TCS Daily


Law and Orderlies

By Sydney Smith - September 24, 2002 12:00 AM

We're in the midst of a healthcare crisis again. Nearly ten years after the Clinton Administration tried to fix the system, and managed care was hailed as its savior, we are, in many respects, even worse off than before. Health insurance premiums are skyrocketing, childhood vaccines are in short supply, doctors are leaving the profession in record numbers, and, most ominously, hospitals are closing emergency rooms, trauma centers, and obstetrical wards. There are a host of factors responsible for this sad state of affairs, but one factor that's both easily recognized and easily fixed is the cadre of trial lawyers who pervert medical debate and milk the tort system for profit.

The Association of Trial Lawyers of America will tell you that they aren't to blame. It's the doctors and the insurance companies who are the crux of the problem. Doctors practice bad medicine and drive up the cost of malpractice. Insurance companies make bad investments and hike up their premiums to recoup the losses. The poor trial lawyers are merely easy scapegoats for the powerful insurance industry and medical profession lobbyists who are manipulating lawmakers and the public in their quest to subvert the American justice system.

But, the guilty hands of trial lawyers are to be found everywhere in this crisis.

  • When a widely publicized but hardly convincing study linked the arthritis drugs Celebrex and Vioxx to heart disease, the makers of both drugs were sued. Never mind that the association was far from certain and that the study was largely disregarded by the medical profession.

  • When another widely-publicized study found very small increases in breast cancer and heart disease among users of Prempro, within a week its maker was hit with a class action lawsuit. Never mind that the increases were extremely small and barely significant.

  • When the American Academy of Pediatrics and the Department of Health and Human services recommended that vaccine makers stop using thimerasol, a mercury-based preservative used in vaccines since the 1930's, lawyers mounted a class action lawsuit against the vaccine companies, accusing them of poisoning the nation's children with mercury. Never mind that the HHS and the Academy of Pediatrics only issued the recommendation as a precautionary measure. Never mind that to this day there has not been one case of mercury poisoning linked to a childhood vaccine.

Let it never be said that facts stood in the way of a good trial lawyer.

They're even less discriminating when it comes to suing doctors, and more successful at forcing them out of business. As jury awards in malpractice cases have skyrocketed, so have malpractice insurance premiums. In 1996, only thirty-four percent of jury awards were over one million dollars. Four years later that number had risen to fifty-two percent. Physicians, in turn, have seen premiums jump in some cases from four-digit to six-digit figures. Unfortunately, in our corporate-socialist model of medicine, physicians don't have the option of raising their fees to cover the increased cost of doing business. Those fees are set by Medicare and private insurance companies, not by the doctors. Faced with insurmountable overhead, many are leaving the field altogether or giving up high risk services such as trauma surgery and obstetrics. Hospitals can't function without doctors, so they, in turn, have also had to cut or eliminate services.

How bad have things become? The only trauma center within 10,000 square miles of Las Vegas had to close its doors this summer because its surgeons could no longer afford their malpractice insurance. A hospital in Cleveland, Ohio, had to close its emergency room for the same reason. Women in Mississippi often have to travel to Tennessee or Louisiana to find a doctor willing to deliver their babies, and women in rural Pennsylvania have to drive an hour or more to Pittsburgh to find one.

The states that have been hardest hit are the states that allow unrestricted punitive damages, and of these Mississippi stands out as the jackpot justice queen. Since 1995 there have been twenty-one jury awards of over nine million dollars in the state. Since 1995, fifteen malpractice insurance companies have stopped doing business in the state. While the rest of the nation saw increases in malpractice premiums over the past year averaging around 20%, Mississippi had an average increase of around 40%. Yet last year, malpractice insurers paid twice as much in claims there as they collected in premiums. The state medical association says that 73 physicians have left for better pastures in the past year alone. The state has finally realized the depth of its problem and is trying to enact tort reform legislation, but it hasnĀ¹t been easy. It's no coincidence that trial lawyers in Mississippi outspent other political contributors in the state by
$500,000 this year, according to Opensecrets.org.

Fortunately, the feds are beginning to understand the depth of the problem. Both the House and the Senate, with the backing of the Bush Administration, are considering bills that would cap noneconomic damages.

Despite these good signs, reform won't be any easier nationally than it has been in the states. Already the trial lawyers - who have contributed a million dollars more to Congress than the AMA has this year - have been busy providing victim testimonies of such sorrow that none but the hardest hearts could fail to weep. Let's hope that sense prevails over sensibility in Congressional hearings, or there will be far more future victims as childhood diseases make a comeback for lack of vaccines, drug prices spiral out of control, emergency rooms close their doors and it becomes difficult to find a practicing physician. If that happens, can we sue the lawyers?

The author is a family physician who has been in private practice since 1991. She is board certified by the American Board of Family Practice, and is a Fellow of the American Academy of Family Practice. She is the publisher of MedPundit.

 

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