Taking on Trial Lawyers

How should I feel that a key Senate shepherd of monumental Democratic health care legislation recommended his girlfriend for a top job at the U.S. Department of Justice?

Perhaps I’m already jaded that the 68-year-old senior Senator from Montana has a live-in girlfriend or that he divorced his wife of 26 years shortly before he and his girlfriend itemized.

Regardless, it doesn’t make me confident in Max Baucus’ ability to craft historic legislation impartially. If he recommends girlfriends for jobs without disclosure, does he also give preferential status to industry players sympathetic to his campaign coffers?

Take trial lawyers, for example. Of the winners in the health care reform process to date, they must be near the top.

Besides a toothless measure in the House version to promote incremental malpractice system reform (the measure prohibits limits on jury awards and attorney fees), no significant tort reform can be found in the current bills. This, when the President himself acknowledged the need for reform in his September speech to Congress.

Baucus even once floated the idea of special health courts designed to resolve medical claims more efficiently and cheaply. The President and other Democrats like Senator Baucus may believe in the need to limit lawsuits from driving up medical costs, but their faith thus far hasn’t surpassed their fear of the plaintiffs’ bar.

Former Democratic National Committee Chairman Howard Dean put it bluntly, “The reason that tort reform is not in the bill is because the people who wrote it did not want to take on the trial lawyers…” And why? Because the trial lawyers give big money to Democrats, big money they earn, no, get, from going after those with deep pockets, such as doctors.

Texas is proof positive that lawsuit reform works. In 2003, the Republican-controlled Texas Legislature passed monetary caps on the amount of non-quantifiable, punitive damages (e.g., pain and suffering) that a medical provider should have to pay in a medical malpractice lawsuit.

Since then, according to the Texas Board of Medical Examiners, the volume of malpractice lawsuits has dropped, as have direct liability insurance costs. A less quantifiable, but no less real number is the amount of indirect costs saved: the tests and treatments physicians would otherwise order to protect themselves from lawsuits, a process loosely called CYA (cover your analysis).

Lawsuit reform has increased the number of doctors in Texas and the newcomers haven’t been rogue residents from America’s backwoods. The Texas Association for Patient Access (TAPA) asserts that less than one-half of one percent of the 16,000 doctors who have relocated to Texas since 2003 have been subject to disciplinary action.

Prior to 2003, OB-GYNs were less common in the Rio Grande Valley than snowfall. Today, according to TAPA, there’s not a single OB opening in any of Christus Health Care System’s South Texas clinics.

The Democrats should not fear betraying the plaintiffs’ attorneys now. The socialized health care system they are leading us toward will betray them soon enough. Once the wealth in doctors’ so-called deep pockets gets spread around and medicine becomes just another moderately paying bureaucratic service, the lawyers will have little left to sue.

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