Disingenous Remarks from AMA President on Tort Reform – letter BMJ / NYT Test a Lawyer’s Ingenuity

Sun, 6 Mar 2005

Responding to an article in the BMJ about President Bush’s bill to restrict class action suits for medical malpractice-http://bmj.bmjjournals.com/cgi/content/full/330/7490/499-c – the president of the American Medical Association, Dr. John C. Nelson, denied that the AMA supported the bill.

However, as Dr. Stefan Kruszewski (AHRP board member) points out, such denials are disingenuous, given the evidence – in this case, on the AMA website.

An article in today’s New York Times points out that a Columbia University study shows that the President’s push to put a cap on medical malpractice suits won’t lower the damages awarded by juries. Instead of awarding claims for “pain and suffering” plaintiffs’ lawyers will concentrate on economic damages.

A cap on damages is a veiled effort to shield the pharmaceutical industry from being held accountable for marketing tainted products and for concealing severe adverse drug effects that kill and disable hundreds of thousands (probably millions) of people. The cap is NOT to protect doctors and hospitals from “frivolous” claims.

Contact: Vera Hassner Sharav
212-595-8974

BMJ 5 March 2005
Disingenuous Remarks from the AMA on Tort Reform
Stefan P. Kruszewski,
M.D.-Psychiatrist
Harrisburg, Pennsylvania USA 17112

Send response to journal: Re: Disingenuous Remarks from the AMA on Tort Reform

Front and Center on the March 5th, 2005 homepage of the American Medical Association is a link to the AMA’s sponsored Medical Liability Reform initiatives. One of those initiatives is the “Fund for American’s Liability Reform.” That “strategic advocacy”, as the AMA describes it, will help to “mobilize grassroots activists, galvanize public support and target media activity” in what the AMA site says will “directly (the word Œdirectly’ was emphasized by the AMA) affect the passage of medical liability reform at the federal level.” (1)

Likewise, the most prominent US physician, Senate Majority Leader William Frist (R-TN), has been an outspoken proponent of tort reform, including passage of the bill that Ms. Lenzer accurately described (one that limits certain class action suits from state courts and moves them, instead, to Federal jurisdictions.)(2) Dr. Frist said in his Shattuck Lecture published in the January 20th, 2005 of the New England Journal of Medicine that the United States must “stop the litigation lottery” and “we must pass medical litigation reform.” (3) He commented that the cost of medical malpractice, including “frivolous lawsuits” and “defensive medicine” (the label that describes the alleged behavior of ordering excessive tests and procedures attributed to physicians’ fearful responses to the threat of medical liability) accounts for more than $100 billion a year in additional US health care costs. (3)

With the information from the AMA website (including the AMA’s specific support for President Bush’s tort reform that I did not include above) and Dr. Frist’s lecture, I was surprised to read Dr. Nelson’s comment in his rapid response, suggesting that the AMA did not take a position on the bill. (4) On the one hand, it is entirely possible that the AMA did not specifically— and in writing—endorse the restriction of class action lawsuits from state courts. On the other hand, the AMA’s support for tort reform is long-standing. It would be almost disingenuous to suggest that the AMA, while asking its members for financial contributions to assist nationwide efforts to support President Bush and the Majority Senator’s liability reform initiatives, would not be supportive of this particular piece of legislation.

This issue of tort reform is, perhaps, larger than medical liability or any real desire to protect the interest of American physicians. The benefits, if any, of this legislation may temporarily dampen medical malpractice rates. If that relief occurs in any meaningful way, it is welcome. Any such benefits are, however, offset by the increasing inability of Americans to access what has been a constitutionally- protected freedom: To seek redress for injuries, including those due directly to corporate healthcare and business negligence. Without a Federal Patient Bill of Rights and with increasingly restrictive access to the state courts, Americans will be further hampered in their ability to seriously question their healthcare products, decisions and management.

1. American Medical Association website. Fund for America’s Liability Reform. March 5th, 2005.

2. Lenzer. J. Bush signs act that restricts class action suits in state courts BMJ 2005;330:499 (5 March)

3. Frist. WH. Health Care in the 21st Century. N Engl J Med 2005; 352(3):267-272.

4. Nelson, JC. Response to: Bush signs act that restricts class action suits in the state courts.” BMJ: 2005; 330: 499-c March 5, 2005

Competing interests: None declared

http://www.nytimes.com/2005/03/06/weekinreview/06lipt.html

March 6, 2005
Go Ahead. Test a Lawyer’s Ingenuity. Try to Limit Damages.
By ADAM LIPTAK

PPRESIDENT BUSH says that large malpractice awards are helping to drive health care costs up, and he wants to cap some damages patients may recover in court from doctors and hospitals. But lawyers are resourceful types, and a new study suggests that limiting one sort of damage award merely causes other kinds of damages to increase.

