 January 2003 • Volume 9 • Number 1 |
 "Far too often in the tort reform movement, we aim our message at those folks we already have," says Texas lobbyist Kim Ross. "You have to know where to go to get your votes, and your votes are in the swing." Ross addressed attendees at the State Legislative Conference. |
Like any other health care lobbyist, Kim Ross would love nothing more than to spend less time dodging "friendly fire." He's exercised that skill as vice president for public policy and director of public affairs for the Texas Medical Association.
In the statehouses or on Capitol Hill, friendly fire refers to harmful -- or at least unduly time-consuming -- acts unwittingly perpetrated by well-intentioned lawmakers on those making every effort to further said lawmakers' legislative goals. When it comes to professional liability legislation, the term takes on a very specific meaning. Ross explained it during a panel discussion on medical liability at the AAFP State Legislative Conference here Nov. 15 16.
"There's a category of legislators who will vote for anything with tort reform in the caption, up to and including shooting trial lawyers randomly selected from the Yellow Pages," Ross told physicians, chapter executives, health lobbyists and others attending the meeting. As you'd imagine, this situation usually works to the advantage of lobbyists supporting such reform measures.
The problem arises when these lobbyists reject, for example, an amendment offered by just such a well-meaning legislator to an otherwise workable bill. The lobbyists know the modification will lose votes for the measure. The legislator views their resistance as an attack on the core proposal and launches a counterattack -- on the lobbyists.
Thrust, parry, riposte. Meanwhile, a perfectly acceptable piece of reform legislation languishes.
Make hay while the sun shines
Assuming all parties can agree to agree, the next task is to get the right votes on board.
"Far too often in the tort reform movement, we aim our message at those folks we already have," Ross noted. Alternately, reform proponents go after the most dug-in of opponents, figuring a victory there will open the floodgates of acceptance and ensure passage.
The plurality of legislators, though, camp out in the middle ground on such issues, trying not to antagonize this or that special interest. And it is often there, in the center, where the debate ends. "As a practical matter, you have to know where to go to get your votes, and your votes are in the swing," Ross said.
What're we fightin' for?
It's easier to understand legislators' reluctance to declare their allegiance one way or the other once it's clear what they're declaring for or against. Namely, the right of jurors to voice an opinion about the worth of a patient's pain and suffering.
"This is not a frequency crisis. This is a severity crisis," Ross explained. It's not so much that the number of suits is up, but that damage awards have grown by leaps and bounds over the years. "The largest component of those damages is the part that the jury has entire discretion on. In other words, noneconomic damages," he said.
Focusing reform efforts on this area is politically touchy because doing so involves taking away juries' discretionary power -- not a particularly appealing prospect for legislators counting on those constituents for re-election.
But state-based initiatives that include caps on noneconomic damage awards -- such as California's model Medical Injury Compensation Reform Act, better known as MICRA -- work, said AAFP Past President Richard Roberts, M.D., J.D., of Madison, Wis. Physicians in states implementing these initiatives have managed to keep malpractice insurance rates in check.
Other successful tort reform strategies include reducing the statute of limitations, limiting contingency fees, implementing some form of collateral source rule and utilizing periodic payments.
Strategies such as limitations on expert witness testimony, alternative dispute settlement systems, "loser pays" scenarios, joint underwriting ventures and expansion of states' medical examiners board authority have also been tried, said Roberts. "But we have no evidence that these reforms work, and they may, in fact, cause problems."
Two steps forward, one step back
Whatever positive strides you're able to make in passing liability reform in your state, said Ohio AFP President-elect Jeffrey Bachtel, M.D., of Tallmadge, the greatest challenge may be holding that ground in the courts.
Ohio passed sweeping tort reform in 1996 -- only to have the law thrown off the books three years later by the state's Supreme Court, he said. At the time of this meeting, reform bills were on hold in the state senate awaiting judicial election results. Only then were reform advocates able to begin planning how to head off another judicial attack.
West Virginia has likewise faced setbacks in the courts and elsewhere, said David Avery, M.D., of Vienna. In 2002, only one FP in the entire state still offered OB services, quitting at the close of the year, he said. Small wonder: The annual OB malpractice premium was $96,000; as of Jan. 1, that amount increased by 17 percent.
"So now the only OB that's being done in the state is being done at the university health centers under a program that's draining the state," said Avery, a past president of WVAFP.
A series of television commercials produced by a coalition of hospitals, physicians and insurers to educate West Virginians about the impending medical liability crisis and its impact on access to care met with staunch opposition. One such commercial was forced off the air earlier this year. Why? "The trial lawyers association called Marshall University (in Huntington) and said they would stop all their donations to the university instantly if (the commercial) ever showed again," said Avery. "That was the last time it showed."
To make matters worse, three of the state's five Supreme Court justices are trial lawyers, he pointed out. So no matter what tort reform might pass in the legislature, it's sure to be squelched by the high court once a tort case is heard.
When that's the kind of pool that's being played, you can pretty much forget a legal challenge, said Avery. "We need court reform, not just tort reform."
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Copyright © 2003 by
American Academy of Family Physicians.