Focus 580; Why Tort Reform Is Not A Good Thing

Good morning and welcome to focus 580. It's our morning talk program my name is David Inge. Glad to have you with us on the program today we will return to an issue that we have talked about on the program before. Most specifically a couple of weeks ago and that is tort reform something that the President Bush says will be a major objective for his next term. Something I'm sure that we'll be talking about a lot next year we want to hear as we were closing out this year to at least do a couple of programs to give you a preview and to give you the opportunity to hear arguments on both sides of the issue. According to the Republican Party platform this past summer frivolous lawsuits are driving up the cost of doing business by forcing companies to fight or to settle often baseless lawsuits and just recently just last week President Bush made the point again saying that he was passionate about protecting the business community from quote frivolous lawsuits unquote. He said he worked hard to get legal reform through Congress including making the issue a topic of his State of the Union address next month. Just a couple of weeks ago on the program you heard from Sherman Joyce president of the American Tort Reform

Association that was on November 30th this morning will have a different set of views as we talk with Frank Clemente. He is Director of Public Citizen's Congress watch and has been since 1996 Public Citizen's Congress watch conducts public education and advocacy efforts on a number of issues including campaign finance reform. Better access to quality health care legal reform issues corporate accountability and also regulatory issues that relate to health safety and the environment. Before that for six years our guest Frank lament He was senior policy adviser to the House Committee on Government Operations chaired by Representative John Conyers overseeing a number of initiatives involving everything from national health care to environment to budget policy. He was also issues director for Jesse Jackson's presidential campaign in 1988 and has directed or served as senior advisor to several congressional campaigns and local initiatives. As we talk. In this hour of focus questions and comments are

certainly welcome. All you have to do to participate in the conversation is pick up the telephone and call in and the only thing that we ask of people who call us simply is that people are brief and we just ask that so we can keep the program moving along and get in as many different people possible of course. Anyone who is listening is welcome to call in with their comments. The number here in Champaign Urbana 3 3 3 9 4 5 5 we do also have a toll free Laurie and that one's good to anywhere that you can hear us. So if it would be a long distance call. You're listening around Illinois and Indiana or you might even be listening on the Internet. You can use that long toll free line as long as you're in the United States that he's 800 to 2 2 9 4 5 5 so here in Champaign Urbana 3 3 3 9 4 5 5 and toll free 800 to 2 2 9 4 5 5. Mr. Clemente Hello. I do how are you. I'm fine thanks and yourself. I'm great.

Good. We appreciate you giving us some of your time. We already have a couple callers and of course as we go along. Expect we'll have some people to talk with. But first just as a as a kind of an overview on the issue let's talk a little bit about your take and public citizens take on the issue of tort reform and obviously you have a fundamental disagreement with the administration with other groups that are making the argument for reform. You seem to have a very fundamental disagreement about where the problem actually lies and if indeed there is a problem. Yes we actually prefer to call it tort deform. That's our way of saying reform implies a good change. And most of the time and we think this is not a good change we think that people's legal rights are very fundamental in this country. It creates a level playing field. Whether it's with respect to the insurance companies the health maintenance organizations the provider of health

care or the large drug companies that manufacture defective drugs or car companies that their cars end up being recalled because of defects often those defects kill people or you know telemarketing companies that call up and particularly prey on senior citizens and rip them off through telemarketing scams all of these types of problems that people face. They try and reject them through the legal system through this torts Torts is a case one brings in civil court against these companies or in some cases against professionals like doctors if they've harmed you in some way and we feel very strongly that this is a as an important part of our democracy it levels power in our economy. The least the person of the least means if they've been seriously harmed they can bring a company to be held accountable in court before a jury and judge for damages

and that they can force major changes in company behavior. So the. Products end up being safer things like that so we just see this is a very important foundation of our economy and our society and our view is that the people who are trying to take away people's legal rights which is what we believe they're trying to do it's not. They use the rationale or economic reasons for doing it. But it's really not an economic matter it's largely a political matter they are China. Those folks who want to take away people's legal rights are coming down on the side of large special interests and not the side of average consumers or medical patients in our opinion. But as I said I have a couple of callers I want to get on to them and I want to tell those people I will make them wait forever but let me just ask one further question specifically about the kind of changes that are proposed coming under the heading of reform what some people would call reform the basic things seem to be that they would like to see a cap placed on what are

