ISLAND VOICES
Americans should resist change in civil justice system

By Richard Turbin
Honolulu lawyer and president of the Consumer Lawyers of Hawai'i

When our national security is threatened and patriotism is at its highest, it is too easy to surrender our rights as American citizens. This happened during the Civil War, it happened during the two world wars and it is happening right now.

Unfortunately, in 2003 it is nothing less than our civil justice system that President Bush and the Republican leadership in Congress is asking us to hand over.

Oddly enough, the right we are being asked to surrender has nothing to do with fighting terrorism or enhancing safety. Instead, it is the right to access our civil justice system to protect our children and community from unsafe healthcare, drugs, consumer products and drivers on our highways.

When Bush lambasted "frivolous lawsuits" during his State of the Union address, he didn't mention that there already are many laws and court rules in place that protect people from ill-begotten lawsuits. Instead, he proposed sweeping and radical legislation that would essentially wipe out the average person's right to initiate lawsuits against careless doctors, parsimonious health-maintenance organizations and manufacturers of dangerous pharmaceuticals.

The mechanism to eliminate a victim's right to sue would be to severely restrict contingency-fee agreements through which lawyers undertake cases for impoverished victims in return for a percentage of the recovery. Many victims in our society obviously cannot pay legal costs and fees out of their own pockets, so without a healthy contingency-fee system, no way exists for them to make use of our civil justice system.

Congressionally mandated "caps" or strict limits on the recovery a victim can win in court are the other proposed mechanism to eliminate the impoverished victim's right to sue. Bush proposes a $250,000 cap on pain-and-suffering awards. Because legal fees and costs incurred by a lawyer representing a victim of a serious injury are usually far more than $300,000, such a cap means many victims will be unable to hire lawyers. The proponents of this ill-advised legislation understand quite well how these mechanisms would erode the rights of the average citizen to use our civil justice system.

Instead, we, the taxpayers will be solely responsible for caring for the maimed and injured in our society. This is neither fair nor just. Furthermore, it is not good for our economy or our society.

Let's look at the facts. Medical malpractice is a serious problem. The prestigious New England Journal of Medicine reports that surgical mistakes kill 16,000 Americans each year. They are the second-ranked leading accidental cause of death, after automobile crashes.

In their race to increase their profits, some HMOs refuse to allow their doctors to prescribe needed diagnostic tests and expensive treatments. Small wonder that medical malpractice remains a problem in our society. Yet the overwhelming majority of doctors are competent, caring and conscientious. It is only a very tiny percentage of physicians, perhaps 1 percent, that commit more than 90 percent of medical injuries. As in most professions, however, it is very difficult for medical societies to discipline errant members.

In their race to bring drugs to the market, some drug manufacturers unfortunately market dangerous drugs with inadequate labeling and warnings. Unknowing doctors prescribe these drugs, which cause death and serious injuries.

Countless lives have been saved because lawyers representing the victims of these dangerous drugs have shed light on the pernicious effects of these pharmaceutical products and caused them to be withdrawn.

It would be unwise and tragic to handcuff our lawyers and prevent them from doing their job.

Let us not forget that when a lawyer wins a case for a victim of a dangerous product or negligent medical care, it is a jury, made up of ordinary men and women, that is speaking. When juries speak, corporate America listens. That's why:

• Defectively designed cribs no longer strangle infants.
• Flammable children's pajamas have been taken off the market.
• Dangerous drugs have been taken off the market.
• Gas tanks are no longer placed in the rear of vehicles.
• Cancer-causing asbestos no longer poisons homes, schools and factories.
• Farm and construction machinery now have safety guards.

Supporters of so-called tort reform bills in Congress claim that too many lawsuits have led to excessive expense to the nation's economy. They also charge that juries can no longer be trusted to render fair verdicts. But the truth belies these assertions.

Lawsuits by injured victims, that is to say, tort claims, do not clog our courts. In fact, they account for only about 5 percent of all civil claims, according to data compiled by the nonpartisan National Center for State Courts.

Federal court studies show that the number of tort lawsuits, per capita, filed in the federal courts since their inception in 1790 have remained remarkably constant. The size of jury verdicts has increased only in line with the rate of inflation.

The National Safety Council estimates that the costs of accidents caused by negligent conduct totaled $480.5 billion in 1998, and that about 6,000 deaths and millions of injuries are prevented each year because of the deterrent effect of product-liability and medical-malpractice lawsuits, according to the Consumer Federation of America.

What about the argument that insurance premiums are too high because of the threat of medical-malpractice lawsuits? The prestigious Rand Institute and every objective think tank that has researched the subject have discovered that medical-malpractice suits have nothing to do with the increase in insurance premiums for doctors.

The increase in premiums is solely caused by stock markets. Insurance premiums are invested in the market, and when the market collapses, insurance companies lose money. They make up the difference by charging their customers more.

The cure for rising insurance premiums is to require insurance companies not to invest in the risky stock market and to practice prudent financial behavior.

The United States is a beacon for the world because in no other country are people so in control of their own destinies. Let us be vigilant and prevent misguided politicians and greedy corporate profiteers from taking our civil justice system away from the ordinary American.