March 28, 2011
Cuomo and Tort Reform
Selling Out Injured Baby Rights
By RALPH NADER
New York State’s Governor Andrew Cuomo will be judged harshly by history if he doesn’t reverse his position supporting limiting the legal rights of brain damaged babies. Imagine a life-time $250,000 cap on pain and suffering and families having to endure a burdensome and humiliating struggle to get medical bills paid as they arise from an insurance funded entity.
Governor Cuomo is hiding behind the recommendations of his Medicaid Redesign Team, which has more than a sprinkling of hospital and industry lobbyists, and which was the stalking horse for this heartless proposal.
Why you might ask would Andrew Cuomo, the son of Mario Cuomo, a man widely regarded as a champion of the underdog, advance such a mean-spirited and wrong-headed measure?
The short answer: political expediency. Credible observers say Governor Cuomo needs to give the health insurance industry a financial benefit in exchange for the health insurance industry not economically punishing hospitals workers. And to top it off with a touch that would make Machiavelli proud, the Governor placed this initiative in his budget proposal. This means that for the New York State Assembly and Senate to vote against this draconian measure used to seal a political deal, the legislators would have to vote down the entire state budget.
It is shameful that the Governor would use his creativity and intellect to help the health industry at the expense of helpless babies who are victims of medical malpractice.
Many in the health care and insurance industry seem to regard the civil justice system as a nuisance that threatens to destroy our economy and way of life. In reality, America’s civil justice system plays an indispensable role. When the rights of injured consumers are vindicated in court, our society benefits in countless ways: compensating victims and their families for shattering losses (with the cost borne by the wrongdoers rather than taxpayers); preventing future injuries by deterring dangerous health care and other practices, spurring safety innovation; and educating the public to risks associated with certain products and services. These legal rights provide society with its moral and ethical fiber by defining appropriate norms of conduct.
Governor Cuomo needs to review the facts on medical malpractice. First he should know that supporters of tort “deform” invoke one myth after another: a litigation explosion, juries automatically ruling in favor of plaintiffs and routinely awarding punitive damages, an economy shattered by these awards. Each of these notions is demonstrably false.
Only a tiny percentage of persons injured bring lawsuits, and an even tinier percentage of those who do receive large verdicts. Limiting victims’ rights is an anti-democratic solution to a trumped-up problem.
Second, a driving force behind this dishonest campaign is the insurance industry. Whenever, over the years, insurers face low interest rates and declining stock investments, they start the drumbeat against justice for victims. They’ve made a particular cause against liabilities for medical malpractice. Instead of demanding disciplinary action against incompetent physicians, urging medical associations to police their own ranks, the insurance industry lobbies state and federal legislatures to curtail victims’ rights and remedies in courts of law. At the insurance industry’s behest, their physician policyholders have joined the call.
Why do physicians allow themselves to be tools of insurance companies that gouge them especially when they are not among the incompetent few who account for most malpractice claims (five percent of doctors are involved in roughly 50 percent of malpractice payouts)? One answer is that insurance companies frighten physicians with false data suggesting that malpractice suits run amok. A persuasive case can be made that there are far too few malpractice suits. The 1999 Institute of Medicine study estimated that gross malpractice in hospitals alone takes up to 98,000 American lives a year and causes hundreds of thousands of serious injuries. Yet various studies show that roughly 90% of people harmed by medical malpractice do not even file suit.
If you total the entire amount of premiums physicians pay in a year for their malpractice insurance and divide it evenly by all the physicians practicing in the United States, the average annual premium is less than $10,000 per doctor. Very manageable. So why are some doctors paying $50,000 or $100,000 a year to their malpractice insurers? Because the profit hungry companies have learned to over-classify their risk pools, thereby charging exorbitant amounts to specific specialists like obstetricians and orthopedic surgeons. In addition, because insurers fail to surcharge the few incompetent physicians in these specialties, the competent specialists pay for more than they should.
There is another benefit to the insurance industry from this kind of over-classification. When obstetricians are gouged, they protest loudly, threaten not to deliver babies, and sometimes actually go on strike. This makes great television — crying babies and physicians in their garb blaming lawyers – and deflects blame from the insurers, who laugh their way to the bank. In recent years, their profits have soared.
Neither organized medicine nor the insurance companies go after bad doctors. The AMA’s web site does not report any data about incompetent or crooked physicians, and the insurance companies have shown little interest in loss prevention. Instead, both physicians’ and insurers’ lobbies fund and press legislators to enact laws that politicize the courts, tie the hands of judges and juries, and make it harder for innocent people or children to receive just compensation for their tragic suffering.
Isn’t it time to focus on malpractice prevention instead of trying to hamstring hundreds of thousands of Americans harmed by their doctors’ negligence? Are malpractice awards the national crisis physicians and insurers suggest? In fact, the entire medical malpractice insurance industry payout to victims in verdicts and settlements is about $5 billion a year (substantially less than the amount our the country spends on dog food). Isn’t it time to focus on malpractice prevention instead of trying to restrict the rights of hundreds of thousands of Americans harmed by their doctors’ negligence?
We need to ask whether proposed reforms level the playing field or tilt an already un-level field even further by making it more difficult for wrongfully injured citizens to receive justice from the perpetrators of their harms.
The tort deform movement amounts to a perverse rewriting of history. Tort law produced decades of slow but steady progress in state after state respecting the physical integrity of human beings against harm by recognizing that even the weak and defenseless deserve justice. Instead of seeing this evolution as a source of national pride, a coalition of insurance companies, corporate defense lobbies, and craven politicians depict it as an accountability that must be stripped.
If this campaign succeeds, the results are sadly predictable. Tort reform means less deterrence, which means more injuries, more uncompensated victims, and tremendous overall costs transferred to society.
Send the governor a letter and remind him an important part of being a leader is defending the defenseless. His address is:
The Honorable Andrew M. Cuomo of New York State
State Capitol Building
Albany, NY 12224
Ralph Nader is the founder of the Center for Study of Responsive Law, in Washington.