Monday, September 27, 2004

Both candidates for president voice support — to varying degrees — for curbing frivolous lawsuits and otherwise reining in civil litigation that has grown to nine times the burden on the economy that it was 50 years ago.

Yet neither President Bush, who has been in office nearly four years, nor John Kerry, a senator for 20 years, has managed to follow through on any such reforms.

Mr. Kerry has actively thwarted efforts to curb lawsuits. Just this year, the Massachusetts Democrat — with running mate Sen. John Edwards of North Carolina, who earned more than $39 million as a personal-injury lawyer before joining the Senate in 1998 — twice helped block tort-reform legislation from getting a vote on the Senate floor.

Mr. Bush, who made litigation reform a centerpiece of his 2000 presidential campaign, won accolades for court reforms in Texas while governor there but has made little headway on the issue in Washington.

In 2002, fees and payments associated with lawsuits amounted to more than $233 billion, compared with $1.8 billion in 1950. Even after adjusting for inflation, the burden on Americans rose from $89 per person (in 2002 dollars) in 1950 to $809 in 2002.

Republicans say Mr. Bush supports several bills in Congress aimed at curbing frivolous lawsuits. But the Democratic minority — including Mr. Kerry and Mr. Edwards — are filibustering those bills in the Senate. According to his campaign, the president is eager to sign those reforms into law.

Twice in the past year, Mr. Kerry and Mr. Edwards have skipped votes to force a final up-or-down decision on a bill to limit class-action lawsuits, one of the most lucrative types of litigation, by forcing many such cases into the federal courts, which generally award less in these disputes.

Many lawyers have donated tens of millions of dollars to campaigns and other political action committees, including those controlled by Mr. Kerry and Mr. Edwards.

Mr. Bush has taken far less money from lawyers, according to filings with the Federal Election Commission. But, Mr. Kerry’s supporters say, Mr. Bush has accepted far more money from business and insurance-industry executives who stand to save millions of dollars annually through tort reform.

In an Ohio speech this summer, Vice President Dick Cheney blamed lawyers for a significant part of the skyrocketing cost of medical care.

“This problem doesn’t start in the waiting room. It doesn’t start in the operating room,” he said, after mentioning other causes as well. “This problem starts in the courtroom.”

He talked about an obstetrician from Akron who had never lost a judgment during two decades of delivering babies. Yet, his insurance premiums rose 400 percent in two years.

“Frivolous lawsuits are clogging the courts and delaying justice for those with real problems,” Mr. Cheney said. “Some states have done their best to confront the crisis on their own. Yet, individual states can only do so much.”

Mr. Bush supports, for example, capping the amount of noneconomic damages in lawsuits such as “pain and suffering” and “mental anguish” awards at $250,000. Mr. Kerry and Mr. Edwards oppose such caps, particularly in medical-malpractice suits against doctors and hospitals.

“We’re not putting a cap on fees in other kinds of [personal-injury] cases and [medical-malpractice] cases are the most time-consuming and the riskiest cases that lawyers do,” Mr. Edwards said in a 1995 interview with North Carolina Lawyers Weekly. “So they’re saying, ‘Let’s do a sliding scale that caps fees in the most complicated cases.’ It’s just illogical.”

It is just such a cap that is widely credited with lowering insurance premiums in Texas by more than 15 percent in two years.

Still, the Kerry campaign says it has a five-point “real plan for medical-malpractice reform.” Their first point listed is not a legal reform, however, but aims at limiting what the campaign calls collusion and price fixing among insurance companies to raise the cost of malpractice insurance.

One point that does pertain to malpractice reform is a requirement that “medical-malpractice claims first go before a qualified medical specialist to make sure a reasonable grievance exists.”

Proponents of tort reform say it’s a toothless reform, because most personal-injury lawyers in successful cases already call “qualified medical specialists” to testify in their cases. Even Mr. Edwards acknowledged in a 1995 interview that such pre-screening is unnecessary.

“Pre-screening as a concept is very good,” he said, “but it’s already done by every experienced malpractice lawyer.”

Another aspect of reform the Democrats support is to ban punitive damages — that is, “unless intentional misconduct, gross negligence or reckless indifference to life can be established.”

“That’s what punitive damages are,” said Gretchen Schaefer, spokeswoman for the American Tort Reform Association. “They’re monetary awards intended to punish defendants for intentional, malicious conduct.”

The other points are requiring states to provide nonbinding mediation of malpractice claims and to institute a “three-strikes” policy that would bar lawyers who bring three frivolous lawsuits from filing another suit for 10 years.

Earlier this month, House Republicans announced “John Edwards Appreciation Day” and introduced several tort-reform measures. One bill that passed the House with bipartisan support was aimed at reining in class-action lawsuits.

The bill would prevent lawyers with such cases from “forum shopping” — that is, filing their cases in states or localities with judges or juries known for granting huge awards. It also includes punishments for lawyers who file three or more frivolous lawsuits.

Kerry spokeswoman Kim Rubey, however, indicated that Mr. Kerry and Mr. Edwards will vote against the measure when it reaches the Senate, calling the bill “a political sham,” whose opponents include Supreme Court Chief Justice William H. Rehnquist.

A spokesman for the Bush campaign said Mr. Bush gladly will sign the bill into law if it reaches his desk.

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