"In the state of nature... all men are born equal, but they cannot continue in this equality. Society makes them lose it, and they recover it only by the protection of the law."
-Charles de Montesquieu
In the ongoing debate over health care reform, critics on the right are increasingly citing the lack of tort reform as a major deficiency of the current proposals floating around the halls of Congress. Instead of focusing on truly conservative solutions to our nation's mounting health care crisis, Republican lawmakers and pundits are playing the same old song-and-dance―blaming ballooning health care costs on trial lawyers. This red herring tactic is a classic example of politicians trampling principle in pursuit of politics. In this case, Republicans moonlighting as "conservatives" seek to use tort reform to shield corporate malefactors (who also happen to be their financial benefactors) from full accountability for their wrongdoing. In so doing, they are undermining a bedrock principle of our nation's justice system.
For years, Big Business and the U.S. Chamber of Commerce have spent millions of dollars in a public relations campaign aimed at demonizing trial lawyers, portraying them as unethical con-artists out to game the system. These corporate interests have a vested interest in keeping the tide of public opinion running against trial lawyers because it deflects attention from the widespread problem of negligent and reckless conduct that injures consumers. This "shoot the messenger" tactic not only enables businesses to avoid financial accountability for wrongdoing―it deliberately undermines the people's civil liberty.
The reality is that trial lawyers are the people's first line of defense to secure redress of grievances for private or civil wrongs committed against them. The most highly publicized of these kinds of cases usually involve David and Goliath-type scenarios―think of the massive frauds committed by WorldCom, Enron, or Bernie Madoff and you get an idea why trial lawyers are essential to securing justice for those wronged at the hands of well-heeled rogues with deep pockets and limitless legal resources. And yes, sometimes these cases involve substantial claims against doctors or hospitals accused of malpractice.
Despite unfair characterizations to the contrary, medical malpractice is no joke. Every day thousands of Americans walk into doctors' offices, emergency rooms, and operating rooms trusting their lives to the expertise and integrity of the medical system. Errors in diagnosis, misread charts, medication errors... all can cause irreparable harm to their victims. And these kinds of accidents happen often―far more than Republican advocates of "reform" are willing to admit and far more than most people realize. According to several studies conducted over the last decade, up to 98,000 people die every year as a result of an estimated 15 million instances of preventable medical errors. These statistics place death by malpractice as the 6th leading cause of death in the United States.
For the victims and their families, the tragedy inflicted as a result of medical malpractice is very real, and the process of seeking a just remedy can be overwhelming. It is for precisely these kinds of situations that the 7th Amendment to the United States Constitution guarantees all Americans the right to a fair trial before a jury of their peers. This right is a foundational principle of our civil liberty and should be a core tenet of conservatism because it affirms the responsibilities citizens have in a free society and the accountability of all before the law.
Nevertheless, the importance of the civil justice system and the right to trial by jury is poorly understood by many conservatives because trial lawyers are constantly demonized by special interests seeking to evade justice. Many Republicans have been wrongly led to believe that tort "reform" is some kind of Reaganesque trickle-down solution to the high cost of insurance and the high cost of medical care. The facts, however, don't support such a notion. Skyrocketing insurance premiums are not a result of malpractice litigation, and the high cost of medical care stems more from "offensive medicine" (profiteering by doctors seeking to make an extra buck), rather than "defensive medicine" purportedly resulting from fears of malpractice suits.
In 2007, the Congressional Budget Office estimated that costs associated with medical malpractice claims only amounted to 2% of overall health care spending. Furthermore, multiple studies suggest that the high cost of medical insurance has virtually no correlation with the frequency or amount of malpractice payouts but is actually a result of insurance companies playing the market and―in some cases―intentionally misrepresenting the influence of malpractice payouts in order to keep premiums high. Doctors are not fleeing the medical profession from fear of lawsuits, and those who are sued for medical malpractice are often permitted to continue working with little to no professional censure for the harm they inflicted.
The truth is that corporate moguls push for tort reform because they have little use for a civil justice system that puts the little guy on the same plane as the rich and powerful. These so-called fiscal conservatives don't like equal justice. They want preferential treatment―something they are accustomed to getting from politicians because of their hefty campaign contributions.
Conservatives need to educate themselves about the importance of a civil justice system that protects everyone and treats all litigants―rich and poor alike―as equals before the law. Furthermore, true conservatives ought to resist attempts to federalize tort law and impose one-size-fits-all solutions to "problems" that are, in large part, the fictional creations of special interest lobbyists seeking to enrich the coffers of their wealthy clients. Any change in medical malpractice laws should occur at the state level and be tailored to meet conditions in the individual states. The people in Topeka may approach the same problem differently from the folks in Tallahassee. They may be experiencing different problems, or perhaps, none at all. In any event, the residents of Attapulgus, Georgia don't want Chuck Schumer and Olympia Snow dictating the remedy they can pursue when a doctor leaves a pair of scissors in the site of their incision or causes avoidable brain damage to their newborn.
Tort reform subsidizes wrongdoing by shielding wrongdoers from accountability for the consequences of their misconduct. It is an affirmative action program for corporate miscreants. Incorporating tort reform into health care reform will do nothing to cut medical costs. It is, however, guaranteed to result in more, not fewer, cases of medical malpractice. Furthermore, federalizing tort laws will only result in the accretion of more power in the hands of the central government and the emasculation of the rights of states and individuals.
If Republicans are truly sincere in their commitment to protecting the rights and liberties of the American people against more and bigger government, they should resist any attempt to federalize the laws of medical malpractice.
Ken Connor is the Chairman of the Center for a Just Society in Washington, DC, the former President of the Family Research Council, and a nationally recognized trial lawyer.