called non economic damages. That's customarily the kinds of things that perhaps people are used to thinking of or referring to as damages awarded for pain and suffering. They want to put a limit on attorney's fees and then many of these cases the attorneys collect some percentage of the damages that are awarded to the plaintive and then there's also. Requirement that people would receive their damage payments in installments rather than having to to the Whoever has paying out those damages to to make those payments and a lump sum and there are of course some other things but those seem to be sort of the major things. I guess that the people who talk about reform would say something like well we're not we're not trying to take away from people the opportunity or the ability to sue. They're still going to be able to bring lawsuits if that's what they want to do. And we're just trying to make it a little bit easier more reasonable perhaps for those people who end up having to pay out the damages and also they would

claim that in trying to limit the attorney's fees that they're also trying to do something for the plaintiffs. And so so much of the money that they receive would have to go to lawyers I guess at the end of the day they would say you know we're we're trying to make some changes but we're not certainly trying to take away from people the ability to file these kinds of lawsuits. Why do you. Those are three we get. I'm not sure I can get into the the three points that you said that they raise I think the important framework for your listeners to understand is that the pope folks proposing these changes are not consumer organizations. They're not seniors groups are not health care organizations. They're not folks who are typically on the side of your average patient consumer. They are business entities whether it's Major corporations major drug companies major insurance companies the Chamber of Commerce which is leading the fight on a lot of the stuff because because of you know its large company

membership. So I think that's the first important framework is that you have a lot of folks we I think we have four or five thousand members in Illinois who are members of Public Citizen and we're fighting for consumers the average person on the other side. Bush President Bush. And the other folks are fighting for the people being sued because it's a hassle to be sued. Nobody likes to be held accountable. Nobody likes to be forced to change your product or recall your product because you were careless in how you manufactured it. No doctor likes to be brought into court to you know to be held accountable it's a very painful experience this time. It costs a lot of time and money and this and that. If you want we could talk under the cap on damages attorney's fees and the installment payment issue. I can get into some detail on that. It's a tell me what you'd like. Well I tell you what why don't we just hold that for a minute. And so we'll go to the callers and then we'll come back to those issues are. And we have callers here a couple of them and we'll

start I don't believe with a caller in over listening in Indiana this morning on our toll free 1 1 4 0 0 0. I sure hope you get to those. You just mentioned. Might my first instance when I heard a group of people with had a speaker against the. Instance have a tort reform and wanted to cap things. They made the trial lawyers sound almost like God in some way that they can sway a jury to do about anything. Then later on in their program it made they made the jury sound sort of stupid because they didn't quite understand you know what the prosecutor or whatever was saying and I first thing it came my mind it's the first attack on the jury system I wonder if you could speak to that rather nebulous view. Thanks a lot. Good show you know I well thank you. Well you go ahead and do that Mr. Panetta.

Sure. Yeah I mean some folks believe in the jurors system. Most Americans believe strongly Gers system have other stuff and I think anybody who's participated in a jury. I've been not on a personal injury case but on a criminal case it's it's a fascinating process that process I respect greatly because it's people really try hard. Need to do the right thing to be fair to weigh all the evidence that they come to a reasonable conclusion and that's the system we have in all 50 states. When it comes to these two court issues it's their civil trials are not criminal trials but the jury decides. You know all this evidence gets presented and some of it is technical and some of it is not technical but it is very you know very much who this person is and what this person's life experiences are. And unless we're going to totally change that process I think we need to respect it continue it. I think

it works very well. The fact is and this is one of the confusing things about the tort system most cases do not go to a jury. And in fact in medical malpractise for instance only about 5 percent of cases end up before a jury. They are either settled beforehand that most cases aren't settled frankly. Often what happens. You have to. This is all at different levels. People say all these cases. Well the fact is you you go to a lawyer and you give them some information about your case. They open a file on you. If they think the case has any merit whatsoever they then go to the insurance company and say Well we're we're doing some research we're doing some discovery we're trying to determine if there's a case here or not so that's a case that gets opened with the insurance company. Now often after the process proceeds for some months the lawyer for the person who's been injured will decide this case isn't worth pursuing. It's too hard to prove there's not

sufficient damages. You know it's not an economic case. It's not not worth it for me to put my time into any number of things. But all those go into this consideration of whether to bring a case or not. But the fact is that almost 95 percent of cases are not jury cases. They are decided. Outside there either take it away. In other words the lawyer decides I'm not going to consider pursuing it or the insurance company for the defendant will settle the case based on what they think is the case is worth based on what their risk is taking it to trial and if they try and settle it too low and they're forced to go to trial there often is a concern that a trial they will have to pay higher damage. Well I hope it gets at the question of the Carlists go here to somebody else. This is lie number one here in Alabama. Hello good morning. That answer actually was so relevant because the arguments tend to be highly

