Policy Memo: John Kerry And John Edwards' Pro-Trial Lawyer Record Is Driving Up Health Care Costs

George W. Bush ^ | October 5, 2004

[RWR8189]

MEMORANDUM
FROM: BC'04 POLICY DEPARTMENT

When it comes to safeguarding access to health care, Americans will face a clear choice at the polls in November.  Both candidates agree that America is losing its doctors and experiencing a crisis in access to health care.  Only President Bush, however, has provided a proven plan to reduce health care costs and retain our nation’s doctors.  No candidate can be pro-patient, pro-doctor, and pro-trial lawyer at the same time.  John Kerry made his choice when he selected John Edwards as his running mate.

JOHN KERRY HAS NO PLAN TO REDUCE MEDICAL LIABILITY COSTS – HIS PLAN WOULD LIKELY INCREASE LITIGATION AND INCREASE LAWYER FEES

• The Kerry-Edwards Medical Liability Reform “Plan” Does Nothing To Address The Real Problem: The Exploding Costs Of Medical Liability Litigation.  Kerry and Edwards say that the way to cut down on junk lawsuits is to require that medical liability cases be reviewed by newly created expert panels before they can be filed in court, and then to later hold lawyers accountable if they bring frivolous cases.  But their plan will not reduce costs:

• Expert Panels Can’t Prevent Frivolous Suits.  Expert panels cannot constitutionally prevent cases from being filed in court even when they are found to have no merit.  Thus, panels cannot stop trial lawyers from filing as much litigation as they want to. (Catherine T. Struve, “Expertise In Medical Malpractice Litigation: Special Courts, Screening Panels, And Other Options,” 10/03, Medical Liability In Pennsylvania Web Site, http://medliabilitypa.org/research/struve1003/, Accessed 10/5/04 )

• Lawyer Sanctions Already Exist, But Aren’t Stopping The Crisis.  Rule 11 of the Federal Rules of Civil Procedure already provides for sanctions against attorneys for filing frivolous lawsuits, and most states have adopted similar or identical measures.  The threat of sanctions has not stopped trial lawyers from driving the nation’s medical system into crisis. (Ron W. Widener And George J. Vogler, “Court Sanctions For Frivolous And Improper Litigation,” 1993, Architects/Engineers Professional Network Web Site, http://www.aepronet.org/pn/vol6-no2.html, Accessed 10/5/04)

• Kerry’s Plan Would Add Bureaucracy, Add Costs, Delay Justice.  The Kerry-Edwards plan just adds bureaucracy and will likely increase, rather than decrease, litigation costs.  A panel system would require that every case be tried twice, first by an ultra-expensive panel of doctors and trial lawyers, then by a jury.  Extra time, extra resources, and (of course) extra attorneys’ fees, all for a panel decision that has zero effect.  It also delays the recovery of plaintiffs who have truly been injured.

John Kerry Is In The Pocket Of The Trial Lawyers, And Running On The Trial Lawyer Ticket

• At Least Ten Times In The Last Decade, Kerry Opposed Or Voted To Block Medical Liability Reforms.  (H.R. 956, CQ Vote #137: Motion Rejected 39-61: R 10-44; D 29-17; I 0-0, 5/2/95, Kerry Voted Yea; H.R. 956, CQ Vote #140: Motion Agreed To 65-35: R 24-30; D 41-5, 5/2/95, Kerry Voted Yea; H.R. 956, CQ Vote #141: Motion Agreed To 56-44: R 13-41; D 43-3, 5/2/95, Kerry Voted Yea; H.R. 956, CQ Vote #144: Passed 53-47: R 48-6; D 5-41, 5/2/95, Kerry Voted Nay; H.R. 956, CQ Vote #151: Motion Rejected 46-53: R 44-10; D 2-43; I 0-0, 5/4/95, Kerry Voted Nay; H.R. 956, CQ Vote #152: Motion Rejected 47-52: R 45-9; D 2-43; I 0-0, 5/4/95, Kerry Voted Nay; H.R. 956, CQ Vote #160: Motion Agreed To 54-44:: R 46-7; D 8-37, 5/10/95, Kerry Voted Nay; H.R. 956, CQ Vote #161: Passed 61-37: R 46-7; D 15-30, 5/10/95, Kerry Voted Nay; S. 1052, CQ Vote #212: Motion Agreed To 52-46: R 2-45; D 49-1; I 1-0, 6/29/01, Kerry Voted Yea; S. 812, CQ Vote #197: Motion Agreed To 57-42: R 6-42; D 50-0; I 1-0, 7/30/02, Kerry Voted Yea)  

