Although it made only a small blip in the news radar, last week’s ruling by the Illinois Supreme Court that overturned a 2005 medical "tort reform" law may, down the road, prove to be a big deal. There are similar challenges to "tort reform" acts under review by the supreme courts of several other states. And if Illinois turns out to be a harbinger instead of an outlier, these challenges might not only impact the nation’s debate on health care reform; it also could bust one of the most successful scams ever put over on the American public.
In recent years one state legislature after another has been stampeded into passing "tort reform" laws to protect industries in those states from personal injury liability. Most of the "sales force" is made up of industry-funded astroturf groups that often are connected to the American Tort Reform Association. According to Sourcewatch, ATRA is "a coalition of medical professional associations and various industry groups — such as from the chemical, tobacco and drug industries — promoting changes to U.S legislation to limit corporate and professional liability for damage caused by their products and services."
The "tort reform" movement was begun in the late 1980s by the tobacco industry, which was facing massive lawsuits for diseases caused by its products. It was soon joined by other industries, such as asbestos manufacturers being sued by mesothelioma victims, and by the American Medical Association. Finally, political operatives such as Karl Rove identified "tort reform" as an ideal wedge issue for Republicans.
Here’s how the scam works — state legislators are sold on the fiction — and it mostly is a fiction — that their states are in crisis. They are told their states’ courthouses are swamped with frivolous lawsuits, and this is killing their states’ economies. Businesses and jobs are drying up; doctors are fleeing the state because of the outrageous cost of malpractice liability insurance. The state lawmakers are whipped into a frenzy of alarm and think something must be done right away.
And the one and only remedy to the crisis anyone has handy is "tort reform." There are several different reform provisions favored by the astroturfers, some of which make filing a lawsuit more burdensome for plaintiffs. Most state tort "reforms" also limit the amount of damages a successful plaintiff might receive. As of now, only 15 states have not imposed some kind of cap on damages.
It’s this second kind of reform, caps on damages, that drew the disapproval of the Illinois court. The Illinois court said that placing an arbitrary limit on court judgments is a violation of the state constitution’s separation of powers, because the law imposed the will of the legislature on matters that should be decided by courts.
Right now the supreme courts of Missouri, Georgia, and Mississppi are considering separation of powers challenges to their states’ tort laws. Last year the Arkansas Supreme Court struck down a portion of the state’s tort law for the same reason. In each of these cases plaintiffs have argued that the legislature has no constitutional right to tie the hands of courts by capping damage awards. There are some other similarities in these constitutional challenges as well.
In each of these five states, the law being challenged was enacted sometime between 2003 and 2005. In each state, ATRA and its network of "astroturf" organizations persuaded state lawmakers that their states were judicial "hellholes" driving doctors, insurers and employers out of their states. And the same traveling medicine show has been traveling to other state legislatures, selling the same snake oil. Tort reform creates jobs! It lowers health care costs! It will attract more physicians to practice in your state!
If you listen to ATRA, it seems that so many doctors were being driven out of so many states that one wonders where they were all going. But, according to the American Medical Association’s "Physician Characteristics and Distribution" data, the stories about doctors stampeding off to who knows where are, um, false. There is no clear pattern of doctors moving from one state to another because of malpractice law.
Further, in these states stories about a litigation "crisis" were wildly overblown. In fact, a key part of the constitutional challenge in Missouri is that the law was crafted based on a false assumption — that out-of-control lawsuits had created a “crisis” that was driving health care costs up and doctors out of the state. The legislature believed it had to write the law to respond to the crisis.
However, the truth is that the number of medical malpractice lawsuits in the Missouri long had been in decline when the law was enacted. There was no "crisis." Many states that have reformed tort see a reduction in the rate of malpractice and other personal liability litigation, but the rate of medical malpractice suits is down just about everywhere in the U.S., "tort reformed" or not. And in fact, adjusted for inflation, the rate of medical malpractice insurance premiums are at close to a 30-year low.
Further, in state after state, none of the other anticipated benefits of tort reform can be shown, without a doubt, to have materialized. Tort reformers generate data claiming every new job or new business in a "tort reformed" state is the direct result of the reform, but a comparison of economies in "reformed" and "not reformed" states shows no clear advantage for reform.
Possibly the phoniest claim of all is that tort reform lowers health care costs. If you closely monitor the nation’s health care reform debate, you’re aware that conservatives are in love with the idea that reforming tort will bring about an immediate, and dramatic, decrease in health care costs. But in not one state that has reformed its tort laws have these savings ever materialized, including the alleged savings in decreased "defensive medicine." Changing tort law doesn’t even slow down the growth rate of health care costs.
Yes, the Congressional Budget Office said last year that federal tort reform would save the federal budget $54 billion over ten years. But on page 4 of the same analysis, the CBO admitted that because so many states already have "reformed" tort, "a significant fraction of the potential cost savings has already been realized.” On pages 2 and 3, it admits that reducing the cost of medical malpractice liability by 10 percent would reduce total national health care expenditures by a whopping 0.2 percent.
And in contrast to the $54 billion over ten years, a recent PricewaterhouseCoopers study said that $210 billion of our health care dollars are wasted every year in the U.S. on paperwork.
Back to the damage caps — there are several different kinds of damages a plaintiff might be awarded. One type the tort reformers nearly always cap is called "noneconomic" damages, sometimes referred to as "pain and suffering" damages. Such awards have been made to sound ridiculous; why should somebody get paid for being in pain?
