TORT REFORM TALKING POINTS



I noticed this letter to the editor in Monday's Press Citizen, written by Martin A. Diaz, a self-proclaimed "thriving personal injury lawyer" in Iowa City, who according to his website, specializes in, among other things, medical malpractice cases. Key quote:



"I was pleased to see that area doctors thought it important to use the jury system to vindicate their rights against SecureCare. The jury system should be available to all people in this community, not just those who can afford it.



Having now used the jury system to vindicate their loss caused by the negligence of others, I trust that these doctors will now support the rights of their patients, as well as others, to use the jury system to vindicate the rights of those affected by the negligent conduct of others."



This morning, I read an editorial in the Des Moines Register, from the same set of talking points:



"Now that doctors from the Iowa City area have won a $2.35 million settlement from a health insurer, the Iowa Trial Lawyers have jumped at the chance to ask: If doctors are using the courts when they're wronged, why shouldn't their patients be able to do the same?



"If it's OK for [doctors] to file unfettered lawsuits when they are injured by incompetent insurance providers, how can they possibly justify shackling the rights of patients who are injured by medical incompetence?"



They have a point. Doctors have been the spokespeople advocating for capping damage awards on malpractice lawsuits, even though there is no evidence that would do anything to control the cost of their malpractice insurance. Blaming trial lawyers has become routine, and is easier than dealing with the underlying problems of malpractice and skyrocketing health-care costs."



Some interesting coincidences, particularly given that neither paper ran the story about the original $2.35 settlement (not a jury trial, as implied by the repeated use of the "jury system" phrase).



Two things about this, other than the serendipitous timing and phrasing of the articles, annoy me:



1) According to an article in the Quad City Times, which according to this Google search appears to be the only Iowa news source other than WHO TV who reported on the settlement itself, the source of the conflict was that the insurer was undercharging insureds for their medical premiums:



"The doctors, associated with Mercy of Iowa City Regional Hospital Organization, filed a lawsuit against SecureCare of Iowa three years ago in Johnson County District Court. The lawsuit says SecureCare underpriced health care premiums to area employers. . . The physician group entered a 10-year contract with SecureCare in 1996, under which the physicians were to provide health care to employees of area companies. The doctors canceled the contract in 2001 because SecureCare failed to price premiums accurately."



While the charging of premiums is somewhat statistically driven and not an exact science, we are still talking about known sums here. The insurers know what health care costs are likely to be, how many people are statistically likely to get sick with what diseases, and are supposed to charge premiums accordingly. Failure to do so means they ignored some portion of the equation in order to make money. The suit may have been couched in terms of negligence, I don't have that information. But the wrong essentially being addressed is more similar to a contract dispute than a tort - failure to live up to a promise, rather than a mistake that hurt another person. (I'm not dealing with the wilfullness aspect, which could appear both in tort and in contract).



2) My most major gripe lies in the issue of damages. If the insurer failed to charge correct premium, it is a fairly simple calculation - for those mathematically oriented - to determine what premium should have been charged and determine a known sum of damages. But the big beef in tort reform has never been about known damages, as demonstrated by this earlier Des Moines Register article on the tort reform bill:



"Vilsack, former president of the Iowa Trial Lawyers Association, has made clear that he opposes efforts to limit legal awards for "pain and suffering" caused by medical malpractice."



Ask any person advocating tort reform whether they believe that an injured party should not be given reasonably related medical bills. They'll not dispute that point. I don't know anyone who does. The issue is always the intangible damages, the punitive damages, the 'what are we going to do to punish this person for their mistake, and how much money would you pay to live with this bad back/headache/amputated foot/emotional distress for the rest of your life' type of damages. This is where the hot coffee verdicts stem from.



It is disingenuous at best to try to draw a comparison between the settlement and tort reform. It's like saying if I brought charges against a burglar in my home, I shouldn't question the "constitutional right" of the plaintiff's bar to bring class action suits against restaurants for causing obesity, or support the removal of wooden toys in playgrounds because - horrors - some kids get hurt when they play, or the right to "embarassment and emotional distress" damages by a woman who intentionally walks into a fountain full of bubbles and is shocked - shocked, I tell you - when she slips and cuts her leg.



As I've blogged earlier here and here, I'm not so sure Iowa needs tort reform. As a whole, we've got a history of returning fairly sensible verdicts and we've got juries that tend to know the value of a dollar. My 2¢ worth of a solution was a compromise:



"Perhaps try something in line with the US Supreme Court’s rulings on punitive damages, where the test is whether or not the damages are in proportion to the tangible damages incurred. Perhaps in the five to ten multiplier range? For example, a claimant who has $5000 in lost wages and medical bills, he or she would be capped at a multiplier of, say, seven times that amount, or $35,000 in past or future “pain and suffering” intangible damages. That would leave in the flexibility for those who are very severely injured in a very egregious manner to obtain the larger awards, while setting a reasonable cap that would track with jury trends in the past."



That said, I hate public relations attempts masked as honest news stories. Let the trial lawyers write letters to the editor. They've got a vested interest in protecting their income. But don't copy their talking points and pass it off as a news editorial, particularly when the position taken is an inaccurate one.