A lot of campaigns have taken recently to skewering the ever-feared trial lawyers. Apparently, there's a big push for tort reform when there is absolutely no data saying that it's needed or would be helpful to the average citizen. Just to be clear as to which kind of tort reform is being championed in the biggest way, I'll point out that it's medical malpractice insurance.

There are two major changes which immediately come to mind:

1) They are proposing to cap attorney's fees.

2) They are proposing to cap punitive damages.

The current 'crisis' in the medical insurance field being due to lawyers is a completely 100% manufactured reality. The fact is that the change in insurance premiums (which hasn't been as drastic as advertised) hasn't even kept up with the rate at which doctors themselves have been increasing the prices they charge their own customers.

The price of medical malpractice insurance is controlled by two major factors (and other smaller things).

1) Market forces -- different carriers will lower prices in an effort to increase market share. In Oklahoma, one company carries around 90+% of doctors, so this isn't really an issue here.

2) The stock market -- that's right. Insurance is the second most profitable business in the world (next to banking I believe). It should be noted, however, that if insurance companies were to just take in premiums, and stick them in a static bank account, and then pay out claims as they came in, they'd lose mone. Insurance companies invest all of their premiums to grow that money. When the market is booming (for example, in the 90's), insurance companies will be able to lower costs to increase market share (see #1). When the stock market slows down, prices will correspondingly increase.

While there has been significant change in the stock market, the rate of claims being made has actually declined over the last few years. So exactly where is this crisis?

As to the proposed changes, they are an absolute farce.

The proposal to cap attorneys fees at either a fixed dollar amount, or at a certain percentage will preclude many patients injured by a physician's negligence from seeking any kind of help for their injuries.

There are very few patients or attorneys who can afford to prosecute a medical malpractice case. The costs of expert witnesses, and discovery alone can top six figures, not to mention the time investment made by the attorney. If an attorney spends 200 hours working on a case on contingency, he or she could have spent the same working for an hourly rate of say $200/hr, and received $40,000 for their trouble instead of a questionable amount of money plus huge expenses.

I believe one proposal is to cap attorney's fees at $250,000. Costs can EASILY excede this, or even approach it. Most cases absolutely require the plaintiff to put an expert witness on the stand to testify as to the standard of care in that locality, and whether there was negligence. In Oklahoma, the absolute minimum one of these folks will work for is about $10,000.

Why so much? The major insurance company in this state will drop any physician who testifies against another physician in the plan. Thus, these doctors, if they are to practice have to really pay a lot in insurance premiums, or they may even have to self insure. Many doctors who do this are both shunned in their profession (you've heard of the blue wall of silence when discussing police brutality? The medical community is just as bad, if not worse), and still many more simply can't afford to self insure and run a practice knowing that if they make a mistake, they could lose everything.

Attorneys have to put food on their own tables, and if these kinds of cases can't do that, they will cease to provide these services. In the end, who gets screwed? Yep -- the weakest person in the entire equation, an innocent person injured by the negligence of a medical professional.

The second major change that comes to mind is the proposal to cap punitive damages. These are generally not awarded in medical malpractice cases. The standard for punitives is very high, and generally, unless the physician is (for example) operating drunk, or removes the wrong leg, or something like that, there will be no punitives. In fact, these types of damages are only awarded in around 1 percent of all malpractice cases. In the other 99%, the damages are strictly things like loss of earnings, cost of ongoing care, etc.

For actual data supporting all of what I said, see:

http://www.citizen.org/congress/civj...es.cfm?ID=9125

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Sullivan's campaign recently lost my support over just such a factually bereft campaign ad claiming that there is some sort of a crisis, etc. etc. He further demonizes trial lawyers -- something I'm working my butt off to become.

Trial lawyers don't hurt people, they help them. When one person hurts another, or takes unfair advantage, in our society, we don't pick up big sticks and form a posse, we go hire a lawyer who gets us what is owed.

I guess it's okay to demonize lawyers until we need one ourselves.

Finally, Sullivan's campaign has begun to say anything it can just to strike a nerve with people. It called Brad Henry a "trial lawyer" in one recent commercial.

Yes, Brad Henry's a lawyer. I'd be VERY surprised though if he's ever seen the inside of a courtroom, at least from the perspective of being an attorney instead of a litigant.

Looks like this year, I'm going to have to support a Democrat as much as it pains me. I thought Sullivan was going to be a good guy, a champion of conservative freedoms, etc. It turns out that he's just another shill for the corporate types who want legislation that's favorable to them, and harmful to all of us.

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Everyone has to admit trial lawyers are necessary to do some good. It seems like the pharmaceutical companies and insurance companies should be at the top of the "evil-doers" list. However, they have lobbyists that work well for them.

As for Henry, everyone has to remember, he is not an incredibly wealthy man. Compared to Istook and Sullivan, Henry is on welfare. Henry is in his highest paying job of his career right now. He sure doesn't seem like a rich trial lawyer does he?

I guess I was a little disappointed in Sullivan. I expected him to go negative at some point, everyone does. I just didn't expect his campaign to be so deceptive to the voters. I can't stand behind a man like that.

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