Tort Reform: Remedy or Red Herring?

"In the state of nature… all men are born equal, but they cannot continue in this equality.  Society makes them lose it, and they recover it only by the protection of the law."
Charles de Montesquieu

In the ongoing debate over health care reform, critics on the right are increasingly citing the lack of tort reform as a major deficiency of the current proposals floating around the halls of Congress.  Instead of focusing on truly conservative solutions to our nation’s mounting health care crisis, Republican lawmakers and pundits are playing the same old song-and-dance―blaming ballooning health care costs on trial lawyers.  This red herring tactic is a classic example of politicians trampling principle in pursuit of politics.  In this case, Republicans moonlighting as "conservatives" seek to use tort reform to shield corporate malefactors (who also happen to be their financial benefactors) from full accountability for their wrongdoing.  In so doing, they are undermining a bedrock principle of our nation’s justice system.

For years, Big Business and the U.S. Chamber of Commerce have spent millions of dollars in a public relations campaign aimed at demonizing trial lawyers, portraying them as unethical con-artists out to game the system.  These corporate interests have a vested interest in keeping the tide of public opinion running against trial lawyers because it deflects attention from the widespread problem of negligent and reckless conduct that injures consumers.  This "shoot the messenger" tactic not only enables businesses to avoid financial accountability for wrongdoing―it deliberately undermines the people’s civil liberty.

The reality is that trial lawyers are the people’s first line of defense to secure redress of grievances for private or civil wrongs committed against them.  The most highly publicized of these kinds of cases usually involve David and Goliath-type scenarios―think of the massive frauds committed by WorldCom, Enron, or Bernie Madoff and you get an idea why trial lawyers are essential to securing justice for those wronged at the hands of well-heeled rogues with deep pockets and limitless legal resources.  And yes, sometimes these cases involve substantial claims against doctors or hospitals accused of malpractice.

Despite unfair characterizations to the contrary, medical malpractice is no joke.  Every day thousands of Americans walk into doctors’ offices, emergency rooms, and operating rooms trusting their lives to the expertise and integrity of the medical system.  Errors in diagnosis, misread charts, medication errors… all can cause irreparable harm to their victims.  And these kinds of accidents happen often―far more than Republican advocates of "reform" are willing to admit and far more than most people realize.  According to several studies conducted over the last decade, up to 98,000 people die every year as a result of an estimated 15 million instances of preventable medical errors.  These statistics place death by malpractice as the 6th leading cause of death in the United States.

For the victims and their families, the tragedy inflicted as a result of medical malpractice is very real, and the process of seeking a just remedy can be overwhelming.  It is for precisely these kinds of situations that the 7th Amendment to the United States Constitution guarantees all Americans the right to a fair trial before a jury of their peers.  This right is a foundational principle of our civil liberty and should be a core tenet of conservatism because it affirms the responsibilities citizens have in a free society and the accountability of all before the law.

Nevertheless, the importance of the civil justice system and the right to trial by jury is poorly understood by many conservatives because trial lawyers are constantly demonized by special interests seeking to evade justice.  Many Republicans have been wrongly led to believe that tort "reform" is some kind of Reaganesque trickle-down solution to the high cost of insurance and the high cost of medical care.  The facts, however, don’t support such a notion.  Skyrocketing insurance premiums are not a result of malpractice litigation, and the high cost of medical care stems more from "offensive medicine" (profiteering by doctors seeking to make an extra buck), rather than "defensive medicine" purportedly resulting from fears of malpractice suits.

In 2007, the Congressional Budget Office estimated that costs associated with medical malpractice claims only amounted to 2% of overall health care spending.  Furthermore, multiple studies suggest that the high cost of medical insurance has virtually no correlation with the frequency or amount of malpractice payouts but is actually a result of insurance companies playing the market and―in some cases―intentionally misrepresenting the influence of malpractice payouts in order to keep premiums high.  Doctors are not fleeing the medical profession from fear of lawsuits, and those who are sued for medical malpractice are often permitted to continue working with little to no professional censure for the harm they inflicted.

The truth is that corporate moguls push for tort reform because they have little use for a civil justice system that puts the little guy on the same plane as the rich and powerful. These so-called fiscal conservatives don’t like equal justice.  They want preferential treatment―something they are accustomed to getting from politicians because of their hefty campaign contributions.

Conservatives need to educate themselves about the importance of a civil justice system that protects everyone and treats all litigants―rich and poor alike―as equals before the law.  Furthermore, true conservatives ought to resist attempts to federalize tort law and impose one-size-fits-all solutions to "problems" that are, in large part, the fictional creations of special interest lobbyists seeking to enrich the coffers of their wealthy clients.  Any change in medical malpractice laws should occur at the state level and be tailored to meet conditions in the individual states.  The people in Topeka may approach the same problem differently from the folks in Tallahassee.  They may be experiencing different problems, or perhaps, none at all.  In any event, the residents of Attapulgus, Georgia don’t want Chuck Schumer and Olympia Snow dictating the remedy they can pursue when a doctor leaves a pair of scissors in the site of their incision or causes avoidable brain damage to their newborn.

