The primary emphasis of this website is to promote the unalienable right to a jury trial for civil suits, which our Founding Fathers protected through the 7th Amendment to the Constitution after centuries of recognition in British law and Judeo-Christian writings. I realize that the principles get lost in the frequent pounding by the business community over the cost of civil litigation to business. So here are a few well-worn myths about civil suits and medical malpractice claims that are often overlooked by the mainstream media:
1. Myth: We Need Federal Tort Reform Because Our Court System Is Overburdened With Tort Claims Against Businesses
Fact: Tort cases are a very small percentage of the civil docket. According to the National Law Journal, tort filings declined by 25 percent between 1999 and 2008, filings over contracts rose by 63 percent. According to a 2008 analysis by the National Center for State Courts, tort cases represent only 4.4 percent of the civil caseload.
2. Myth: Additionally, Our Courts Are Flooded With An Increase in "Frivolous Lawsuits"
Fact: There's no sure way to determine just what constitutes a "frivolous lawsuit." But one metric would be to review the trend in the imposition of sanctions against plaintiffs' lawyers, an action that federal judges can take under Rule 11 of the Federal Rules of Civil Procedure. A judge can invoke Rule 11 and fine the lawyer for filing a lawsuit that is utterly without merit, and state courts also utilize Rule 11 or some version similar to it. But there has been no evidence of an increase in Rule 11 sanctions against attorneys. According to a survey of judges by the Federal Judicial Center., 80% indicated that some version of Rule 11 is needed but that it is right the way it is. The American Bar Association wrote to Congress this week that, "We do, however, question assertions there has been a significant increase in the filing of non-meritorious litigation in the 18 years since Rule 11 was revised to permit the discretionary imposition of sanctions. While anecdotal stories can be riveting and take on a life of their own, they are an inadequate substitute for concrete empirical data of lawsuit abuse."
3. Myth: We Need Federal Limits on Medical Malpractice Lawsuits Becuse The Number of Lawsuits Is Skyrocketing
Fact: According to Congressional testimony before the House Judiciary Committee, the number of medical malpractice claims didn't spike during any part of the last decade. According to the National Center for State Courts, the number of medical malpractice claims dropped 15% between 1999 and 2008. And the National Association of Insurance Commissioners reported in 2009 that medical negligence payouts dropped 45% since 2000. According to the insurance industry's own data, inflation-adjusted per doctor claims have been dropping since 2002, from almost $8,700 that year to $4,900 in 2008.
4. Myth: Medical Malpractice Reform in Texas Has Improved Health Care Availability and Lowered Costs
Fact: In 2003, the Texas state legislature imposed a series of sharp limits in medical malpractice lawsuits and claims, supposedly to prevent a doctor shortage in Texas. Yet doctors' shortages still loom in Texas today. Texas ranks 42nd among the 50 states and District of Columbia, according to the Texas Medical Association. In December 2009, McClatchy News Service story reported, "The number of new doctors in family practice, the area most in demand, has increased by only about 200, about 16 percent, and more than 130 counties still did not have an obstetrician or gynecologist."
A June 1, 2009, New Yorker magazine article by Dr. Atul Gawande, called The Cost Conundrum; What a Texas town can teach us about health care, explored why the town of McAllen, Texas, "was the country's most expensive place for health care." The following exchange took place with a group of doctors and Dr. Gawande (emphasis mine):
"'It's malpractice,' a family physician who had practiced here for thirty-three years said. 'McAllen is legal hell,' the cardiologist agreed. Doctors order unnecessary tests just to protect themselves, he said. Everyone thought the lawyers here were worse than elsewhere. That explanation puzzled me. Several years ago, Texas passed a tough malpractice law that capped pain-and-suffering awards at two hundred and fifty thousand dollars. Didn't lawsuits go down? 'Practically to zero,' the cardiologist admitted. 'Come on,' the general surgeon finally said. 'We all know these arguments are bullshit. There is overutilization here, pure and simple.' Doctors, he said, were racking up charges with extra tests, services, and procedures."
These and other facts about civil suits and medical malpractice claims demonstrate the lack of evidence justifying a national takeover of the state-based civil litigation process or a federal limit on health care-related lawsuits. Besides, the Founding Fathers never allowed discussions of our unalienable rights to be grounded in the relative costs and benefits - there's nothing "unalienable" about a right if it's subject to a cost-benefit analysis. That's why conservatives such as former Republican Senator Fred Thompson and National Review Online's Ramesh Ponnuru stand against federal tort reform and limits on health care-related lawsuits.