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comments by attorneys and staff at
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‘Tort Reform’ & H.R.5: Insurance Company Profits > You

In his short story, The Generous Gambler, Charles Baudelaire wrote that the greatest trick the devil ever pulled was in convincing the world he didn’t exist.  If you are a movie buff, you remember this line was famously spoken by Kevin Spacey in 1995. The idea is, in my interpretation, that if we are not conscious of the forces working against us, we are particularly susceptible to being manipulated by those who possess a malicious intent.  Unfortunately for all of us, these words are no more applicable anywhere than they are with regard to insurance companies, and possibly even more insidiously, the individuals who do their bidding.  

On March 22, 2012, H.R.5,  was approved by the United States House of Representatives. H.R.5, sponsored by Rep. Phil Gingrey of Georgia, works to drastically and artificially limit the amount of compensation that is available to victims of medical negligence. Rep. Gingrey, whose list of top donors include Aflac, Astra Zeneca, American Insurance Marketing, Pfizer and Lockheed Martin, has crafted a bill that would, among other things, cap non-economic damages (think pain and suffering, disfigurement, loss of enjoyment of life, etc.) at a maximum of $250,000, make it impossible for victims of reckless conduct to recover punitive damages and make it much more difficult for an injured individual to collect any judgment they were lucky enough to receive. 

In pushing this legislation, Rep. Gingrey, along with 216 House Republicans and 7 House Democrats, has taken a step toward stripping rights away from individuals who have been injured in the name of increasing profits for corporate America.  Insurance companies have long sought to insulate themselves in whatever way they could from ever having to pay their insureds the recoveries guaranteed by their premiums, and in the Representatives that voted ‘Aye’ on H.R.5, the insurance companies have found 223 allies.  Not surprisingly, H.R.5, like all ‘tort reform’ measures, is based on flawed research, inconsistent logic and half-truths.

The argument that has been made time and time again by the proponents of tort reform, is that by enacting measures that limit recovery for those who have been hurt, medical malpractice insurance premiums paid by doctors will come down, resulting in significantly lower health care costs for everyone.  This argument doesn’t fly.  Health care costs, and I feel like I need a drum roll here, are negligibly related, if at all, to medical malpractice lawsuits and the recoveries paid out by insurance companies pursuant to such suits.

The tort reformers want us all to believe that lower health care costs are as easy as capping the amount of damages available to those injured by the negligence of others.  In reality, healthcare costs are so astronomical in this country because of the high cost of prescription drugs, the high demand for state of the art medical technology and an aging population that lives longer, consumes more medical care and suffers from a growing incidence of chronic disease.  Politicians who take money from pharmaceutical, medical device and insurance companies can’t attribute the high cost of healthcare to prescription drugs, the countless chronic diseases those drugs are prescribed to treat or the machines built to diagnose the ailments – if they did the donations would stop.  Instead, ‘abuse of the legal system’ is decried as the sole culprit, and the profits roll in (over 3 billion for Prudential in 2011, almost 3 billion for Met Life, e.g.).   

The unfortunate truth when it comes to tort reform measures, is that when access to the civil justice system is abridged, severely injured individuals lose the only option they have for obtaining the justice they deserve.  Here is an example of  what we will have to get used to if Rep. Gingrey’s Bill becomes the law of the land: a thirty year old mother of three goes in for routine surgery; the surgeon makes a catastrophic negligent error that leads to the mother’s cardiac arrest and ultimate death; the three children and their father, at most, are entitled to $250,000 for the death of their mother.  By some estimates, fifteen years from now, $250,000 is not going to be enough to pay for one college education, much less three.

But this is not where the devastation of H.R.5 stops.  Not only will injured victims be unable to be made whole, but by putting into place these artificial and extraordinarily low limits on recovery, the ‘reformers’ are ostensibly removing the deterrent effect that civil litigation has on (1) doctors with regard to the care they take in their practice; and (2) insurance companies that are only motivated to act with regard to medical standards of care when it affects their bottom line.  This isn’t what we refer to in the legal community as “bad law”, it’s in actuality the worst type of law – the kind that punishes those who have done nothing wrong while insulating the wrongdoers from ever being held fully accountable.  

By allowing insurance companies and lobbyists to direct the dialogue regarding health care costs and insurance premiums, we are effectively listening to state run media extol the virtues of the leader.  Everyone, both individual and corporation, is self-interested, so while it’s not at all surprising insurance companies are looking for ways not to pay legitimate claims to increase their profits, it is surprising that a law like H.R.5, that is so detrimental to almost every living American, has been sold to so many citizens (and doctors) as a solution to their concerns regarding the rising costs of healthcare.    

Unfortunately, because of the focus that has been placed on ‘tort reform’ measures, doctors have greatly overestimated the pervasiveness of malpractice lawsuits against them, leading them to support such efforts that in actuality would have a negligible effect on their insurance premiums.  Doctors are not the enemy here, but like others who injure individuals through negligent acts or omissions, like lawyers, builders, truck drivers, bankers, etc.,  when such an injury does occur, the ones who are responsible need to be held accountable.  H.R.5 does not attach this accountability to responsibility.   

Rep. Gingrey titled H.R.5, “Protecting Access to Healthcare Act.”  He should have called it, “Protecting My Donors Access to Record Profits Act.”  Rep. Gingrey, along with others in support of tort reform, at best have misinterpreted studies and data to come up with their opinion, and at worst, are intentionally misleading those who depend on their honesty and judgment.  Fortunately, H.R.5 is not yet law, but proponents of civil justice, accountability and inclusion face an uphill battle.  Write your Senator, write the President, tell your elected state officials that you don’t support H.R.5 and support candidates that support your right to hold others accountable for their actions – not those that place profits above all else.  Most importantly, tell others why the civil justice system is so important.  We need to fight back with everything we have, because this is a battle we can’t afford to lose.