The Falsity of Tort Reform
A battle for justice is being waged in this country. It has monumental impact for injured persons and the nation as a whole. Many insurers, corporations and health care professionals want to reduce consumer rights and cap jury awards for non-economic damages or "pain and suffering."
Such tort reforms would disproportionately harm those who experience traumatic injuries, like the approximately 11,000 Americans who suffer a new spinal cord injury each year. Many of these injuries are the result of others' carelessness, like those responsible for auto accidents, the leading cause of SCI. Tort reform would prevent disabled claimants from receiving full compensation for their injuries. It would make those who cause life-altering injuries less accountable in court for their mistakes. Limits on pain and suffering damages would also tend to wrongly equate a person's legal worth with the size of his or her paycheck.
Are such dramatic changes in our law necessary? Consider these facts:
*There is no evidence of a tort litigation "explosion." According to data compiled by the National Center for State Courts, tort filings in the U. S. declined by nearly ten percent from 1993 to 2002. The real culprit clogging courts are businesses, which file lawsuits four times more often than individuals. Contract disputes between businesses comprise the single largest category of lawsuits filed in the Federal courts.
*There is no evidence of inflated or excessive jury awards. According to the Bureau of Justice Statistics, verdicts dropped more than 56% between 1992 and 2001. The median amount of compensation in all tort cases, adjusted for inflation, is $28,000.
*Increases in medical malpractice premiums are not caused by tort verdicts. Malpractice suits have increased largely because the number of U. S. doctors has doubled (from 366,425 to 750,000) between 1975 and 2001. Premiums have also increased because of unsound investment practices by insurers. Approximately 80% of all medical malpractice premiums have been invested in the bond market. A General Accounting Office report in October, 2003 concluded that these investments suffered a huge hit from 1998 to 2001 when interest rates on bonds fell, causing proportional increases in premiums.
*Negligent health care professionals are more responsible for high jury awards than lawyers. In Massachusetts, one-fourth of one percent of all the doctors (98 of the 37,369 doctors) accounted for more than 13 percent of all the malpractice payments, $134 million of the $1 billion in total payments. While medical malpractice is pervasive and the third leading cause of death in the U. S., a Harvard Medical Practice Study indicates that only 2% of patients injured by physician negligence nationwide sue.
*The health care and insurance industries are generally vibrant and profitable. Weis Ratings indicates that HMOs earned $10.2 billion in 2003, an 86 percent increase (or nearly doubling of net profits) from 2002. The property/casualty insurance industry was expected to earn profits of $36 billion in 2004, an all-time record. Malpractice costs account for less than two percent of health care spending - private or governmental.
*Laws capping damages do not reduce doctors' insurance premiums. A comparison of states that have enacted tort restrictions and those that have not, performed by the Center for Justice and Democracy, found no correlation between tort reform and insurance rates. After limits on insurance company payouts were enacted in Ohio, Florida, Texas, Oklahoma and Nevada in the past two years, rates went up, not down. On average, malpractice premiums were no higher in the 27 states that have no limitations on malpractice damages, than in the 23 states that do have such limits.
The tort reforms being proposed are not only unjustified, but detrimental to injured persons. Disabled claimants should not have to sacrifice their rights to recover adequate compensation for their pain and suffering. Proposals to require periodic payments would penalize injured individuals, while permitting large insurers to earn and profit from the monies that they retain.
Some lament that tort liability has driven certain products off the market. The fact that diving boards are harder to find at hotels and public pools is commonly cited as one example. With 1,000 people suffering SCI in diving accidents each year, fewer diving boards may not be such a bad thing, particularly at shallow or unsupervised pools. A Federal task force study in 1977 concluded that most products driven from the market had been, in fact, unreasonably unsafe.
The real "crisis" in our law today is one of perception and politics. The SCI community needs to become energized in order to protect its interests. Please contact your representatives and express your concerns.
