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Originally published Friday, January 14, 2005 at 12:00 AM

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Guest columnist

Easing the pain and suffering of medical-malpractice lawsuits

Congressional Democrats could use a spoonful of sugar this week to help swallow their medicine. With tort reform on top of the Bush administration's to-do list, a new poll suggests...

Special to The Times

Congressional Democrats could use a spoonful of sugar this week to help swallow their medicine. With tort reform on top of the Bush administration's to-do list, a new poll suggests Americans are solidly in favor of capping jury awards against the health-care industry.

The poll, done by the Kaiser Family Foundation and the Harvard School of Public Health, came the week after Presdient Bush gave speeches in Illinois to focus attention on the need for medical-malpractice reform. While only a quarter of those polled said lawsuits were their top health-care policy concern, 63 percent said they would support a law to limit plaintiffs' nonmedical compensation.

Bush's malpractice bill would cap damages for pain and suffering at $250,000, as well as limit liability for drug companies whose products were approved by the Food and Drug Administration, but it's hardly the first attempt to reform the system. On several occasions, the House has passed medical-malpractice reform only to see the bill die in the Senate.

Now, with trial lawyers looking at Vioxx and Celebrex as the next potential windfalls in the torts lottery, stakes are particularly high to prevent any reform this year.

Todd Smith, president of the Association of Trial Lawyers of America, characterized the measure, which would limit punitive damages, as prohibiting "any punishment for the makers of dangerous drugs like Vioxx." Massachusetts Sen. Ted Kennedy chimed in to call Bush's plan "nothing but a shameful shield for drug companies and HMOs (that) hurt people through negligence."

But negligence is a loaded word for companies that typically spend years and millions of dollars getting their products tested for safety and effectiveness by federal regulators. Under Kennedy's formula, all the good faith and lawful obedience to oversight authorities like the FDA is worth a can of beans if plaintiff attorneys want a go at it.

And once you get past the demagoguery, support for tort reform is broad and deep. About half of states across the country have instituted caps on legal-liability payouts. Mississippi, one of the worst actors in the damages jackpots, did a major overhaul at the behest of Gov. Haley Barbour last summer. That state had become such a popular forum for lawsuits that the local Chamber of Commerce actually warned businesses about investing in the state.

In Pennsylvania, premiums for malpractice insurance have become a prohibitive cost for doctors entering the market. Because the state has no ceiling on its damage awards, costs continue to rise. Fearful of a doctor shortage, Democratic Gov. Ed Rendell has suggested subsidizing doctors' premiums so they can stay in business. But wouldn't it be better to address why the premiums are so irrationally high in the first place?

States such as Maryland are looking at their own solutions as well, but the benefit of a federal law is that it will weed out some of the more-frivolous suits and deter the jury-shopping that often attends multidistrict litigation.

After all, if the goal is safety, there are far-better-targeted methods than the indiscriminate rash of lawsuits that raise costs and drive good players out of the business. Litigating medical-safety issues, whether against doctors or drug companies, only succeeds in meting out justice arbitrarily and at great cost to consumers.

Far more effective than the lawsuits that raise premiums across the board is the vigilance of state medical boards in revoking the licenses of the real bad actors who routinely harm patients through incompetence or neglect. In Massachusetts, 0.25 percent of doctors are responsible for 13 percent of claims. The state has instituted a law putting doctors with three or more malpractice settlements under automatic review.

Critics of tort reform say capping damages warps the canvas in favor of business and against consumers. And most people agree that, as a civil-justice issue, frivolous lawsuits are a bigger problem than the actual level of damages. According to the poll, 73 percent would support having claims inspected by an independent medical board before they were allowed to proceed.

But it's the size of the payouts that brings the armies of lawyers. And the number of eager lawyers that bring the politicians. The lobbying group for trial lawyers has spent $24 million on federal elections in the past 15 years, with nearly 90 percent of that money going to Democrats. But the cost to us is much higher. Overall, litigation costs the country some $200 billion a year — roughly 2 percent of GDP.

With health-care costs a top concern for most Americans, managing the slice against doctors and drug companies is a good place to start.

Collin Levey writes Fridays for editorial pages of The Times. E-mail her at

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