobbying effort by business interests, the Senate is barreling ahead on legislation that would severely undermine the ability of Americans to win redress in the courts for corporate bad behavior that harms consumers, the environment or public health.
          At issue is the failure of class-action lawsuits, a valuable mechanism that allows individuals with similar injuries to band together, conserving court resources and easing citizens' access to the courts. There are real abuses in this sphere that Congress could constructively address. It could go after collusive settlements in which lawyers profit handsomely while plaintiffs are shortchanged, or the problem of overlapping or duplicative lawsuits brought in different states.
          But the mislabeled Class Action Fairness Act, just approved by the Senate Judiciary Committee, is not a plausible answer. By allowing big polluters and other corporations to move most class-action lawsuits from state courts, where they properly belong, into already overburdened federal courts and by imposing new procedural hurdles, the measure would delay, if not deny, justice to plaintiffs in legitimate class-action lawsuits.

The Daily Review, "Malpractice Suits Focus of Debate"

          Losing a breast to cancer was just the first blow to Tomita Shimamoto's world. The Oakland woman went through eight painful surgeries over the next five years to correct what she says was a botched reconstructive plastic surgery to her breast in 1991.
          Her story will forever be one of private questions, not public resolution. Despite the fact that her plastic surgeon was put on probation by the California Medical Board for falsifying prescriptions for Demerol and cocaine, Shimamoto could not find a malpractice lawyer to take her case.
          The reason? A $250,000 cap on pain and suffering in the state, she said.
          California has the strictest medical malpractice law in the country. The Bush administration and Republican members of Congress are pushing to extend California's rules to the rest of the nation -- re-igniting the debate in this state over the fairness of restricting malpractice payouts and causing concern among doctors about future liability.
          The national debate over malpractice laws -- at least figuratively -- opened old wounds for California patients such as Shimamoto.
          "Doctors are so protected," Shimamoto said. "Now, Bush wants the rest of the country to have these limits, it's just awful."

Automobile Magazine, "Tort Reform for Dummies"

          There's a lot to hate about the American legal system. I should know: I'm a lawyer. You don't have to tell me twice that there's something rotten in our civil justice system, this business with everybody suing everybody all the time. The system stinks. The only thing is, it's the only system we've got. In a land where the criminal justice system isn't up to the task (especially where white-collar crime is concerned), the threat of a big, hairy lawsuit keeps a lot of hard-charging enterprises that tiny bit more honest. With the ship of state commandeered by stowaways from the oil industry and the regulatory agencies being systematically dismantled, the lawsuit is often all that remains.
          Under the plan steaming around Washington today, punitive damages and pain and suffering in [cases like the 1970s infamous Ford Pinto case] would be capped at $250,000. The punitive damages awarded to [a victim burned through an automobile manufacturer's negligence] would be limited in total amount to less than one quarter of one percent of the 1970s judgment.
          In a country where we hardly ever send executives to jail, even when their businesses commit capital crimes, the lawsuit is the closest thing to justice on offer. You could jigger it another way that might be equally fair, but Mr. Bush's plan sure ain't the way.

The Wall Street Journal, "The Bogus Tort-Reform Case"

          It's easy to see why Karl Rove is eager to keep war and terrorism front and center. The economy remains sluggish, the Bush plan to cut taxes while waging war is embarrassing even some Republicans, and the case on another domestic priority, tort reform, is faltering.
          The president scores political points when he rails against trial lawyers and the litigation explosion, especially medical malpractice; it's the particulars that creat trouble. The latest illustration is the tragic story of the 17-year-old Mexican girl who died last month after being given a heart and lung transplant from a donor with an incompatible blood type.
          Mr. Bush and congressional Republican leaders want to cap medical malpractice awards for pain and suffering, the chief damages this family could receive. Would they really limit this impoverished family to $250,000? GOP lawmakers like Sen. Orrin Hatch already are backtracking, suggesting perhaps there could be some elusive exception.

USA Today, "Hype outraces facts in malpractice debate"

          The symptoms are popping up in state after state: doctors carrying picket signs, insurers jacking up premiums for malpractice insurance and patients unable to find care.
          The diagnosis offered by doctors, insurers, state legislatures and President Bush: The nation faces a medical malpractice crisis that is driving insurance so high that some doctors are leaving their practices. The causes, they say, are frivolous lawsuits and runaway jury awards.
          Their prescription is tort reform: limits on damages patients can collect for pain and suffering when they persuade a jury that a doctor botched their treatment. Bush is pushing for a federal law that would set a $250,000 cap on damage awards for pain and suffering in states that don't already have caps.
          But a six-week study by USA Today finds that while some doctors in particularly vulnerable specialties -- obstetrics, neurosurgery and some high-risk surgical fields -- face severe problems, most physicians are minimally affected. Premiums are rising rapidly, but no more rapidly than other health care costs. They represent only a small slice of doctors' expenses. Even for the hardest-hit specialists, the most severe problems are concentrated in a handful of states. And recent reminders that doctors sometimes make egregious mistakes may slow the momentum of those who want to limit damage awards.

USA Today, "Putting a face on malpractice insurance debate"

          In the debate swirling around what some call a medical malpractice insurance crisis, the sides are pretty well drawn: doctors, hospitals and insurance companies vs. the trial lawyers. But where do patients fit in?
          Doctors and hospitals say patients will find it increasingly difficult to obtain care if lawmakers do not enact tort reform to stem frivolous lawsuits and escalating payouts.
          Trial lawyers argue that tort reform -- especially a cap on damages for pain and suffering -- will block the only route by which some patients or their families can get compensated for mistakes by incompetent doctors.