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home / insurance / in the media

Newhouse News Service
Jan 11, 2005

by JOHN FARMER

Commentary: The President Prescribes Retribution

In using the crisis to settle a political score with the trial lawyers, Bush is guilty of presidential malpractice.
John Farmer is national political correspondent for The Star-Ledger of Newark, N.J. He can be contacted at jfarmer(at)starledger.com
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Our president has come across a group so godless it would strip this country even of medical care. Who are these exemplars of evil? You know them as (pardon the expression) lawyers. And thanks to George W. Bush, we now know what vipers they are.

To alert us to this evil in our midst, Bush journeyed to Illinois and Michigan last week to make the case that plaintiffs' lawyers are running physicians right out of business. How? By burying them under malpractice lawsuits that skyrocket their insurance costs. He's got a remedy: federal legislation to restrict class-action lawsuits and limit the amounts juries can award in such cases.

Sounds like ole George is on to something, doesn't it? And even if he isn't, what's to like about lawyers, anyway?

Well, sad to say, ole George has let us down. He's right that physicians are hit hard these days with insurance costs. And trial lawyers do love to sue them,sometimes frivolously. But there's another player in this drama he overlooked the insurance industry and it's not clear why. George W. isn't dumb, as Democrats like to say, but he's not the brightest bulb on the Washington
Christmas tree either. So maybe he just forgot. Or maybe he found the facts inconvenient.

A study by the Foundation for Taxpayer and Consumer Rights, using the experience in California and statistics developed by the federal government's auditing office, makes the case that capping jury awards has had little impact on malpractice insurance rates. What works best, the foundation found, is tighter regulation of the insurance industry.

In 1975, California, plagued by escalating malpractice insurance costs, enacted a statute written by insurance industry lawyers restricting the right to sue doctors, hospitals and HMOs and capping awards. We feel your pain, insurance hustlers told the doctors. But, according to the federal studies, their pain was only beginning. From 1980 to 1986, annual malpractice premium increases in Southern California went from 16 percent to 337 percent.

Three other states that also capped jury awards Arkansas, Florida and New York had similar results, according to the government study. Caps had "little effect" on premiums, these states reported.

But California's failed experiment with caps didn't end there. In 1988, California, over fierce insurance industry opposition, adopted Proposition 103, requiring tougher state regulation of the insurance industry, including more rigid justification for rate increases. Malpractice rates, according to the tax and consumer foundation, immediately began to fall and by 1991 had dropped some 20 percent.

Why does Bush ignore this aspect of the problem? No mystery there. It's politics. This is the most blatantly political administration in Washington in decades, and the trial lawyers are viewed by the Bush-Cheney crowd as simply Democratic auxiliaries. Not without reason, one should add. The trial lawyers have been big sugar daddies for the Democrats for more than a decade.

Bush, the politician, has an understandable beef with the tort bar. But Bush, as a proper president, isn't allowed that luxury. As chief magistrate and the people's tribune, he was elected to solve problems like this, not to indulge petty political peeves. Make no mistake, the physicians' growing insurance burden is a crisis. But it can't be resolved without recognizing the insurance
industry as part of the problem.

The industry likes to claim it loses money on malpractice coverage. And some companies undoubtedly do. But on the whole, the industry is profitable beyond the wildest dreams of avarice. Moreover, the opportunity for cooking the books is greater in the insurance dodge than in almost any other line of work. The industry is not subject to federal regulation; indeed, it's exempt even from antitrust laws.

And most state regulations, the taxpayer and consumer rights foundation contended, are "weak to nonexistent." Why? Because, it concluded, state officials "are typically beholden to the industry through previous or promised employment." Another instance of the "revolving door" scandal that compromises government regulation at every level.

This contest involves some of the wealthiest segments of American society and the least regulated the physicians' lobby, the plaintiffs' bar and the insurance industry. But the greatest potential losers in the struggle are ordinary Americans who need dependable physician care and legal redress when that care is shoddy. They look to the president for help in providing it.

In using the crisis to settle a political score with the trial lawyers, Bush is guilty of presidential malpractice.


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