In states that already cap some damages – the ones labeled “pain and suffering” – the study finds that total awards have remained pretty much the same. This suggests that plaintiffs’ lawyers have simply recast their cases to encourage juries to award the same amounts under different names – for, say, “lost wages.”

Legal experts have questioned aspects of the study’s methodology and findings. But they tend to agree, whether in admiration or horror, that lawyers can show almost limitless ingenuity in adapting to new legal rules.

After all, trial lawyers are paid not for their accounting skills but for their ability to make jurors sympathize with the plaintiff. And juries, in turn, often ignore jargon-laden damages instructions and simply award the amount they think will put an injured patient’s life back on track.

The bottom line, said Charles M. Silver, a law professor at the University of Texas, is this: “Plaintiffs’ attorneys are paid to be creative to get the maximum damages for their clients.”

Victor Schwartz, the general counsel of the American Tort Reform Association, which supports caps, acknowledged that categories of damages can be malleable.

“Effective plaintiffs’ lawyers are going to be able to transfer something” between categories of damages, he said. “But there are distinct limits. They cannot make goats have wool.”

Injured patients can sue for three distinct forms of damages, and the president’s plan would cap only one of them. It would not limit economic damages like lost wages and medical expenses – items that, in theory, can be precisely measured in dollars and supported by detailed evidence but in fact can be the subject of dueling testimony by expert witnesses.

The plan would put a $250,000 limit on non-economic damages, for pain and suffering, disfigurement, anguish, distress and the loss of enjoyment of life, which by definition cannot be directly measured in dollars.

Punitive damages, a third category, are awarded in few medical malpractice cases.

The debate over the president’s proposal has mostly involved how caps will affect insurance premiums, rates of medical errors and the willingness of doctors to practice specific kinds of medicine, like obstetrics.

But neither the doctors and insurance companies that support the president’s plan, nor the plaintiffs’ lawyers and consumer groups that oppose it, have raised many questions about whether caps effectively limit the total sums awarded.

The new study, by Catherine M. Sharkey, a law professor at Columbia, may change that. The study, to be published in the New York University Law Review in May, analyzed jury verdicts in 22 states in 1992, 1996 and 2001. It did not consider cases settled out of court. It found that the median compensatory award in states with caps on damages was $324,000, compared with $387,000 elsewhere – figures that Professor Sharkey found were roughly equivalent after the data was adjusted for variables like the kind and number of plaintiffs and defendants, the percentages of local doctors and lawyers, and jurors’ wealth and ages.

Professor Sharkey concluded that “non-economic damages caps have no statistically significant effect on the size of overall compensatory jury verdicts or final judgments.” (Factors that do bear on those things, she wrote, are the severity of injury, whether the judge in the case was elected in a partisan race and whether the state requires medical experts to screen suits.)

Professor Sharkey’s conclusion, if correct, suggests that lawyers and expert witnesses have simply diverted their energies to arguing for higher economic damages. “Such strategies of attorneys and experts find a receptive audience in jurors, who may treat damages holistically,” she wrote. “That is, jurors may have a basic sense of the total amount of damages that a plaintiff should receive.”

Critics say smart lawyers would have tried to capture all the economic damages even before caps. “It’s not as if people were leaving money on the table in the first place,” said Walter Olson, the author of “The Rule of Lawyers,” a study of litigation abuses.

California was the first state to cap non-economic damages, at $250,000, in 1975. Today, 16 states have similar caps.

Mr. Schwartz, a former plaintiffs’ lawyer, said that before the introduction of caps, “if you just had a housewife or a househusband” – people without the lost wages that are a basis for economic damages – “you might just go with pain and suffering. If you had caps, you might try to translate that into showing that she or he was the C.E.O. of the family.”

There is, Professor Sharkey acknowledged, a competing explanation for the failure of caps to reduce total damages. It may be, she wrote, that plaintiffs’ lawyers are bringing a different mix of cases. For example, they might be inclined to accept a case involving an investment banker, whose lost income is huge, rather than a bus driver, however much he suffered.

Joanne Doroshow, executive director of the Center for Justice and Democracy, which opposes limits on damages, said the wrong cases might be falling by the wayside.

People who had big incomes can often show big economic damages, she said, while “capping non-economic damages discriminates against women, stay-at-home moms, children, the poor and the elderly.”

In an interview, Professor Sharkey said no one recommendation follows from her study.

“This could go in two wholly separate directions,” she said. “One side would go toward suggesting that if you really wanted to lower damages you should cap all damages. On the other side are people who say these kinds of reforms are somewhat futile.”

Copyright 2005 The New York Times Company

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