Bush Takes Aim at Tort Reform, a Moving Target

Business groups have ranked it the nation’s No. 1 “judicial hellhole,” where the threat of malpractice cases has caused many physicians to flee. President Bush has chosen it as the place to launch his second-term campaign to restrain the cost of civil litigation.

Yet in Madison County, Ill., where Bush will appear today to push for congressional passage of a $250,000 cap on jury awards for pain and suffering, there are signs the medical malpractice crisis may be easing. And before the president leaves town, Kim Cruse would like to tell him about her mother.

Four years ago, 57-year-old Barbara Willis died of complications from back surgery at a Madison County hospital. Cruse sued the hospital and several doctors, alleging, among other things, that her mother was left unattended for hours. The defendants settled out of court, for substantially more than $250,000.

Cruse said that she voted for Bush in November, and that she thought he was doing a good job as president. But she fears, she said, that he has been misinformed by business backers about medical litigation, and she has joined with other plaintiffs to request a meeting with the president to argue against the cap on noneconomic damages in malpractice cases.

“My mother was my best friend. We did everything together. The whole reason she was getting the surgery done was so she could enjoy her grandchildren,” Cruse said.

“Now she’s not enjoying anything. No amount of money could have fixed the situation, but I don’t want somebody telling me how much my mother is worth.”

Sentiments like that underscore the tricky politics of tort reform, which Bush has elevated to the top of his list of second-term legislative priorities, along with an overhaul of Social Security and simplification of the U.S. tax code. Although Republican gains in the Senate appear to have improved the prospects of passage -- they now hold 55 of the chamber’s 100 seats -- there is still considerable opposition to legislation that would limit the legal and financial liability of medical practitioners and other business interests.

Bush is pushing tort reform on three fronts: Besides trying to cap damages in medical malpractice cases, he wants Congress to restrict the scope of class-action lawsuits and to take steps to curtail asbestos-related litigation. The White House contends that excessive damage awards have become an onerous burden for business and a drag on the U.S. economy.

Madison and adjacent St. Clair County, Ill., both of which lie across the Mississippi River from St. Louis, have achieved notoriety in all three categories. The American Tort Reform Assn., a business-backed group, ranked them first and second place, respectively, on its list of the worst civil court systems in the country last year. (Los Angeles came in ninth.)

Tort reform advocates said elected judges in both counties were beholden to trial attorneys who contributed to their campaigns, and had turned their courts into magnets for litigation from around the country. They cited large numbers of class-action, asbestos and malpractice lawsuits filed in both venues.

Bush will call attention to malpractice awards in a speech today in Collinsville, a Madison County community where he will meet with doctors and patients who back his push for damage caps.

White House officials said it would be the first in a series of efforts to prod the new Congress to act on the issue. The House has voted several times to cap damages for pain and suffering in malpractice cases, but the legislation has stalled in the Senate, where Republicans lack the 60 votes needed to overcome filibusters by Democrats.

“This is one of his top issues,” said White House spokesman Trent Duffy. “The president talked about medical liability in nearly every speech he gave during the course of the campaign.... It’s not only part of his healthcare reform plan, but his economic reform as well.”

Duffy said the White House had decided to address the issue in Madison County because of its history of “egregious” jury awards and evidence that the high cost of medical malpractice insurance was causing doctors to leave the region. On Friday, Bush will travel to Michigan to talk about asbestos litigation.

According to tort reform advocates, 161 physicians have left their practices in Madison and St. Clair counties over the last two years, partly because the cost of medical malpractice insurance has risen much higher there than in areas where the threat of large jury awards is not as great.

“The cost of frivolous lawsuits, in some cases, make it prohibitively expensive for a small business to stay in business or for a doctor to practice medicine,” Bush told participants in a White House economic forum last month. “These lawsuits are driving really fine, competent people out of the practice of medicine.”

Trial lawyers accuse tort reform advocates of exaggerating the extent of the problem, even in Madison and St. Clair counties. The number of medical malpractice cases filed in the two venues declined from 140 in 2003 to 102 in 2004, they said.

Most of those cases were dismissed or settled out of court: Over a seven-year period ending in 2003, six cases in the two counties resulted in jury verdicts favoring plaintiffs, according to court records cited by trial attorneys.

“They keep talking about these big awards,” said Judy Cates, a trial attorney who has represented both patients and doctors in Madison and St. Clair counties. “The reality is they don’t exist.”

Cates and other opponents of damage caps acknowledged that the high cost of malpractice insurance had created serious problems for physicians in the region, but they blamed the phenomenon on lax regulation of insurance companies in Illinois.

Doug Heller, director of the California-based Foundation for Taxpayer and Consumer Rights, took issue with tort reform advocates who say malpractice insurance costs have moderated in California since 1975, when the state adopted its own $250,000 cap on noneconomic damages.

For the first 13 years after the cap was enacted, insurance rates continued to rise, Heller said. It was not until state voters approved a 1988 ballot proposition mandating a rate rollback and making it easier to challenge future rate hikes that the problem began to subside, he said.

“What we have learned unequivocally is that caps on damages do not reduce premiums for doctors,” Heller said. “If President Bush really cares about lowering premiums for doctors, he needs to take on the insurance industry, and he has not proposed to do that.”