Explanation Under most state tort law, "economic" damages are those that can be documented at the time of the trial, such as with bills and receipts. But when an injury causes long-term or permanent disability, the injured person faces a lifetime of increased expense and probably lost income as well, and there is no way to document what those costs will be. Thus, "noneconomic" damages are not just "jackpots" but are intended to compensate injured people for real future costs.
The test case heard by the Illinois court involved Abigaile LeBron, now 4 years old, who allegedly was brain damaged at birth because of medical negligence. Abigaile’s parents sued a doctor and the hospital. The suit has not yet been resolved. But the Illinois law would have capped the noneconomic damages Abigaille might receive at $500,000 from a doctor and $1 million from a hospital. That might sound like a lot of money, but consider the lifelong needs of an individual whose brain damage is so profound she will never be able even to feed herself.
In the "tort reform" case now being reviewed in Georgia, a lower court judge argued that damage caps
“Of those injured by health care providers, there are two classification of victims – those who are most severely injured and, consequently, suffer the most pain and suffering, and those who are less severely injured.
“The cap’s greatest impact falls on those who are most severely injured, and creates classes of fully compensated victims and those only partially compensated. … In effect, the legislature has shifted the economic burden of medical malpractice insurance costs from the insurance companies and health care providers, including those negligent providers, to a small group of injured patients.”
It’s past time to call bullshit on the "tort reform" scam.



8 Comments







This is wrong-headed. A good cover up. These politicians have not done their jobs of regulating and enforcing laws against the fraud, corruption and profiteering of big business in bed with government. This is the wrong conversation. What is needed to bring down costs? Cap their profits. Their costs always escalate and it is used to bribe us every time and provide false reason for politicians. Protect Americans from destructive and grievous harm. Make ours a better society for a change! Thats the real reason for good government isn’t it?
Rant.. It is important to reserve your rights to a courtroom with a jury of your peers- over anything! Absolutely. No corporation or politician has a right to cap your damage-or claim immunity for their hurtful actions- nor should the government have immunity over anything either. Many want to take away our rights to redress their wrongs. No one caps their profits- yet! Judges are political and can be corrupt too. Jury of peers is essential- never buy the “they won’t understand-its too complex rational.” And those subversions of your rights by contract- those ARBITRATION ” agreements” that are a foregone conclusion behind closed doors? Never. They are arranged for a reason.
Be aware that attorneys are not all dedicated to service- many are corrupt for politics and a buck. Employ a good one. They have the ability to make life hell for a client.. over-bill you, place liens when you complain. They utilize their “officers of the court” privileges and can push clients around who have half a brain to challenge them. And discipline? Well thats just it. They self-regulate. Bar associations stand in when it is an ethical issue and review client complaints. A club- they honor/protect their own. Restitution is a joke. Get an ethical attorney who will bill you fairly. Or represent yourself- its politics, watch out. Still, a courtroom with peers is your only chance against corporate wrongdoing. Its your opportunity to be made whole from their damage.
Another brilliant idea from the American business class, “tort reform.”
Perhaps if they had done this earlier, we could still driving Pintos.
Or, be eating food that has ground up plastic in it.
Bring back the good old days.
Thanks for this post. highly rec’d.
Although there are abuses in the legal system, for sure, this issue of “tort reform” is just cover for big business to avoid paying what they owe for bad business practices. It’s another piece of red meat tossed out to the teabagger base to make them think they’re actually “doing something” real to solve problems. It’s bogus.
Teabaggers whined about the need for tort reform in the HC debate. That is such an insignificant issue in terms of the costs for health care that it’s laughable. And all teabaggers are doing is, per usual, “voting” against their own interests. Their annoying but willful insistence on not really investigating the issues continues apace. The rightwing base has much to answer for pushing forward what is actually a corporate agenda that in no way benefits the “common folks.”
Good article. Read it and weep.
Is federal tort reform even constitutional? You know, the 10th Amendment thing the right keeps going on about. It seems to me that to do federal tort reform (at least med mal reform) requires a very brooooad construction of the interstate commerce clause or some other part of the U.S. Constitution.
Teabaggers=rebels with little cause.
I’m not a lawyer, but I understand that some aspects of the federal tort reform some Republicans want could amount to federal takeover of state jurisdiction.
“why should somebody get paid for being in pain?”
The tort “reformers” forget what civil damages originally replaced: blood vengeance. As Wikipedia tells us:
“The payment of weregild [monetary compensation] was an important legal mechanism in early Germanic society; the other common form of legal reparation at this time was blood revenge. The payment was typically made to the family…”
Remember the Biblical eye for an eye and tooth for a tooth? The concept behind awards for things like wrongful death and pain and suffering is that the defendant gets to symbolically and economically make good on something that he can never, ever make truly right without real, personal death, pain, and suffering. iven the choice, our ancestors overwhelmingly preferred to use cash instead of their own blood and bone, thus giving rise to our modern system.
The individuals and groups who enjoy the privilege of paying money to settle up for the wrongs they have done forget that they are getting off easy, in historical terms. Afterall, many members of families like the LeBrons would prefer to seek compensation for a child’s brain injury with baseball bats in the old brain for a brain mode.
If anyone can read the Constitution they would see that the right to tort is guaranteed us in that document.
So these laws should be and really are against the Constitution, and yet the people pushing this are the Republicans who tell you they want to go back to the Constitution all while breaking every right and rule it lays down for us.
Just the thought that You can be injured by some person or business and the law or some judge can tell You what you can recieve in damages is against everything this Country stands for.
Yet many people are echoing the Republicans call for Tort Reform, being so ignorant that they don’t realize they are asking to give up one of their basic rights.
Evil will prevail if people are to ignorant to know evil for what it is.