By Newt Gingrich and Wayne Oliver
Originally published in the Chicago Tribune on December 7, 2008
Efforts to bring sanity to the civil justice system in Illinois are under serious attack. In 2005, the Illinois legislature enacted a progressive law aimed at creating a balance in medical malpractice claims. The law created a cap ($500,000 against a physician and $1 million against a hospital) on pain and suffering or non-economic damages.
But recently a Cook County judge ruled that the cap was unconstitutional (LeBron vs. Gottlieb Memorial Hospital). This is not a new phenomenon. Personal injury lawyers nationwide have begun to ask the courts to systematically impose their own narrow interpretation of tort-reform efforts and to overturn caps on awards.
Personal injury lawyers have taken an aggressive position to attack civil justice reforms on a state-by-state basis. In Texas, New Mexico, Georgia and now Illinois, personal injury lawyers are asking the courts to overturn state laws that protect access to essential medical services. Soon after lawmakers adopted reform measures in those states, medical professionals, including physicians and surgeons, began to return to these states and serve areas that had previously been neglected, especially rural locations.
In Texas, physicians returned in record numbers after the passage of tort reform in 2003.
In Illinois, tort reform stemmed the migration of talented health-care professionals to surrounding states. Stability has been restored to the liability insurance market, and physicians in specialties such as neurosurgery and obstetrics have begun to resume their practices. Before the adoption of tort-reform measures in Texas and Illinois, OB-GYNs were moving out of the states or making the decision to no longer deliver babies. Since the passage of tort-reform laws there has been noticeable increase in the numbers of these much-needed practitioners.
However, activist judges are beginning to dismantle tort reform by judicial fiat. There are serious consequences when the legal system overrules sound legislative policy. For example, in early November, Chestnut Hill Hospital in the Philadelphia metropolitan area closed its maternity unit, leaving more than 5 million people nearly without OB-GYN services.
In those states that refuse to adopt reform measures or overturn reasonable caps, physicians are retiring early or migrating to states where the malpractice insurance rates are more stable.
There is one fundamental question we should ask: Would you rather have access to your doctor or a personal injury lawyer? A recent report indicates that more than 60 percent of jury awards go directly to personal injury lawyers and not the victims. There is something inherently wrong about a system that allows lawyers to financially benefit more from the settlement or award than the victims.
If the personal injury lawyers are successful in persuading the courts to overturn tort-reform efforts, the cost of health care will continue to escalate and physicians will keep leaving states where the malpractice climate favors lawyers rather than medical providers.
As we continue to develop solutions aimed at increasing health insurance coverage for all Americans, we must create an intelligent 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 the center’s health justice project director.