Critical Condition

NRO’s health-care blog.

The Truth About Tort Reform


If the president is serious about bipartisan health-care reform, he must include real lawsuit-abuse reform that produces savings for the American people.

According to the Harvard School of Public Health, 40 percent of medical malpractice suits filed in the U.S. are “without merit.” Yet despite the frivolous nature of many of these suits, juries often award millions of dollars to plaintiffs — and their trial lawyers. These predatory suits amount to legalized extortion and require doctors to purchase malpractice insurance at great expense. A Department of Health and Human Services study found that unlimited excessive damages add between $70 billion and $126 billion annually to health-care costs.

Doctors are so worried about frivolous lawsuits that they order unnecessary — and expensive — tests and procedures. The Massachusetts Medical Society found that 83 percent of its doctors practice this sort of defensive medicine. The costs of litigation and defensive medicine are passed on to the patient in the price of health care.

That’s why some states, including my home state of Texas, have enacted tort reform to limit the amount of damages that can be awarded for pain and suffering. The result? More than 14,000 doctors have returned to Texas or set up new practices in the state. That means Texans pay less to have better health care and more options.

The success of state-enacted lawsuit-abuse reforms in reducing health-care costs shows why we need to enact nationwide legislation to deter frivolous malpractice suits. The president’s latest gambit is to play at bipartisanship by funding “demonstration projects” to study tort reform. But this is just a sham, because we already know tort reform works. We don’t need to test tort reform, we need to enact it.

So what’s the real reason behind Democrats’ opposition to tort reform? Former Democratic National Committee chairman Howard Dean got closer to the truth at a town-hall meeting when he was asked why tort reform was not included in the Democrats’ health-care overhaul. Dean candidly admitted that it was all about politics: “The reason why tort reform is not in the bill is because the people who wrote it did not want to take on the trial lawyers.”

But it’s more than just Democrats not wanting to take on the lobbying powerhouse of trial lawyers. It’s the fact that trial lawyers contribute millions of dollars to Democratic politicians. Limiting the amount of money trial lawyers can make from frivolous lawsuits in turn limits the amount of donations the Democratic party receives.

The top contributor by category to President Obama’s campaign was the legal industry, whose donations came to more than $43 million. As for Congress, more than 78 percent of the money given to Congress by lawyers, mostly from the plaintiffs’ bar, went to Democrats — almost $100 million.

By bankrolling Democratic politicians, trial lawyers have succeeded in preventing any lawsuit-abuse reforms from becoming part of health-care legislation, despite support for reform by a majority of Americans. A November 2009 Associated Press poll found that 54 percent of Americans favor lawsuit-abuse reform. According to the study, “support for limits on malpractice lawsuits cuts across political lines, with 58 percent of independents . . . in favor.”

Democrats’ refusal to consider lawsuit-abuse reform has nothing to do with what could reduce health-care costs for Americans. It’s about preserving their political piggy bank, which is filled up by trial lawyers. In fact, Democratic proposals — including the president’s new plan — don’t just exclude lawsuit-abuse reform; they actually include provisions to deter states from enacting reforms in the future.

Lawsuit-abuse reform works. It reduces health-care costs by decreasing the number of frivolous suits promoted by trial lawyers. And it empowers doctors to make the right decisions for their patients, while preserving a patient’s right to sue if they believe there has been genuine medical malpractice.

If the president is serious about finding a bipartisan solution to rising health-care costs, true tort reform should be the first item on the table, not the last. Anything less is a partisan proposal that panders to trial lawyers and liberal interest groups. That’s not the kind of change President Obama promised. It’s politics as usual.

– Rep. Lamar Smith, of Texas, is the ranking Republican on the House Judiciary Committee.


Subscribe to National Review