emotional one argument of incompetence excessive pain on one side or the other economic damage to our entire system and the bringing down of our culture basically. And so actual numbers if they were available would make a lot of difference. And so apropos of that and back to this question of whether this is an economic issue could you give us your opinion of the argument that I've heard raised that in this specific case of insurers. And premium skyrocketing so-called it has less to do with the actuarial requirements of paying out claims damages settlements what ever the numbers are and more to do with the lack of return on investment as in the last four or five years of the insurance companies that when they can't get enough because of the investments they

begin raising the rates to make up for it. And if if that figure is accurate if that argument is accurate and wondering how it is that there is no free market in insurance where they actually compete for business by offering the lowest possible rate how will I want another question if I may so please address the question of insurance rates skyrocketing. What. But the caller's referring to we call it the insurance cycle. People need your listeners. It's important to distinguish between what I call the kind of red hot rhetoric that is out there on the subject and it starts with the politicians and it's the business community is pushing it. And and it kind of filters down to me for most of all the overlay on this is

there's a there's a general predisposition in our society against lawyers. You know they used to say dentists were the most hated profession I think nowadays lawyers are the most hated profession. And you know these lawyers who defend consumers are disparaged throughout the news media and I think that's a that's a whole separate conversation an important point because it what it does is it biases how we all look at this and what the bias pervades to this question of the malpractise crisis the malpractise insurance crisis. There is a no question there is a spike that has occurred in the last two or three years in what Doc the amount that doctors have to pay for medical malpractise insurance insurance to protect them. Should they be sued. What people don't understand if you if you get outside the daily newspaper outside the rhetoric and you actually go and read the journals and the trade publications that come from the insurance industry itself what that

industry talks about is the insurance cycle. They don't talk about these rates are skyrocketing because damages are up the number of lawsuits are up. Anything like that. They talk about it as it's an economic cycle the same way as the larger business cycle. Sometimes our economy goes into recession sometimes it comes out of most of the time it's out of recession. It's the same way with the insurance market. Most of the time the insurance market is doing very well. Very large profits are being made and periodically once every 10 years or so it goes into a tailspin where it loses its profitability. There's market share problems and they have to in order to get profitable again. The companies have to spike their rates to make up for their investment losses and that's what's taking that is what has taken place in the insurance market the last few years. It's. I mean it was exacerbated by the I mean it really began with insurance companies were making huge amounts of

money in the 1990s. They were cutting their rates fairly dramatically in order to cause it was competitive they're trying to get more business. Why are they doing that because they are making a lot of money in the bond market in the stock market that's where they make their money to make it on investments so they cut their rates so they put themselves in a precarious financial position which was fine as long as they were getting this big investment return. But when the investments collapsed as we all know some of us are fortunate to have carriers you know money market account whatever you know we weren't doing too bad before the crash either. Well suddenly we were doing bad too just like the insurance companies are doing bad. We don't have the ability to charge a higher price. Insurance companies do and that's what they've done. The caller have another question he wants. If I can. Yeah sure. A separate one sure. This will get us back as the last caller requested to those items in the details of the so-called reform.

If you could if you could actually have tort reform let's try to be a little positive now. What items would you prefer in a reform of the current system if you couldn't get exactly what you wanted. What would you propose as a quid pro quo if you agreed to any of the items suggested currently. What would you balance it with. It's sort of like. I'll cut the pie into pieces and you get to freeze the prick first pic so everybody gets something and has an incentive for fairness. Are there things you would prefer in actual tort reform. And if you can't get that what would you suggest to balance each one of the individual. Suggested that are now proposed. And to answer the previous caller's question you could go into each one of those things that are now proposed and I think I've had enough time to hang up and listen.

You've got a very skilled questioner here trying to answer it quickly. I mean most of the time we're fighting what I call a defensive battle. People are trying to companies Congress is trying to take away our rights and so we're trying to protect those and we have trouble just argue is the tort system is largely a state by state system it's a body of law that's been developed state by state and so we're a little uncomfortable imposing federal standards on all this. The two most important things from our point of view though is for most for patients who are in a health maintenance organization a managed care company that is regulated by a federal law. They are regulated by a federal law in many cases it's called a risk. It's a complicated law it's not worth going into but. The the case the fact is people remember the debate a few couple years ago about the Patients Bill of Rights.

What that was was a whole bunch of different things but most fundamentally it was Should people have additional legal rights so that they can bring cases against health maintenance organizations managed care companies because they deny you medical care right now because of. The legal situation. It's virtually impossible to bring such a case at your state level it's preempted by by this federal or risk the law essentially cut your legal rights off to bring a case against these companies if they've denied your medical care so that's probably the first important thing I would change to help consumers. The second thing is it's an insidious. Effort by the business community what they do it's called the issue broadly is called mandatory arbitration clauses. If you have a credit card or a credit card your phone company you buy a particular kind of product there will usually often there's a contract.