• Since 1989, Kerry Has Received $22,289,546 From Lawyers, Most Of Any Senator In That Time Period.  (Lawyers/Law Firms: Money to Congress,” Center For Responsive Politics Website, http://www.opensecrets.org/industries/summary.asp?Ind=K01&recipdetail=S&sortorder=A&Cycle=All, Accessed 10/5/04 )

• Kerry's Presidential Campaign Has Received $19,404,822 From Lawyers.  (“Lawyers/Law Firms: Money to Congress,” Center For Responsive Politics Website, http://www.opensecrets.org/industries/summary.asp?Ind=K01&recipdetail=S&sortorder=A&Cycle=2004, Accessed 10/5/04 )

America Is Experiencing A Crisis In Access To Health Care.

• Doctors Are Being Driven Out Of Business, And Patients Are Losing Access To Health Care.  Faced with skyrocketing insurance costs, many doctors have stopped practicing, reduced their services, or relocated their practices to other states.  (The Manhattan Institute, Trial Lawyers, Inc.:  A Report on the Lawsuit Industry in America, 2003)

• According To The American Medical Association, There Are Now 20 States Experiencing A Medical Liability Crisis. (“Medical Liability Crisis Map,” American Medical Association, 6/14/04 , http://www.ama-assn.org/ama/noindex/category/11871.html, Accessed 10/5/04 )

• Even Senator Edwards Acknowledges The Crisis:  COURIC: “[Doctors] have to either move or they have to switch professions.” EDWARDS: “Sure.” COURIC: “I mean, isn't something wrong with this picture?” EDWARDS:  “Yeah, there's something wrong with the picture.… And what doctors are facing is very real, what you're describing with doctors who face rising malpractice premiums.”  (NBC’s “Today,” 7/14/04 )

Personal Injury Lawyers Are Driving Up The Cost Of Medical Liability Insurance… And Driving Doctors Out Of Business.

• The GAO Has Determined That Lawsuits Are The #1 Cause Of Rising Liability Premiums.  “Increased losses on claims are the primary contributor to higher medical malpractice premiums rates.”  (“Medical Malpractice Insurance: Multiple Factors Have Contributed To Premium Rate Increases,” General Accounting Office, 10/10/03 , www.gao.gov, Accessed 10/4/04 ) 
  
  
• The Department Of Health & Human Services Has Found That The Cause Of The Crisis Is Our Broken Litigation System. “The crisis that we face--as consumers, taxpayers, or health care professionals--is caused by our expensive litigation system, which often finds liability on a random basis and increasingly imposes very large judgments for non-economic damages.” (“Addressing The New Health Care Crisis:  Reforming The Medical Litigation System To Improve The Quality Of Health Care,” Department Of Health And Human Services, 03/03/03 , www.hhs.gov, Accessed 10/4/04 )

Women Are Particularly Hard-Hit By The Crisis, As The Doctors That Are Being Lost The Fastest Are Ob/Gyns.

• OB/Gyns Are Being Lost At An Accelerated Rate:  The American College of Obstetricians and Gynecologists now lists 23 “Red Alert” states where availability of physicians to deliver babies is threatened, up from 16 just two years ago.  “Obstetricians face more suits than any other specialty.… The average award by juries in such cases is about $1 million.” (“Addressing The New Health Care Crisis: Reforming The Medical Litigation System To Improve The Quality Of Health Care,” Department Of Health And Human Services, 3/3/03, www.hhs.gov, Accessed 10/5/04; American College of Obstetricians and Gynecologists, “ACOG's Red Alert On OB-GYN Care Reaches 23 States,” Press Release, 8/26/04)

• In Many States Maternity Wards Are Closing, OB/GYNs Are Leaving:  In Pennsylvania, at least 7 maternity wards have closed in the last three years, and at least 265 OB/GYNs have left the state, retired, or limited their service.  Similarly, at least 8 maternity wards have closed in Florida, and at least 180 OB/GYNs are no longer delivering babies in the state. (“County Specific Impact Report,” Florida Hospital Association Web Site, 8/6/03 , http://heal-fl-health-care-pdf.netcomsus.com/CountybyCountyImpacts.pdf, Accessed 10/5/04 ; “Pennsylvania’s Disappearing Doctors,” Concerned Citizens For Care Web Site, http://www.concernedcitizensforcare.com/facts.htm, Accessed 10/5/04 )

• Women Have Even Been Forced To Give Birth By The Side Of The Road!  In Arizona, Melinda Sallard gave birth on a desert highway while traveling to the only maternity ward within 600 miles.  The hospital where she had received prenatal care, mere minutes from her home, was forced to close its maternity ward because of skyrocketing medical liability costs. (“There Is A Serious Medical Crisis In Arizona,” Doctors For Medical Liability Reform Web Site, http://www.protectpatientsnow.org/114.html, Accessed 10/5/04 ; NBC’s “Nightly News,” 5/8/02 )

President Bush Has Advanced A Proven Plan To Reform The Medical Liability System.