Tort reform subsidizes wrongdoing by shielding wrongdoers from accountability for the consequences of their misconduct.  It is an affirmative action program for corporate miscreants.  Incorporating tort reform into health care reform will do nothing to cut medical costs.  It is, however, guaranteed to result in more, not fewer, cases of medical malpractice. Furthermore, federalizing tort laws will only result in the accretion of more power in the hands of the central government and the emasculation of the rights of states and individuals.

If Republicans are truly sincere in their commitment to protecting the rights and liberties of the American people against more and bigger government, they should resist any attempt to federalize the laws of medical malpractice.

Ken Connor


Ken Connor is the Chairman of the Center for a Just Society. An esteemed attorney, Connor is affiliated with the law firm of Marks, Balette, & Giessel, a firm nationally known for its successful representation of victims of nursing home abuse and neglect.

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  • Joe DeVet

    This man is full of flim-flam, and let’s not get sucked into his flawed set of arguments.

    First, no responsible politician or commentator is claiming that tort reform is the solution to the problem. However, we make a valid claim that oversized malpractice settlements, as well as overfrequent suing of doctors for any negative outcome adds at least tens of billions of wasted dollars to our annual health care bill.

    The point of those who cite lack of tort reform is simply that this must be an integral part of an overall solution to whatever ails health care, and it is missing in a bill which claims to be that final solution. In a debate in which the economic, technical and ethical parameters are very difficult to clarify in our sound-bite public square, this is at least a clear example of the fraud inherent in the proposed health-care bill. That’s why it is cited–not because tort reform is the whole answer.

    Second, trial lawyers contributed nothing to the problem of Enron and Madoff. They did nothing to prevent the disasters, and the small recoveries which may have been achieved were skimmed to the tune of 30-40% contingency fees. The only group whose problems were really “solved” by trial lawyers in these instances were the trial lawyers’ kids, who got a Lexus instead of just a BMW for their 16th birthdays as a result.

    Third, no one is saying that all trial lawyers are to blame. My own daughter is a trial lawyer, and I have the utmost respect for her work. The medical malpractice specialists who sue and sue again regardless of merit, forcing settlements by doctors and their insurance companies just to avoid legal costs, taking a huge cut of any settlement in “malpractice” cases are the source of much waste in our health care system.

    Fourth, let’s remember that it is the trial lawyers and their associations who helped get the pro-abortion Democrats elected last year. Obama and other Democrats benefited from millions put into their election war chests by trial lawyers who then demand, and get, favorable treatment for their extravagant tort claims. It is the trial lawyers who helped put us into this present situation, where socialized medicine and all its attendant evils, including increased public funding for abortion, are staring us in the face.

    Let every pro-life Catholic remember this.

  • mamreilly

    Mr. Connor,

    No, men are not born equal in the eyes of the world. Each is given different talents, weaknesses, strengths, personalities, etc. And no, it is NOT the protection of law, as Mr. Montesquieu states in error, that “returns” that equality. The equality is derived from the fact that God sees us as equal in His eyes.

    Suing another for a wrong is borderline sinful. It denies our requirement to forgive and it enables the sinful desire for revenge. It is inconsistent with Catholic teaching and is uncharitable at best.

  • christymomof3

    1. Tort reform means simply that only real damages (including medical expenses, special care even if for a lifetime, and loss of income, again even for a lifetime) may be recovered in a lawsuit, not the millions and millions of dollars in “punitive damages,” which is truly just revenge. The patient who files and loses a frivolous claim has to reimburse the doctor for legal expenses. (Frivolous? I know a doctor who was sued by a patient who claimed his negligence meant she could never bear children. She had a baby before the case came to trial, but the doctor still had to travel across the state for the two-week-long trial.) The patient still has every right to sue, but the lawyers are less motivated to file for frivolous claims just to get a big settlement.
    2. Obama complains that doctors order too many tests to pad their own wallets, but the truth is that doctors lose money on tests they do in-office and usually send their patients to outside testing facilities. The primary physician doesn’t receive a dime. (note to Obama: The doctor managing the care of the diabetic patient also is not the one who gets paid to amputate the foot of the non-compliant patient.)
    3. John Edwards.
    I rest my case.

  • mamreilly


    Beautiful post.

  • daveknecht

    I echo the above. As a imperfect person practicing as an physician in an imperfect system I surely would want someone who is harmed to be fairly compensated. No one is talking about removing tort laws, only reforming them to a reasonable level. Anyone who thinks defensive medicine does not add to the cost of health care is fooling themselves… and/or others. Although this cost is pretty hard to quantify, it is surely significant. I have a patient who is a retired tort attorney and he can not believe this is not even being addressed by this health care bill. Reforming health care without addressing this issue is not reform (or “change”) at all. Doctors will then continue to practice defensive medicine instead of evidence based medicine, and the cost will continue to rise.

  • c-kingsley

    “3. John Edwards.”

    What, you don’t think it’s right in court to channel the spirit of a baby in the midst of being born? Why are you such a racist? Of course it has been shown that emergency C-Sections wouldn’t have helped his clients, but it’s worth (to him) the legal fees to say that the doctor should have done it anyway.