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Don't fight torts, eat them

Illustration by Mike Padilla
By Dillon Fishman
Arizona Daily Wildcat
Tuesday, February 15, 2005
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In the name of improving American health care, a Republican-dominated Congress recently grabbed the legislative scalpel and vowed to cut the number of civil lawsuits that are "clogging America's courts."

Last week, Congress tried to push through legislation to make it easy to remove class-action lawsuits from state to federal courts. The law's sponsors know that removal to federal courts - which are about as friendly to class action plaintiffs as Judge Judy in the morning - effectively sounds the death knell for those lawsuits.

Next up, the lawmakers have declared their intention to reduce health care costs by killing or controlling "junk" and "frivolous" medical malpractice lawsuits, also called torts, against health practitioners. During and after the presidential campaign, Republicans have regularly denounced these lawsuits, claiming that they're a major problem in American health care.

For consistency in names, following the War on Terror, this new fight might be dubbed "The War on Torts." By the way, "torts" here - lawsuits for personal injuries - are not to be confused with "tortes," tasty baked goods such as brownies and cakes. The good news is that we can easily tabulate our progress in the War on Torts, unlike that pesky enemy "terror," whose progress is rather hard to quantify.

The War on Torts is a war that will ultimately hurt Americans worse than prolonged exposure to "American Idol." And it won't be nearly as amusing as watching Simon belittle another wannabe star. It's harmful first, because it's a waste of Congress's time, and second, because it could restrict court access for legitimately injured plaintiffs.

So what's the big deal about torts? The reason for the War on Torts, lawmakers claim, is because renegade juries award verdicts in the millions of dollars. And, the argument goes, those verdicts drive up malpractice insurance rates for doctors - who pass along the costs to average Americans.

But, like young Barbara Bush's breasts at Yale fraternity parties, the falseness of those claims has already been exposed.

Dillon Fishman

In fact, in late November, the Wall Street Journal reported that only 2 percent of American health care spending goes toward malpractice costs. Furthermore, only 4 percent of those medical malpractice costs come from jury verdicts. Now, we Americans might be dumb, but even those of us who aren't math majors can tell that a fraction of 2 percent isn't going to make a big difference in the grand scheme of things. That's just a couple of crumbs from the pie.

So why is this Congress telling Americans that capping jury verdicts is so important? It's the money, stupid. The problem the politicians have with torts is that they threaten to trim the hefty pocketbook of insurance companies through large jury awards - which those companies have to pay. And it's no secret that those insurance companies are also major political campaign contributors.

Attorney William Sandweg, a veteran plaintiffs' attorney in Phoenix, explains that he already carefully screens tort cases before accepting them because malpractice insurers fight any lawsuit that he brings. Because insurance companies fight these cases so hard, Sandweg spends more than $100,000 in attorney time, and invests between $50,000 and $150,000 in costs and expert fees on preparing to bring a lawsuit to trial.

Just to break even, Sandweg says, he has to be able to win at least a $200,000 verdict. And while that may sound like chump change to the fat cats in Congress, personal injury lawyers know that they stand to get nothing unless they win. Fronting $200,000 or more is a big incentive for these lawyers to make sure that their cases are very strong before they ever file a lawsuit. And that's why Sandweg turns away the vast majority of people who walk into his office.

Sandweg sadly recalls an episode of "60 Minutes" relating that most "small" injury victims of medical malpractice won't even get their day in court. In other words, a doctor can negligently cut off the tip of your pinky, and you won't get anything for it.

Unless Congress specifically follows the program of states like California - which have independent agencies that regulate insurance rates - capping jury awards just means that big insurance companies will pay less money to injured plaintiffs. That's because medical malpractice insurers don't have to reduce the amount that they charge health practitioners just because Congress limits jury awards. In other words, it's all a smoke screen.

The real irony of tort reform is that its principal sponsors, Republican lawmakers, are in the same bunch that publicly espouses fidelity to "federalism" - the principle of permitting states to self-regulate. Maybe Bill Clinton and Strom Thurmond aren't the only politicians whose infidelity is public news anymore.

Dillon Fishman is a third-year law student. He can be reached at

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