• President Bush’s Plan For Medical Liability Reform: 
  • Allow plaintiffs unlimited compensation for economic losses;
  • Limit non-economic damages to a reasonable amount ($250,000);
  • Provide that defendants pay judgments in proportion to their fault; and
  • Limit punitive damages to reasonable amounts (up to the greater of two times economic damages or $250,000).

The President’s Plan Has Proven Successful At Containing Costs And Retaining Doctors.

• States With Caps On Non-Economic Damages Have Experienced Considerably Smaller Insurance Losses Per Physician Than States Without Caps.  “[S]tates with noneconomic damage caps have much lower NPDB losses per physician than do states without caps.  Indeed, losses per physician in states with caps averaged 46 percent lower than states without caps.” (Richard Biondi And Arthur Gurevitch, “The Evidence Is In,” Contingencies, 11/03)
  
  
• California, Which Enacted Caps In 1975, Has Fared Far Better During The Malpractice Crisis Than Most Other States.  As documented by the Department of Health and Human Services, since 1975, when California’s cap was enacted, California’s medical liability insurance rates have increased at a far slower rate than the national average – 167% for California compared to 505% nationwide. (“Addressing The New Health Care Crisis: Reforming The Medical Litigation System To Improve The Quality Of Health Care,” Department Of Health And Human Services, 3/3/03 , www.hhs.gov, Accessed 10/5/04 )

 

• Studies Show That Reasonable Caps On Non-Economic Damages Reduce Health Care Costs.  Studies by the Department of Health and Human Services and the Joint Economic Committee show that medical liability reform like that the President proposed “could save consumers between $60 billion and $108 billion per year in health care costs, save taxpayers an additional $28 billion annually, and allow another 3.9 million Americans to afford health insurance.” (“Addressing The New Health Care Crisis,” Department Of Health And Human Services, 3/3/03 , www.hhs.gov, Accessed 10/5/04 ; “Liability For Medical Malpractice: Issues And Evidence,” Joint Economic Committee, 5/03)
  
  
• Health Insurance In Crisis States Like Massachusetts And North Carolina Is More Expensive Than In States With Non-Economic Caps.  The average cost of a single-coverage health insurance policy in California, which imposed meaningful medical liability caps in 1976, was $2,365.17 in 2000, well below the national average of $2,654.67.  By contrast, Massachusetts and North Carolina – the home states of Senators Kerry and Edwards, neither of which have meaningful caps – both rung in above the national average, at $2,718.85 (MA) and $2,670.17 (NC) respectively.   (“Health Care Costs: State By State Data,” Affordable Care USA Web Site, www.affordablecareusa.org/statebystate.html, Accessed 10/5/04 )
  
  
• States With Caps On Non-Economic Damages Have Experienced Considerably Smaller Insurance Losses Per Physician Than States Without Caps.  “[S]tates with noneconomic damage caps have much lower NPDB losses per physician than do states without caps.  Indeed, losses per physician in states with caps averaged 46 percent lower than states without caps.” (Ricard Biondi And Arthur Gurevitch, “The Evidence Is In,” Contingencies, 11/03)

• Reasonable Caps On Non-Economic Damages Significantly Reduce Liability Premiums. Over the two-year span of 2000 and 2001, the rate of increase of medical liability insurance premiums in states with caps of $350,000 or less on non-economic damages (12%) was less than half the rate of increase of premiums in states without caps (45%).  (“Addressing The New Health Care Crisis: Reforming The Medical Litigation System To Improve The Quality Of Health Care,” Department Of Health And Human Services, 3/3/03 , www.hhs.gov, Accessed 10/5/04 )

[Dems_R_Losers]

If Bush and Cheney do not find at least a dozen ways to get this information into the next two debates, they will have really blown it. This stuff moves votes. Kerry and Edwards think the answer is socialized medicine and no brakes on trial lawyers. Only about 5% of the population agrees with them.

[donozark]

Edwards sued the Red Cross THREE times! That pretty much describes what a rat-bastard he is!

[groanup]

Great stuff. Bump.

[groanup]

Bump.

[oyez]

One of the lead stories here is that there is a shortage of flu vaccine this fall. Why? It is not manufactured in the USA anymore. Why? U.S. companies do not want to face the liability anymore. Why? John Edward's guild.