In haste to cap damages, don't forget real victims

LAWSUIT LIMITS: In haste to cap damages, don't forget real victims

February 28, 2005

To hear President George W. Bush tell it, the only losers in legislation to discourage class actions would be ridiculously rich trial lawyers.

The truth is a lot more complicated, and Bush should not be allowed to frame the coming debate on medical malpractice awards with the same kind of hyperbole.

In the new shift of large class actions from state courts to the overburdened -- and more restrictive -- federal system, Bush and Congress will delay and reduce access to the legal system for large numbers of people who may have been affected by a bad product or policy.

To be sure, some lawyers have cashed in on class actions, but the system also has held mighty industries accountable and produced changes in dangerous products or practices.

Bush effectively ignored those victories for consumers and focused on jackpot juries and greedy plaintiffs and attorneys.

"Lawyers are being treated as pariahs as people lose access to the courts to right mass wrongs," said Detroit attorney Peter Macuga.

Next up for Bush are proposals to curb medical malpractice awards and end asbestos litigation by moving claims out of the courts and into a multibillion dollar trust fund.

The asbestos idea has merit. Damage claims over the cancer-causing substance have driven many companies to bankruptcy, with some dragged into the issue only through a merger or acquisition. A trust fund would provide some certainty and timeliness for plaintiffs and companies. Clogged courts have failed to get help fast enough to sick and dying victims. A trust fund that could release money without litigation could help, if it were adequately funded and the caps on awards were fair.

But Congress should reject Bush's last tort reform idea -- sharply limiting malpractice awards. Insurance companies and doctors are pushing for a $250,000 cap on noneconomic damages. That's too low for some victims. One Wisconsin woman, for example, had both breasts removed after laboratory tests mistakenly indicated cancer. Other people have lost the ability to work for life.

Medical errors, through incompetence or human failings, are a bigger problem than malpractice awards or insurance premiums. In the coming debate, Congress should not let Bush forget the real victims.