Sunday, January 09, 2005


Tommy Denton: So much for facts on tort reform

The Roanoke Times

Beware "judicial hellholes," President Bush warned last week, taking particular aim at Madison County and St. Clair County during his visit to Illinois.

According to the president, roving bands of predatory trial lawyers have been rending the very fabric of the nation by seeking rapacious awards from naive and/or runaway juries, based on "frivolous" and probably malicious grounds. Of particular concern are the consequences of medical malpractice lawsuits, which according to the president, are threatening penury for physicians and bankruptcy for hospitals if the rapacious tort system is not flogged into submission.

In the president's view, Madison and St. Clair counties represent a microcosm of the cancer that gnaws away at all that is good and decent in American society. Why, hang those scurrilous trial lawyers!

All of which has a tendency to stimulate a rush of retributive indignation - except for the existence of actual evidence to the contrary, both in Madison and St. Clair counties and in the nation generally.

At issue is an assault on centuries of evolving common law, the tort system, by which costs of injuries are borne by those who cause them, thus compensating victims and deterring unsafe or negligent conduct.

"Frivolous" as a legal concept tends to expand in relation to liability and threats to the corporate bottom line, especially the insurance industry's bottom line.

Advocates of the president's campaign to "reform" the civil liability system proclaim that the number of lawsuits and severity of jury awards are driving doctors out of business.

To repair that impediment to healthy and profitable enterprise, the revisionists propose to restrict access to the courthouse by limiting the amount of money in a recovery for non-economic damages, generally meaning pain and suffering. The president chose southern Illinois as his model of litigious excess.

As reported by the Belleville (Ill.) News Democrat last July, however, of 720 medical malpractice and wrongful death lawsuits filed in Madison and St. Clair from 1996 to 2003, only 14 cases - 1.9 percent - resulted in jury verdicts. Six of the verdicts favored plaintiffs.

Only one medical malpractice lawsuit in Madison County in the last seven years resulted in a verdict that would have qualified for the $250,000 cap on noneconomic damages proposed by President Bush.

According to watchdog organization Public Citizen, ISMIE Mutual, Illinois' largest malpractice insurer, paid just more than $11 million in claims and defense litigation costs in Madison and St. Clair counties during 2003. That amount represented about 4 percent of $270 million in statewide payouts that year.

The two counties' combined population of about 500,000 constitutes about 4 percent of Illinois' population - accounting for 4 percent of the company's claims. Rough statistical analysis would call that a wash, not the purple rhetoric of crisis.

The News Democrat also pointed out that total dollar value of insurance payouts declined 20.7 percent in Madison County between 2002 and 2003, from $9.2 million to $7.3 million. In St. Clair County, the decline was 26.4 percent, from $10.5 million in 2002 to $7.7 million in 2003.

What about running off the doctors? According to Blue Cross/Blue Shield, Illinois' largest health insurer, network executives told the Chicago Tribune in July they were "not aware of any great flight of physicians because of the malpractice issues. We are basically about where we have been. Even anecdotally, [we are] not hearing any evidence of that."

What about the horror stories of hospitals limiting services, closing doors to patients and abandoning long-planned upgrading and expansions? As reported June 28 in the Alton (Ill.) Telegraph, St. Anthony's Hospital in Alton announced a $28 million addition.

Paid ads in the Edwardsville (Ill.) Intelligencer in June and July announced expansion of the Gateway Medical Center emergency room and addition of new medical equipment and medical staff, including doctors.

Those are just two Midwestern counties illustrating the consequences of radical misrepresentation of fact for political effect.

In the meantime, President Bush remains undeterred in selectively dismissing facts as the basis for his effort to weaken the U.S. legal system. He may be a man of few, not particularly erudite, words, but he seems to have given himself completely to the sage observation of Ronald Reagan, one of his political heroes: "Facts are stupid things."