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Tort for Tat

Fighting to a Draw in the Battle of the Briefing Books, Proponents of Legal Reforms are Winning the Rhetorical War

By Terry M. Neal
washingtonpost.com Staff Writer
Monday, March 7, 2005; 7:38 AM

Republicans long ago recognized the challenge of selling the idea of restricted access to courts and limiting jury awards, and redefined the issue as a crusade for basic consumer rights. The challenge was to make sure voters didn't see tort reform as an effort to please the GOP's base of donors from large insurers and corporations.

In their push this year to rein in lawsuits, the White House and Republican-controlled Congress are talking about it as an issue of basic consumer rights: Greedy lawyers are besieging the courts with frivolous lawsuits, convincing juries to hand out outrageous awards and in the process driving up the cost of insurance for all and forcing job losses. And the lawsuits are putting doctors out of work.

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"It's not malpractice reform," said Stan Anderson, executive vice president and chief legal officer for U.S. Chamber of Commerce, which is lobbying hard for limiting lawsuits. "We use the term medical liability reform. [Malpractice] reform is a pejorative term."

Republicans have so far been successful in their efforts to limit class action lawsuits, and have other tort reforms in their sights. They are winning because they control the rhetoric, not because they are armed with undisputed facts.

The message begins at the White House. In his State of the Union Bush called on Congress to pass medical liability reform that "will reduce health-care costs and make sure patients have the doctors and care they need." By the time it's cranked up, this message will be carried via talk radio and cable and amplified with a multi-million dollar lobbying, PR and advertising blitz by the business and medical communities.

Lawyers and many in the Democratic Party suspect the GOP's real motivation is damaging one leg of the Democratic funding triumvirate (labor unions and Hollywood being the others). While lawyers give most of their money to Democrats, the health care industry since 1990 has given 59 percent of its contributions to Republicans.

Entire Brazilian rain forests have been sacrificed to provide the paper needed to print the research on links between lawsuits and insurance rates, and between jury awards and consumer harm.

For its part, the National Bureau of Economic Research, a not-for-profit, nonpartisan think tank, found that malpractice payments don't seem to be the driving force behind recent increases in consumer premiums. The study also found that that increases in physicians' malpractice costs don't seem to decrease the physician workforce, although they may push out some doctors and lower the number of doctors practicing in rural areas.

(You can read the full report here, but it'll cost you $5.)

Not so fast, say supporters of liability reform, who come armed with their own studies that they say prove an inverse link between jury awards and insurance premiums.

"I've been told by our people that rates went down as soon as laws were passed [in Texas] on medical liability reform last year," said Stan Anderson, executive vice president and chief legal officer for U.S. Chamber of Commerce, which in recent years has poured tens of millions of dollars into the fight for limits to punitive payments.

Faced with significant challenges to the Chamber of Commerce's findings, the argument becomes less about who has the bigger briefing book and more about who controls the rhetorical ball.

"Because of our runaway lawsuit culture, one in seven obstetricians no longer delivers babies," said AMA past-president Donald J. Palmisano in testimony last month before the House Committee on Small Business.

"The only real winners in our broken liability system are personal injury lawyers. Patients receive only a fraction of the jury award, while the lawyers take one-third to one-half of the patient's entire monetary award - including 33 to 50 percent of the monetary award for the injured patient's medical expenses," Palmisano said.

Voters are buying the argument on the state level, anyway. Thirty states have passed some sort of tort reform. And just one day before Palmisano testified, Georgia's Republican governor, Sonny Perdue, signed legislation capping noneconomic damages at $350,000.

"This is about access to health care," Perdue said at the time.

Republicans have long been using these rhetorical retreads to beat Democrats in appealing directly to voters. A few years ago, the "estate tax" became the "death tax." That revision was necessary because it was difficult to whip up the masses to repeal a tax on people who had estates. But a death tax? Now, that was something everyone could understand. President Bush took the lead in redefining it as an onerous tax on the hard-won wealth of small farmers and small business owners.

Similarly, the Republican argument for Social Security reform is now about empowering the little guy. It used to be about downsizing government by battling the culture of entitlement.

The left may be losing the battle, not because the facts overwhelmingly support the Republican worldview but because of their inability to define the public debate.

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