The Bogus Tort-Reform Case

It's easy to see why Karl Rove is eager to keep war and terrorism front and center. The economy remains sluggish, the Bush plan to cut taxes while waging war is embarrassing even some Republicans, and the case on another domestic priority, tort reform, is faltering.

The president scores political points when he rails against trial lawyers and the litigation explosion, especially medical malpractice; it's the particulars that create trouble. The latest illustration is the tragic story of the 17-year-old Mexican girl who died last month after being given a heart and lung transplant from a donor with an incompatible blood type.

Mr. Bush and congressional Republican leaders want to cap malpractice awards for pain and suffering, the chief damages this family could receive. Would they really limit this impoverished family to $250,000? GOP lawmakers like Sen. Orrin Hatch, already are backtracking, suggesting perhaps there could be some elusive exception.

Then there's Democratic presidential aspirant -- and former trial lawyer -- Sen. John Edwards, who Republican operatives envisioned as a pin-up poster for greedy trial lawyers. The president trekked to North Carolina last year to assail what he calls a legal lottery that pads the pockets of the plaintiffs bar.

The backdrop was his Health and Human Services Agency report that specifically targeted a case for which Mr. Edwards was the lawyer. Bailey Griffin was born severely brain-damaged as result of a negligent obstetrician; she was confined to a wheelchair, had no bowel control and had to be fed through a tube. She died at age six. A multimillion dollar jury verdict was labeled excessive, the sort that contributed to rising health-care costs.

Did the Griffins hit the jackpot? The little girl's father had an answer for the president: "Every time I go to my daughter's grave, it's hard to feel that way."

The tort reformers of course have their old standbys, none more popular than the McDonald's case in which a woman won a verdict because she spilled hot coffee on herself. What they neglect to say is the woman suffered third degree burns so severe that 16% of her body was permanently scarred; the company had ignored 700 burn complaints and warnings that its coffee was served at 50 degrees higher than desirable.

There are, of course, abuses in the legal system, and yes, some changes are needed. But the White House egregiously distorts the case. An impressive six-week study by USA Today, published this week, found that while some doctors have been hit hard by rising malpractice premiums, most "are minimally affected." Premiums aren't rising any more rapidly than other health-care costs and, on average, physicians spend more on rent than malpractice insurance.

In the big class-action suits, especially as pertains to future claims, some federal action is essential. But on product liability and medical malpractice, what the current advocates desire is not real tort reform but to immunize powerful interests from the consequences of irresponsible civil behavior. They would create a caste system for litigation: Those with resources would have easy access, those without would not.

There are sleazy, greedy trial lawyers, just as there are sleazy, greedy corporate CEOs; in both cases, they are in a minority. Trial lawyers' political donations unduly influence too many Democrats, just as insurance and tobacco money unduly influences too many Republicans.

If you want to understand the president's underlying motives, read the new book on his guru, Karl Rove, "Bush's Brain." Penned by two crack Texas reporters, it discloses that in 1994 Mr. Rove, a hired gun for Philip Morris, persuaded the gubernatorial candidate George W. Bush to make tort reform a priority. The tobacco lobby, seeking immunity from its killing fields, was delighted. (Mr. Rove, according to the book, later dissembled, under oath, on his role here.)

Malpractice litigation is only part of the cause of the huge increase in insurance premiums. The insurance industry's pricing and accounting practices, as this newspaper painstakingly revealed last June, plays a big a role. So does the failure of too many state medical boards to discipline serial medical offenders -- and the failure to require full disclosure -- of such behavior.

Two favorite whipping boys for the president and his allies are frivolous lawsuits and contingency fees, where trial lawyers take a case for no fee but a guaranteed piece of any action, usually ranging between 20% and 40% of a final judgment. Yet contingency fees not only enable those without means to get legal representation but actually discourage frivolous lawsuits: Why sue frivolously if you only get paid if you win?

Proponents of genuine reform reject the hysteria and hyperbole of the special-interest lobby. "There are some significant dislocations of some elements of the medical profession," notes Duke University law professor Tom Metzloff. "But the system is not bankrupt; most of the time it reaches sensible interests." Professor Metzloff would like to eliminate punitive damages, which rarely materialize, but not limit awards for pain and suffering, often very real. Too much of the cost of litigation is transactional -- increasingly expensive expert witnesses as well as legal fees -- and the Duke law professor thinks a sliding scale for lawyer's fees, like California adopted years ago, is meritorious as long as it is set high enough that plaintiffs without means can still be heard. In California, some lower-income victims have been shut out of legal redress.

But George Bush and his allies propose ill-advised tort reforms that would hurt innocent victims and are outrageously hypocritical. Some self-styled conservatives talk about federalizing tort cases simply because that venue would be friendlier; others want to take cases away from sympathetic juries. They fail, as Houston attorney and devout Republican Andrew McKinney notes, to "offer a rational explanation of why juries are OK to take a man's life on the criminal side but are not competent to put a dollar value on an innocent victim's life on the civil side."

Updated March 6, 2003