The Right Wing's Drive for 'Tort Reform' | The Nation


The Right Wing's Drive for 'Tort Reform'

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It is no exaggeration to say that the civil justice system in America is under saturation bombardment, the most significant effort at rewriting the laws that govern lawsuits in twenty years. These are changes some legal scholars believe could alter the balance of the three branches of government; changes that could defang the civil jury so thoroughly that its role as quality-control guardian for products and services will alter drastically, if it doesn't wither and die.

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Dan Zegart
Dan Zegart, a freelance investigative journalist who writes frequently on legal subjects, is the author, most recently...

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The cheerleader in chief for this movement is President Bush. In his first months as governor of Texas, a job he won with the help of $1.3 million from the extremist Texans for Lawsuit Reform, Bush declared an "emergency" on "frivolous lawsuits" and rammed through the legislature a series of bills restricting suits. Now Bush has become the first President to make downsizing the civil courts a signature concern of both his Administration and his re-election effort. His campaign calls medical liability the "largest cost in the health care system"--a sheer fiction.

While Bush and the GOP in Congress push for federal lawsuit restrictions, Texas-style legal changes are already becoming the rule, not the exception. Thirty-two states have enacted civil justice "reform" in a two-year period. Indeed, since the Gingrich revolution swept the House of Representatives and many statehouses in 1994, virtually every state has made it harder to sue over botched medical care, hazardous products, business scams, drunk drivers, nursing-home rapes and many other woeful situations with which the tort system deals in the United States. Whole categories of miscreants can dodge the courts in Texas, unquestionably the flag-bearer of the movement. If you buy a brand-new house and the windows fall out, you can sue the builder only after navigating a maze of arbitration that can take years, one designed and staffed by the home-building industry. And by altering its Constitution via Proposition 12, Texas guaranteed that its Supreme Court cannot nullify the damage cap, something high courts have done ninety-six times to lawsuit restrictions. Constitutional amendments are on the ballot in three other states this fall.

Despite promises that only meritless legal actions would be affected, the early evidence from Texas is that the referendum has combined with previous changes to severely compromise the state's civil justice system. Local newspapers are beginning to write about alleged malpractice victims who cannot find a lawyer, like Yvonne Harrison, a clinical pathologist and paralegal whose 18-year-old son died in the hospital of pneumonia. Harrison says all of the dozens of lawyers she contacted cited the damage caps in turning her down. She is now representing herself. In Harris County, which includes Houston, only forty medical malpractice suits were filed between January and March 2004, compared with 120 during that period in each of the previous three years. And finally, I investigated other "medical accidents" in Texas, including a baby blinded at birth after doctors allegedly failed to identify a treatable eye condition, and a woman dying of lung cancer, apparently because her physician misread her chest X-ray. Both were rejected by attorneys who said tort reform made them unfeasible.

"We're turning down ten cases a week that we used to look very seriously at," says Tom Rhodes, a San Antonio malpractice specialist. Children and the elderly will be disproportionately affected, he says, because the only damages they can receive are for pain and suffering.

The purpose of Proposition 12's severe restrictions on victims' rights was to lower malpractice insurance premiums, which had seen double-digit increases. In Texas, as elsewhere, the tort reformers exploited the rate hikes as part of a scare campaign to sell reform. However, the facts show that the legal system is not driving insurance rates. Tort actions at the state level--meaning personal-injury lawsuits, everything from product liability to traffic accidents to libel--have fallen 5 percent in ten years, according to the National Center for State Courts.

More specifically, malpractice filings declined nationally by about 4 percent between 1995 and 2000. And while a recent analysis of the Medicare population estimated that medical error kills 131,000 people annually, making it the fourth leading cause of death, medical suits are only 5 percent of personal-injury filings, with product liability cases another 5 percent. Plaintiffs lose 60 percent of product cases and 70 percent of malpractice suits.

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