Judicial Two Step
by Newt Gingrich and Wayne Oliver
Efforts to establish sanity to the civil justice system are under siege. State legislatures across the nation have enacted laws aimed at creating a balance in the civil justice system particularly in medical malpractice claims. However, the courts have begun to systematically impose their own interpretation of tort reform efforts.
Personal injury lawyers have taken an aggressive position to attack civil justice reforms on a state-by-state basis. In Texas, personal injury lawyers are asking the courts to overturn state laws that protect access to medical services. Soon after state lawmakers adopted reform measures, medical professionals began to return to Texas and serve areas that had previously been neglected, especially rural locations.
Physicians returned to Texas in record numbers after the passage of tort reform in 2003. Texans now have access to both primary care and specialty practice physicians in virtually every community in every county. Stability has been restored to the professional liability insurance market, and physicians in critical access specialties, such as neurosurgery and obstetrics, have begun to resume their practices.
Prior to the adoption of tort reform measures, OB-GYNs were moving out of the state or making the decision to no longer deliver babies. Since passage of tort reform efforts, there has been noticeable increase in the numbers of these much needed practitioners. However, activist judges are beginning to dismantle the deliberative work of legislative bodies by judicial fiat.
And Texas is not alone. We are seeing similar challenges offered in other states that have passed progressive tort reform laws.
Certain parts of the country have been labeled "judicial hellholes." South Florida, parts of West Virginia, Nevada, Pennsylvania, Illinois and Oklahoma are seeing a steady decline in the number of physicians and an increase in the number of personal injury lawyers. Citizens in these states are finding it more difficult to find physicians who are accepting new patients. Physicians are retiring early or migrating to other states where the malpractice insurance rates are more stable and the physician-patient relationship is more conducive to the provision of high quality medical care.
There is one fundamental question we should ask: Would you rather have access to your doctor or a personal injury lawyer?
Unfortunately, the personal injury lawyers are well-organized and well-funded. They attend seminars dedicated exclusively to the subject of how to file lawsuits against physicians, hospitals and other health providers. A recent report indicates that over sixty percent (60 percent) of jury awards go directly to the personal injury lawyer and not the injured victim.
We believe the majority of Americans think it is inherently wrong for a personal injury lawyer to financially benefit more from the settlement or award than the injured patient. Personal injury lawyers are relentless in their determination to overturn laws aimed at creating the appropriate level of fairness and balance in our judicial system.
If the personal injury lawyers are successful in convincing the courts to overturn state legislative tort reform efforts, the cost of healthcare will continue to escalate and physicians will continue to leave states where the malpractice climate favors personal injury lawyers rather than medical providers. So, again, the question remains, would you rather have access to your doctor or a personal injury lawyer?
Achieving health justice requires balance and fairness. We need a civil justice system which accelerates the adoption of a much fairer, less expensive and more timely system of health justice. At the Center for Health Transformation, we envision a system which will provide early conflict resolution and equity protection, while also protecting the rights and health safety of individual Americans and providing a more effective and less expensive system for American society at large.
As we continue to develop solutions aimed at increasing health insurance coverage for all Americans, we must create the 21st century intelligent system of health justice. Whether it is ordering too many expensive diagnostic tests or practicing "defensive" medicine, the current system encourages out-of-control healthcare spending. We must continue to adopt measures which will lead us to systems which protect patients and ensures the delivery of the highest quality healthcare but also allows for a more a more effective and less expensive system of health justice.
But in order to sustain such a system, we must also insist on a judiciary that upholds the law and refrains from legislating from the bench.
Newt Gingrich is a former Speaker of the U.S. House of Representatives and the Founder of the Center for Health Transformation. Wayne Oliver is a Project Director with The Center (www.healthtransformation.net).