Tucked away in the thousands of pages of the Democrats’ health care overhaul bill are a number of gifts to the trial lawyers. Which, by the way, are the Party’s largest financial backers.
"America’s Affordable Health Choices Act" establishes new routes by which insurance company employees can sue. It sets up new mandates and regulations on care providers, providing more avenues to go court. And it will allow lawyers to file suits over decisions made by arbiters in patient vs. insurance company disputes.
This analysis comes from Republican congressional staffers, who tell HUMAN EVENTS they plan to offer a full report later this week.
The biggest gift of all is what is not in the bill.
There is no tort reform, no limits to malpractice law suits that drive up medical and insurance costs and force insecure physicians to order excessive tests.
There are no caps on what state juries can award in medical malpractice cases for economic lost, or for the hard-to-calculate pain and suffering. This means lawyers hold on to their free rein in suing doctors and medical plans.
To Democrats, no tort reform makes good politics. The Washington Examiner reports trial lawyers have donated three-quarters of a billion dollars to political campaigns the past two decades — the vast, vast amount of which went to Democrats and their party. Senate Majority Leader Harry Reid, Nevada Democrat, has gotten $54,000 in campaign funds this year alone from trial lawyers and their employees.
Former Democratic National Committee Chairman Howard Dean, a medical doctor, put it this way at an August town hall meeting:
"Here is why tort reform is not in the bill. When you go to pass a really enormous bill like that the more stuff you put in, the more enemies you make, right? And 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 in addition to everybody else they were taking on, and that is the plain and simple truth. Now, that’s the truth.”
According to a Republican analysis, here are the legislative gifts to trial lawyers:
• Section 151. Imposes new mandates on insurance companies and the employers who buy their plans, providing lawyers new grounds to sue in federal court.
• Section 153. Establishes a new whistleblower law so the employees of insurance companies can file suit if they believe they were retaliated against. In theory, a person fired for incompetence could retaliate against the company by claiming whistleblower status.
"If some one gets demoted they can claim they were about to bring a complaint," said a Republican congressional staffer. "It gives them another ground to sue a company."
• Section 132. Sets up an appeal process for a patient denied a claim or benefit by an insurance company. The third-party independent arbiter would hear the appeal and issue a ruling.
Democrats could have made the arbiter’s decision final, to cut down on law suits. But the bill does not. It specifically opens up the ruling to challenges in court, saying, "Nothing in this section shall be construed as affecting the availability of judicial review under state law for adverse decisions."
"The Democrats are not going to go against a key constituency," said the Republican staffer.
They could if they wanted to. When in Republican control, the House passed tort reform, regulating jury awards in state courts. But Democrats bottled up the bills in the Senate.
Meanwhile, the cost to businesses, doctors and patients mount.
The business-backed American Tort Reform Association says the cost of liability law suits has exceeded the growth in the Gross Domestic Product by two to three percent the past 50 years.
"Plan and simple, the trial bar is consistently the most generous campaign contributor to the party that is now in charge of both ends of Pennsylvania Avenue," said reform association spokesman Darren McKinney. "So to expect miracles by way of tort reform being inserted into the health bill would be politically naive to say the least."
In his health care speech to a joint session of Congress Sept. 9, President Obama conceded that, "I don’t believe malpractice reform is a silver bullet, but I’ve talked to enough doctors to know that defensive medicine may be contributing to unnecessary costs."
Some may call that a concession from the head of the Democratic Party. But the president stopped short of saying tort reform should be in the bill. Instead, he punted, saying the Department of Health and Human Services would conduct demonstration projects in some states.
A recent Massachusetts Medical Society survey of doctors in the state found that 83 percent admitted to practicing defensive medicine. The cost to that state alone: $1.4 billion. Tort reformers say defensive medicine costs health care systems $200 billion annually.
Thirty states already have adopted some legal reforms, according to the tort reform association. Even if the president does not, these states do know that excessive law suits drive up costs by forcing physicians to practice defense medicine ordering tests, referrals and hospital stays to avoid legal action or to improve their chances of beating a law suit.
The state reforms have resulted in reducing the actual number of malpractice suits in the past 10 years.
Republicans tried to impose caps on medical malpractice jury awards during the bill’s creation in the House Energy and Commerce committee.
The amendment from Rep. Michael Burgess, Republican Texas, failed, 32-23. All committee Republicans present voted yes. But they were joined by only two Democrats, proving the trial lawyers’ influence over the Democratic Party.