Passions Flare At D.C. Tort Confab

By Steven Brostoff, Washington Editor

NU Online News Service, Feb.12, 2:22 p.m. EST, Washington?Lobbyists and lawyers engaged in a scrappy debate here displaying a passionate disagreement over legislative efforts to restrict or regulate civil lawsuits, class actions, medical malpractice and asbestos claims.[@@]

In a panel discussion over tort reform that perhaps generated more heat than light, the debate focused on concerns over insurance rates and fair treatment of victims.

The panel was part of the annual Insurance Legislative Summit sponsored by the Council of Insurance Agents and Brokers, the American Insurance Association, and the Reinsurance Association of America, all based in Washington.

Margaret E. Tighe, assistant director of Congressional affairs for the Washington-based American Medical Association, said that medical malpractice reform is necessary if patients want to continue to have access to their physicians.

In at least 19 states, she said, access has become a terrible problem, especially in certain specialties such as obstetrics and gynecology. In addition, Ms. Tighe said, clinics are closing around the country.

But Robert S. Peck, president of the Washington-based Center for Constitutional Litigation, said California, which medical malpractice reform advocates often cite as a model for legislation, saw no reduction in malpractice insurance rates after making its changes.

It was not until California passed the 1988 ballot initiative, Proposition 103, which mandated an arbitrary rollback of auto insurance rates, he said, that malpractice rates in the state began to fall.

Pamela Gilbert, a partner with the Washington law firm of Cuneo, Waldman & Gilbert, added that a study by the United States General Accounting Office found that states which enacted medical malpractice reform experienced the same problems with insurance rates as other states.

Mr. Peck added that those advocating medical malpractice legislation need to consider the Seventh Amendment of the United States Constitution, which guarantees the right to trial by jury.

Juries get to decide damages, Mr. Peck said, unless the trial judge determines that the jury's decision was affected by passion or prejudice.

Ms. Tighe, however, said that advocates of reform are not talking about limiting economic damages, only non-economic damages. The difference, she said, is that economic damages are quantifiable, while non-economic damages are not.

The $250,000 cap on non-economic damages that reform advocates want, she said, only applies to things that cannot be quantified.

But Gary B. Mims, a partner in the Fairfax, Va.-based law firm of Snead & Mims, said that Virginia enacted medical malpractice reform, including a cap on all damages, more than 30 years ago.

Despite that, he said, doctors held a demonstration in the state capitol of Richmond recently demanding tort reform.

If tort reform works, Mr. Mims asked, why have medical malpractice rates in Virginia continued to rise for 30 years?

Turning to class action reform, Bruce Andrews, a lobbyist with the Washington firm of Quinn Gillespie & Associates, said there is clearly a problem with the legal system.

While people can argue about where to draw the line on damages, he said, there is a huge problem when plaintiffs' lawyers have the ability to file the lawsuit in the place where they know they will get the best result.

Citing Madison County, Ill., a jurisdiction where many major national class actions have been filed, Mr. Andrews questioned how many people are really comfortable with having a county with a population of 9,000 deciding the rights of Americans.

Class action reform legislation, he said, would simply do what the framers of the Constitution originally intended, which was to have disputes between residents of different states adjudicated in federal courts which are less subject to local prejudices.

But Ms. Gilbert argued that the real point behind the class action reform effort is to make it easier for defendants to delay litigation. The fact is, she said, that federal courts simply cannot handle that much litigation, and many cases will simply be dismissed. The advocates of class action reform know that, she added.

As for the issue of forum shopping by plaintiffs' lawyers, Mr. Peck said that some federal courts are hostile to plaintiffs. The class action legislation, he said, is an attempt by businesses to use their political clout to gain an advantage.

Turning to asbestos litigation reform, Patricia A. Henry, senior vice president of global government affairs with Philadelphia-based ACE-INA, said that a trust fund, which is the central feature of legislation pending in the United States Senate, makes sense with asbestos.

She said she doesn't see how anyone could reach a conclusion other than that the current system doesn't work.

Asbestos, Ms. Henry said, should be taken out of the tort system and claims resolved through a non-adversarial victims compensation fund.

Mr. Andrews added that the system is broken because truly sick people are not getting compensated while lawyers are getting rich.

Ms. Gilbert said there is nothing necessarily wrong with the concept of a trust fund, but the devil is in the details. Questions remain, she said, over what is adequate compensation.

In addition, she asked, what happens if the fund runs out of money while uncompensated victims remain?

Ms. Henry said that negotiators have already resolved the latter issue. Insurers and defendants have agreed that if the fund runs out of money, victims who have not been compensated will be able to go back to the tort system to pursue their claims.

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Passions Flare At D.C. Tort Confab

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