Legal
Analyst Undercuts Tort Reform Debate
In a lead up to the presidents State of
the Union Address on CNNs Paula Zahn Now, legal analyst Jeffrey
Toobin undercut the whole concept of tort reform. Toobin used the
stories of a family physician who couldnt afford to deliver babies
and a little girl plagued by an emergency C-section to frame the
debate surrounding medical malpractice reform that Bush later
discussed. Toobin then blamed everyone from insurance providers to
bad doctors for rising costs and left out the most obvious
culprits entirely lawyers.
Its no secret that medical malpractice premiums are on
the rise. According to the American Medical Association, 20 states
with more than half the nations population face a full-blown
crisis. Toobin talked about a family practitioner in New Jersey who
quit delivering babies because his malpractice premiums would cost
approximately $60,000. Toobin explained the situation: But keep in
mind one thing. You had all those premiums going up. You have tort
reform, which is supposed to keep the damage awards down. The people
who are making money off the system are the insurance companies. And
theyre sort of the invisible profiteers here. Theyre the ones who
are making money.
Really, we dont have tort reform, despite Toobins
claim. That was the whole point Bush was making. Uniform
medical-malpractice reform hasnt yet passed Congress and New Jersey
hasnt mandated caps on pain and suffering awards. In fact, New
Jersey is among the AMA states in full blown crisis.
Obviously, insurance companies are making money off the
current litigation environment. However, in many cases theyre
losing more than theyre taking in. In 2002, the St. Paul Insurance
Company pulled its medical malpractice coverage after losing $1
billion in medical malpractice losses in 2001. The company was the
nations largest malpractice carrier for two decades.
Toobins attack on tort reform didnt end with his
initial assault. He dismissed the whole concept of unnecessary
suits: You know, there are a lot of urban legends about these
frivolous lawsuits. In fact, frivolous lawsuits almost invariably
fail. Toobin should have mentioned that not all frivolous lawsuits
go to trial. Many of them are settled out of court in order to
minimize costs to doctors and their insurers.
According to Dr. Richard Anderson, CEO of the Doctors
Company, in the June 14, 2004 edition of Archives of Internal
Medicine, approximately 70 percent of all these claims are closed
with no payment to the plaintiff, but each one costs an average of
$22,967 to defend, adding an enormous expense that must be
calculated into the cost of insurance. Dr. Anderson concluded,
Though most claims are found to be without merit, the cost of
defense in actual dollars, as well as stress and distraction, is
very high.
Then, Toobin blamed doctors for rising malpractice
costs: One of the reasons the malpractice explosion has taken
place is that the medical profession is very poor at policing its
own members. A lot of malpractice lawsuits are generated by the same
doctors Because theres no good internal mechanism for policing the
medical profession, its the legal system that winds up doing it,
the tort system.
Dr. Anderson saw things differently, There is scant
relationship between malpractice litigation and physician
negligence. The Harvard Medical Practice Study found only degree of
injury to be correlated with the outcome of malpractice litigation.
This strongly suggests that our system of medical-legal
jurisprudence does not identify bad physicians. The tort system
is designed to redress wrongs, not police an industry.
After telling the story of a little girls medical
complications from birth, Toobin continued: The problem is, under
the definitions of economic damages in most states, its really not
very much money. So, thats where the pain and suffering comes in.
Thats where juries sort of apply rough justice, juries say, look,
this is so awful. And imagine an injury like this to a child that is
so preventable.
Toobins law degree isnt a medical license. Its not
his role to decide whether her injury was medically preventable.
Because the suit was settled before trial, that question was never
put to a jury. Whether economic damages in most states allow for
enough money is a matter of Toobins opinion, as well. Those damages
depend on the nature of the case and are calculated based on values
of lost wages, healthcare costs and other factors.
But deciding if economic damages are adequate isnt a
key part of the tort reform debate. The issue is whether juries
should be allowed to apply tough justice that punishes doctors who
havent done anything wrong with high malpractice premiums.
Toobins conclusion showed his idea of the best
compromise would be raising economic damages to lower them in other
areas or no real reform at all. He said it would be easy to:
expand the notion of economic damages to something that is
realistic, that really could support Lily for the rest of her life,
then you could have a cap on pain and suffering, because then it
would not really be necessary. But you have got to have a realistic
definition of economic damages or else youre never going to get rid
of pain and suffering.
All that would accomplish is raising the costs for
economic damages while lowering damages for pain and suffering.
Considering, Toobin thinks frivolous lawsuits are urban legends,
it is unsurprising he would suggest a reform that would accomplish
absolutely nothing.