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For years both conservative and liberal plaintiff lawyers have stood fast in front of the proverbial Republican firing line with allegations that we (trial lawyers) are unnecessarily driving up the cost of medicine. The bullets used by faux conservatives (I call them that because tort reform is anything but conservative) have been mass manipulative and false information about cases and a gross manipulation of studies on tort reform. Further, as in any profession, there have been bad actors who have served as the poster child for tort reform when in fact these bad actors are simply far and few between. Its amazing how it goes unreported when severely injured individuals are compensated for injuries they will endure for the rest of their life.

Before I go any further, I want people to ask themselves the following questions:

1. How is tort reform conservative?

2. How is giving up constitutional rights conservative?

3. Who is better suited to determine the damages of an injured person? You as a juror or a congressman or woman who needs special interest funds to get reelected every year?

4. Do you really believe that your government, insurance companies and/or doctors will pass any savings derived from tort reform onto you the consumer?

According to the medical malpractice liability reform and even adding more primary care physicians are “vastly overrated as approaches to lowering costs” according to two (2) studies released last week.

One new study published in Health Affairs, pegged the cost of so called defensive medicine at 2.4% of health care costs. To put that in perspective if your specialist charges $200.00 for a visit, so called defensive medicine accounts for $4.80 of that visit. However, is so called defensive medicine really a bad thing? One argument doctors continually present in medical malpractice suits is that “no one is perfect and they are simply using their best judgment.” Accordingly, if it’s your child or mother and father who is being tested for let’s say heart problems, wouldn’t you want ever possible diagnostic test ran so that a doctor can make a proper diagnosis that will allow them to live a longer and healthier life? My view is simply the benefit of performing the tests and getting a proper diagnosis far outweighs the risk of 2.4% of the cost of healthcare.

The article further quotes Michelle Mello, an attorney-researcher at the Harvard School of Public Health, as saying “[m]edical liability reform is unlikely to bend the health care cost curve significantly.” She further stated that “reforms to the health care delivery system, such as alternations to the fee-for-service reimbursement system and the incentives it provides for overuse, probably provide greater opportunities for savings.”

So back to the above, if there is no significant benefit to lawsuit reform then why is being pushed so hard by so called conservative leaders? To answer that question one only has to look at who is funding their campaigns and lining the pockets of incumbents. For example, one of the biggest leaders in the push for tort reform is the Chamber of Commerce (little secret is these laws benefit corporations even more than doctors) who this year plans to spend over $75 million on campaigns. This is on top of the $123 million they spent just lobbying last year. These are huge numbers that do not include the millions spent by insurers who stand to reap the most profit from draconian tort reform laws.

So once again, how is tort reform conservative? To me it unnecessarily allows incumbent filled legislatures to substitute themselves into the role of jurors on cases in which they know nothing about the facts. Is that undue government interference into the lives of individuals? Further, conservatism is based in part on responsibility. Tort reform is the antithesis to responsibility as it enables individuals, corporations and insurance companies to escape responsibility for their negligence.

Lastly, every time I hear a discussion of tort reform I hear about “capping pain and suffering damages.” This always makes me cringe because “capping damages” essentially means that Nancy Pelosi or John Boehner is deciding the damages in every case without even knowing one iota of the facts or damages of the case. Frankly, this conservative does not trust politicians to the extent I am willing to give up rights held in this country for over 200 years.

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