'Trial Lawyers Inc.' Is a Plague to All, Some Say

[Guest guest]

http://www.nysun.com/article/28158?page_no=1 How seriously can you take a law firm that invites the Hispanic community to call 1-888-MARGARITA? The Manhattan Institute takes the firm, Trolman, Glaser and Lichtman, and others like it that specialize in medical malpractice suits, very seriously indeed. It views the collective efforts of such firms, which it calls "Trial Lawyers, Inc.," as a plague upon our house, responsible for hiking health care costs, depriving communities of essential specialists such as obstetricians, rendering health insurance scarcer and more costly, and "interfering with the democratic process." A panel of speakers at the Harvard Club this week put meat on the bones of these allegations. Invited to speak by Copland, head of the Manhattan Institute's Center for Legal Policy, were Donahue, chairman of the U.S. Chamber of Commerce,

Krauss, a law professor at Mason University, and Troy, former chief counsel of the Food and Drug Administration. Mr. Copland led off by presenting a sobering new study that details the impact of runaway juries on health care expenditures. The message? That frivolous and non-science based lawsuits were a major contributor to rising health care costs and that the real costs go far beyond monies paid out in settlements or insurance premiums. According to Mr. Copland, medical malpractice tort costs rose 12% a year between 1975 and 2003, or four times the rise in overall medical outlays. Medical malpractice liability costs in 2003 were $26 billion a year, 2,000% above the 1975 level. While the rising cost of health care mirrors an improved product, apparent in our longer life spans and better quality of life, it also reflects a huge incremental tort burden which siphons monies away from drug producers, hospitals,

and doctors, and results in a serious crimping of our health care establishment. Needless to say, not everyone agrees with this assessment. The head of the Center for Justice and Democracy, Joanne Dorashow, maintains that higher insurance premiums spring from cyclical factors, and that any sort of tort reform would deprive the right of the injured to seek redress. She maintains, further, that the ability of consumers and patients to sue in court represents market forces at work, and should be applauded by political conservatives. Many who were at the Manhattan Institute gathering would no doubt claim that political persuasion, but appeared to agree with Mr. Copland's assertion that liability lawsuits have simply gone too far. He maintains that the negative fallout includes an increasing reluctance of doctors and pharmacists to prescribe drugs because of fear of possible lawsuits, increased hesitation on the part of patients to take drugs, the

disappearance of doctors from states with large malpractice awards and premiums, and the loss of specialists in those areas where awards have been most common, such as obstetrics and neurology. Mr. Troy added that malpractice suits tend to skew research and development dollars toward products aimed at people with life-threatening diseases. These patients typically do not provide great prospects for trial lawyers, who prefer to target drugs taken by large classes of people over many years. According to Mr. Troy, numerous drugs which might treat diabetes or pregnancy symptoms such as morning sickness are simply too vulnerable to lawsuits and thus are not pursued by drug manufacturers. Mr. Troy also reviewed the sad story of vaccine production in America, where a once-thriving industry was felled by lawsuits. (Ms. Dorashow cites a study which refutes this conclusion.) Though Congress finally intervened to protect vaccine

production, lawyers are now pursuing the industry because of the presence of mercury in some vaccines. Though there has been no medical proof that the type of mercury in these solutions is harmful, settlements have proliferated, much to the annoyance of the FDA. (?????) Mr. Troy agreed that patients are being "overwarned" about the possible side effects of drugs, which can dissuade some from taking important medications. Labels are increasingly being written by lawyers rather than doctors, and become less useful (and less comprehensible) as a result. Mr. Krauss cited figures which show that there has been an increase in "mammoth" claims, which push insurance companies to settle rather than go to court for fear that a jury will hand down a giant penalty. Overall, settlements are on average more than $1 million. In medical school today, according to Mr. Krauss, students are being taught to refer patients to specialists,

rather than risk a lawsuit by offering treatment. Further, the litigious climate is dissuading students from pursuing careers in specialties like obstetrics and neurology, because of the huge cost of malpractice insurance in those fields. What does this trial-happy industry mean to you? Among other things, soaring health care costs is a major burden on small businesses. The success of small businesses, which provide more than 65% of net new jobs, is crucial to the growth of the American economy. If indeed litigation is a major factor in rising medical expenses, the government may find increasing support for tort reform. The Chamber of Commerce, representing millions of employers, is actively working to cut down on frivolous lawsuits. The Chamber has identified 20 states that are in crisis, where liability costs or an inability to secure liability insurance has pushed doctors out and caused hospitals to eliminate certain services. The Chamber is championing

legislation that would cap damages. It is also pushing companies to resist the urge to settle, even though the trial lawyers have the capability of putting companies through interminable "discovery." The Bush administration is pushing tort reform, but measures to rein in Trial Lawyers, Inc. runs into opposition from candidates generously supported by the group. Campaign contributions by lawyers and law firms led all industries in the most recent federal elections; 93% of the PAC contributions made by the Association of Trial Lawyers went to Democratic candidates. Is it any wonder that not a single Democrat voted in favor of the tort reform bill proposed by President Bush during 2005?

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