REVIEW & OUTLOOK
Patients' Right to Sue
Tom Daschle goes to bat for the trial lawyers.
To sue or not to sue, that is the only relevant question holding up Congressional passage of something called a Patients' Bill of Rights this year. We in the United States seem to have arrived at the point in our social relations where many people, and certainly the entire Democratic Party, believe that no private institution will act in good faith absent the possibility of being torn to pieces by a lawsuit.
This, at least, is the premise beneath the Democratic patients' rights bill sponsored in the Senate by Ted Kennedy and North Carolina's John Edwards, a plaintiffs attorney. They have one Republican co-sponsor for this effort, the irrepressible John McCain.
Proponents would greatly expand the right to sue in state court, where juries already have shown they now believe the law deserves no more public respect than the corner lottery booth. Should a plaintiff have no success at the state level, or if he's unhappy with the amount awarded, he could then sue in federal court. There, Democrats would cap punitive damages at a mere $5 million. Senator Edwards, unsurprisingly, prefers no limit on federal damages but will settle for the five-mil cap. Senate Democrats also would allow these lawsuits to proceed even after an independent medical review board had determined that a HMO behaved properly and that the complaint had no merit. What's merit got to do with it?
Our view of what is going on here is well known. It is that one legacy of Bill Clinton's political model is to have made the national Democratic Party codependent with the unseemly world of the trial lawyers. No doubt all pols are in hock to someone, but to have one of the two major U.S. parties aligned in this particular way is corrosive to our politics. According to the Center for Responsive Politics, lawyers, led by the Association of Trial Lawyers of America, gave $124 million in the 2000 election cycle, which is up from $69 million in 1998 and $50 million in 1994. Nearly 70% of these donations--and in the case of ATLA, 90%--went to the Democrats.
And so we had the spectacle last week of new Majority Leader Tom Daschle threatening to hold the Senate in town through the Fourth of July holiday if the Republicans insist on resisting the plaintiffs bar's plan (under the cover of patients rights) to transfer money via the courts out of HMOs and into their own bank accounts, and from there into accounts for various Democratic election campaigns.
Fortunately the President has promised to oppose this effort to make the preeminent political ethic in American life essentially that which exists in front of a Las Vegas slot machine. This particular liability-enabling version of the patients bill of rights, Mr. Bush said recently, "won't become law." The White House last week was reportedly mulling a formal, written veto threat. Mr. Bush deserves credit for putting the focus of this bill's politics where it belongs.
Anyone who thinks patients need more rights of some sort to deal with HMOs should know that this would already be the law of the land, passed by Congress and signed by George W. Bush, were it not for the trial lawyers' insistence that Tom Daschle cut them a side of beef. The right to independent reviews, access to outside experts or specialists no matter what the HMO says, coverage for emergency medical care--all the perceived fixes for HMO horrors now have bipartisan support.
Even the medico-legal casino has bipartisan support, with Mr. Bush embracing the bipartisan Frist-Breaux measure that would cap Federal litigation payments at $500,000. This alternative also would sensibly require someone with a complaint to first exhaust independent medical reviews of their case before bringing a federal case. Additionally, the American Medical Association has signed on to the principle of patients' suing HMOs, which we guess means no one has to accord much sympathy anymore over the doctors' constant carping about malpractice litigation.
If a closely watched lawsuit in Florida is any indication, reform can't come soon enough. A federal judge in Miami partially spurned an effort by plaintiffs' lawyers--who are seeking class action status on behalf of some unsatisfied HMO members--to potentially multiply any potential damage award by claiming that insurance companies violated racketeering laws. This is precisely the Dumpster into which the plaintiffs lawyers would surely drag the health industry if Mr. Daschle wins them some open-ended "right to sue."
Not that it's impossible to find a light side in this strong-armers' ball. Asked for his thoughts last week, ATLA supremo Fred Baron announced, "This is not a bill about trial lawyers." Ask any one of 100 Senators if he believes that should Tom Daschle keep the Senate in lock-down July 4.
