President Bush decried “junk lawsuits” and “the litigation culture” Thursday in an impassioned plea for limits on medical malpractice liability -- a cause he has promoted heavily in the closing days of his reelection campaign, even though voters rarely cite it as a major concern.
Bush’s pitch, usually coupled with a lament about maternity wards forced to shut down and obstetricians forced out of practice because of high insurance bills, serves at least three political goals.
It helps him appeal to women. It counters Democratic challenger John F. Kerry’s arguments for government spending to expand access to health insurance. And, much as Democrats like to tie the president to his previous career in the oil industry, Bush’s anti-litigation stance reminds voters that Kerry’s vice presidential running mate, Sen. John Edwards, was a trial lawyer before he came to Washington.
“You cannot be pro-doctor, pro-patient and pro-personal injury lawyer at the same time,” Bush said in Hershey, Pa., echoing a speech he gave hours earlier in Downington, near Philadelphia. “You have to make a choice. My opponent put a personal injury lawyer on the ticket. I’m standing with doctors. I’m standing with patients. I’m standing with the people of Pennsylvania. I’m for medical malpractice reform -- now!”
Findings from a variety of analysts suggest that some of the president’s concerns are overstated. Some say malpractice costs account for a small fraction of overall healthcare spending in the United States -- less than 2%, the nonpartisan Congressional Budget Office reported in January.
Also, although independent analysts have concluded that malpractice lawsuits are a significant factor behind rising insurance premiums for doctors, they are not the only one.
And even the most ardent advocates of caps on lawsuit damages acknowledge that the type of suits that Bush condemns are costly for law firms to pursue and therefore uncommon.
“There is no question that it is very rare that frivolous suits are brought against doctors. They are too expensive to bring,” said Victor Schwartz, a Washington lawyer and authority on tort law who is also general counsel to the American Tort Reform Assn.
Polls have shown that voters rate many issues, from Iraq to the economy, as far more important than tort reform, a topic that barely resonates in surveys.
Andrew Kohut, director of the nonpartisan Pew Research Center in Washington, said Bush’s anti-lawyer stance was a perennial Republican theme. “I’m not so surprised about it,” Kohut said. “But I don’t think it’s one of the real issues that’s going to light people’s fires this year.”
Backers of liability caps argue that Congress should adopt a uniform malpractice system modeled on a 1975 California law. The state limited noneconomic damages, such as for pain and suffering, in malpractice jury awards. The cap, which does not apply to economic damages such as lost wages, was fixed at $250,000. More than half of all states have followed California’s lead, but limits vary.
“The problem is excessive damages that are unpredictable,” Schwartz, of the tort reform group, said. “Until you put predictability in the damage system, you are going to have serious liability problems.”
Nationwide, about one in four medical malpractice claims that go to trial end in a verdict for the plaintiff. The median verdict was $431,000 in 2001, up from $253,000 in 1992, the Justice Department’s Bureau of Justice Statistics reported in April.
Trial lawyers maintain that Bush’s version of tort reform would amount to a gift to the insurance industry and strip ordinary people of legal rights.
They say Bush’s charges are based largely on anecdotal evidence, not hard data. They say the number of personal injury lawsuits is not rising, and they challenge the president to back up his rhetoric about “junk lawsuits” with specifics.
On Thursday, Bush cited troubles that individual doctors and hospitals face in Pennsylvania, but he did not expound on particular suits that he considered “frivolous.”
Medical groups have declared a malpractice lawsuit “crisis.” In July, the American College of Obstetricians and Gynecologists reported that one in seven doctors in a recent survey had stopped practicing obstetrics because of the “high risk” of liability claims.
Kerry, a Massachusetts senator, and Edwards, of North Carolina, have opposed Republican-sponsored bills to cap malpractice damages. Their view has prevailed so far in Congress. Bills to limit malpractice liability, backed by insurers and doctors but opposed by trial lawyers, have foundered in recent years.
Instead of a cap on damages, the Democratic candidates propose restrictions on insurers to contain malpractice premiums, sanctions against lawyers who repeatedly file unmerited suits, and wider use of mediation before cases go to trial.
Ridiculing these proposals as inadequate, Bush has torn into the Democratic ticket in his campaign speeches, in the presidential debates and in television advertising in key states. Business interests have funded ads that attack Edwards as a trial lawyer; Democrats reply that the North Carolinian’s legal career shows he sided with worthy plaintiffs against big corporations.
Numerous studies have analyzed malpractice lawsuits in recent years, producing data that both sides use to advance their arguments.
In California, one study found that the state’s malpractice liability cap has succeeded in saving money for doctors and hospitals. But those savings have come largely at the expense of severely injured patients and their families, the Rand Corp. said in a report released this year.
The study found California jurors were inclined to award far more in damages than the law allowed, once they had concluded that a doctor or hospital made a grievous error. For example, a jury awarded $78,000 for economic losses and $1.5 million in pain and suffering for a 42-year-old woman who underwent an unnecessary mastectomy after her fibrocystic breast condition was wrongly diagnosed as cancer. Under the law, the judge reduced her total award to $338,000 -- 78% less than the jury deemed appropriate.
Last year, the nonpartisan Government Accountability Office, an arm of Congress, said California-style limits had slowed the growth of insurance rates for doctors. For example, between 2001 and 2002, average premiums for three groups of doctors -- internists, surgeons and obstetricians -- grew by about 10% in states with caps on noneconomic damages of $250,000, compared with 29% in states without such limits, the GAO said.
But other analysts have said that factors such as the fluctuating value of investments by the insurance industry also are driving malpractice premiums.
Chen reported from Pennsylvania and Anderson from Washington. Times staff writers David Savage and Richard B. Schmitt contributed to this report.