October 28, 2004
"Tort reform"—which, in the past few years, has primarily meant capping non-economic damages in medical- and product-liability lawsuits—has been a major political football in Mississippi over the past few years, including a huge driver in election-year fundraising and a serious component of our recent race for the governor's mansion. Early this summer, in a special session, tort-reform interests won a $500,000 cap on pain and suffering damages in all medical liability cases, along with in any general business liability case.
The Bush administration believes that tort reform should happen at the federal level, and it has introduced a federal cap of $250,000 of non-economic damages in medical malpractice cases. But it hasn't passed Congress. Instead, tort-reform supporters have focused on individual states, where they've had success placing caps in more than 23 states in the past 15 years.
Just this past week, Bush gave a major address on "strengthening health care" that amounted, primarily, to the need for federal tort reform. Bush returns often to the theme of medical liability reform, saying that lawsuits increases insurance premiums and force doctors to perform "preventative medicine."And, he says, "junk lawsuits" are forcing doctors to curtail their practice or leave the state—he made that argument in Pennsylvania, although it's the same argument that was made in Mississippi as recently as this spring. The logic is that the insurance companies can ask for lower premiums because their costs are lowered. (Bush doesn't mention any other tort reform proposals on his Web site.)
The Congressional Budget Office (CBO) found in a report this summer that the logic of that argument doesn't always play out, however. Non-economic damage caps do lead to increased profits for insurance companies. But they don't always translate to lower premiums, because the insurance companies don't always lower their premiums simply because they're paying less in judgments. And what doctors are complaining about, by and large, are increased premiums. The Bush approach to tort reform has no constraints on insurance companies; it simply seeks to create conditions favorable to the possibility that insurance companies will lower their rates.
It's also worth remembering that successful judgments—those where a jury finds fault—are the cases that pay out. While lowering the non-economic cap might decrease the incentive for attorneys to file "junk" lawsuits, the fact is that any lawsuit has a number of hurdles to overcome before a jury finds that a doctor or institution has been negligent. Kerry has a more specific "tort reform" proposal that—notably—doesn't include caps. Kerry has said that caps are designed primarily to "protect insurance companies, not patients." Instead, his Web site suggests the following reforms: "Eliminate the special privileges that allow insurance companies to fix prices and collude in ways that increase medical malpractice premiums; Require that individuals making medical malpractice claims first go before a qualified medical specialist to make sure a reasonable grievance exists; Require states to ensure the availability of non-binding mediation in all malpractice claims before cases proceed to trial; Support sanctions against plaintiffs and lawyers who bring frivolous medical malpractice claims, including a ‘three strikes and you're out' provision preventing lawyers who file three frivolous cases from bringing another suit for 10 years; Oppose punitive damages—unless intentional misconduct, gross negligence, or reckless indifference to life can be established."
Aside from medical liability tort reform, general liability reform (due to negligence in a variety of circumstances) remains a state issue. In specific cases, such as guns, Rep. Chip Pickering has gone further, voting in 2003 for "tort reform" legislation for gun (and ammunition) manufacturers, importers, trade associations and dealers, protecting them from lawsuits that result when their guns are used in crimes or otherwise misused, or in cases where the industry floods markets with too many weapons. Pickering also voted for the House version of the medical liability reform act.
Democrat Bennie Thompson voted against both of those acts and is generally seen as opposed to tort reform measures, although he has occasionally voted for acts and amendments that tort-reform groups favor. For instance, he voted to limit the liability that teachers are exposed to in reasonable attempts to maintain classroom order and he voted for a prohibition that keeps attorneys from making unwanted calls to victims' families after an accident. Overall, though, he is rated in the 10-20 percentile by such groups.
Clinton B. LeSueur, Thompson's GOP opponent, hasn't yet voted and doesn't discuss tort reform on his Web site; in 2004, he was asked by the National Association of Manufacturers if he would support the Class Action Fairness Act, an asbestos "trust fund" settlement and gun manufacturer tort reform legislation; he responded "yes" to all three.
Tort reform is an issue in judicial races, largely because pro-business interests and journalists such as The Clarion-Ledger's Sid Salter push the idea that any candidate, such as incumbent Justice James Graves, who receives campaign contributions from a plaintiff's attorney, is somehow tainted, regardless of their actual decision. The same scrutiny is seldom applied to judicial candidates who receive funds from big business interests, even as some of them openly say they will use the bench to assist business with more tort reform.