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New York Post

 

Tort-Bar Treat

November 03, 2009

By James R. Copland

In his Sept. 9 address before Congress, President Obama noted that litigation “may be contributing” to increasing health-care costs and promised to fund “demonstration projects” in the states to improve the liability system and to test “ideas about how to put patient safety first.”

Alas, as House Speaker Nancy Pelosi’s health-care bill emerged last week, it became clear that Congress’ leaders are less interested in funding demonstration projects that work than in keeping cash flowing from trial lawyers to the Democratic Party.

Section 2351 of the Pelosi bill outlines incentive grants to the states to fund “medical liability alternative” demonstrations along the lines Obama suggested. But the grants would come with strings: The projects could not in any way “limit attorneys’ fees or impose caps on damages.”

The bill would not (as some have mis-reported) require states to repeal existing tort-reform laws to get incentive grants. Rather, it would use taxpayer dollars to discourage states from adopting damage caps or fee limits.

That is, the bill only pays for “demonstration projects” that don’t use the most common ways to limit the abuse of medical-malpractice lawsuits -- reforms that have worked elsewhere.

Serious analysts today agree that such reforms have lowered costs. Empirical studies have also shown that they’ve increased access to doctors and saved lives.

After a review of emerging evidence, the nonpartisan Congressional Budget Office last month dropped its old claim that tort reforms generate “very little” cost savings. Instead, the CBO found that nationwide adoption of tort reforms would save $54 billion in government health-care outlays over the next decade.

If anything, that understates the savings. The CBO implausibly found that more savings would come from lowered liability premiums for doctors and less from reducing wasteful “defensive” medical practices -- even though most statistical studies find the latter savings to be far more significant.

Still, there’s reason to go beyond the “traditional” tort reforms: Even where damage caps exist, doctors are still subjected to abusive lawsuits that cost too much and take too long; juries in complex medical cases are still likely to get the answer wrong as often as they get it right.

Thus, medical researchers at Harvard and lawyers like Covington and Burling’s Philip Howard (who heads the legal-reform group Common Good) have called for even more radical reform. Howard calls for a system of specialized health courts -- akin to existing special courts that handle tax, bankruptcy and divorce cases -- to dramatically improve the way the legal system handles medical-error claims.

Unfortunately, Pelosi ignores such innovative ideas. The only medical-liability reforms her bill funds are “certificate of merit” and “early offer.”

Certificate-of-merit rules require lawyers, before suing, to get a medical expert’s affidavit attesting to the plausibility of the claim. Strong forms of such laws can weed out ill-founded suits, but many laws do little -- since lawyers must ultimately get an expert witness to make their case plausible at trial, anyway. Thus, this reform is typically the preferred solution of trial lawyers.

Early-offer rules are designed to promote early and fair settlement of valid claims. The Manhattan Institute, as have many noted legal academics, has been promoting them for at least 15 years. To be effective, however, early-offer rules must be paired with other reforms that Pelosi’s bill won’t permit -- limits on contingency fees or damages.

(For example, the rules must prevent lawyers from collecting added fees if the plaintiff goes to trial but fails to win as much as was in the early offer, or eliminate pain-and-suffering awards if the plaintiff was given an expiditious offer of full economic damages).

So it’s hard not to conclude that Pelosi’s liability-reform provisions are little more than window dressing -- more designed to protect trial-lawyer profits than to reduce lawsuit abuse.

The trial lawyers’ political-action committee was the second-largest donor to Democratic congressional candidates in the last election cycle, and lawyers gave more money to congressional campaigns than did doctors, pharmaceutical companies, HMOs and nursing homes -- combined. That largesse would appear to be money well spent.

Original Source: http://www.nypost.com/p/news/opinion/opedcolumnists/tort_bar_treat_Kb8jMhb5G80qFJmdJYvsDP

 

 
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