You typically probably don't read it. I don't read it. But in the fine print of the contract it basically says if you have a dispute with this company the only way you can resolve it is by going to mandatory arbitration. Essentially you can't go to court. The public legal system where it's an even playing field they say you have to go to mandatory arbitration and mandatory arbitration is some it's private it's a it's usually most it's controlled by the company who has you who you have this agreement with. And often what that means is they choose who the arbitrator is. They can have an arrangement with an arbitration service. There's substantial upfront costs to go into arbitration that you would have to bear. Whereas if you're in the tort system the regular legal system. Your lawyer actually pays for those upfront costs. And so we would like to stop. We would like to. The federal

government to basically say that these mandatory arbitration clauses in these contracts to basically prohibit them. These clauses are in your agreement with your insurance company your health maintenance organization with your auto dealer if you have stock and you work with a securities company. You know to bind sell your stocks. They have these kinds of agreements. They literally foreclosure legal rights in court. You have to go to this private system. And I've used a private system is largely stacked against people. We have a number of callers who will continue to talk with folks I think I should also reintroduce our guest for this part of folks 580. We're talking with Frank Clemente. He's Director of Public Citizen's Congress watch and has been since 1996 Congress watch conducts public education and advocacy efforts on a number of issues including campaign finance reform better access to health care or legal reform issues corporate accountability and other things we're talking this morning about tort reform. And as I mentioned the beginning of the program

the Bush administration has said this is going to be a priority of its next term. Mr. Bush said that again last week where he said he would work very hard to get this reform through Congress. It would be a big issue in his State of the Union address that he will be delivering next month. Now it's something that I'm sure that we'll be talking about. Next year and perhaps beyond about we did want at least this fall do a couple of programs looking at the issues on November 30th. We talked on this program with Sherman Joyce who is president of the American Tort Reform Association an organization that favors tort reform and we also want to give you the opportunity here or some other argument some sort of counter arguments and for that we have Mr. Clemente with us this morning and questions are certainly welcome. 3 3 3 9 4 5 5 toll free 800 to 2 2 9 4 5 5. I did want to ask you because the caller asked about well we're you know are there some things that you would like to see in the way of reform that's perhaps different from the kind of reform that the Bush administration and others are talking about. You have.

The Public Citizen website some papers and some information the sort of policy papers on your take on these issues and people can go to Public Citizen dot orgy and look at them. One of the points that you make in one of these is that in fact at least from your perspective you think that the problem here may not really be lawsuits filed by individuals that in fact businesses file many more lawsuits than do individuals and it may be that the problem here are businesses filing frivolous lawsuits not individuals filing frivolous lawsuits. Would you would you like to see any limits placed on the ability of businesses to file suit. No. First of all just our website is actually is a public service and it's they were a part of me that's right you know oddly enough I don't know why we don't do public system but I think it is. It is an orgy. And the report you're referring to is called frequent filers. What it the report. It actually has information from Cook County Illinois.

What we did was we decided to look at the question of the number of lawsuits that are filed how many how often does business do businesses file lawsuits versus individuals file lawsuits. And let's face it there's a heck of a lot more Americans than there are businesses in the country probably I don't know 40 times as many people in the country as there are businesses. And the interesting thing we found we there is really only for two states and for two counties where this information is able to be collected and analyzed in a similar way and one of them happens to be Cook County Illinois. And what we found was that businesses were four times. Filed four times as more as many suits as individuals do. And actually another part of the study which was even more surprising the president and others talk about frivolous lawsuits and there's actually a federal

process where a federal judge can sanction a either a defendant or a plaintiff they can sanction them for filing a frivolous lawsuit it's called Rule 11. And we actually went back and looked at all the sanctions under Rule 11 all the sanctions for for filing for frivolous motions or filings in the last year actually went back from till 2001. And we found that businesses were much more likely to be sanctioned by a federal judge than an individual with an attorney bringing a civil case. That was kind of very counter-intuitive as well. Businesses are actually sanction much more often for filing frivolous cases than individuals are. I'm not interested in restricting. Lawsuits. I mean I just don't believe that that's what we should be about look at business. And there's lots of I mean I got a list along with the frivolous business cases but if businesses feel that they have been wronged they've been ripped off

by another business they got lousy service or whatever they should be able to bring a lawsuit and I don't think that you can legislate that. You know it's just it's just not I mean there are sanctions in place that state judges and federal judges can bring if a case is frivolous and it's incumbent upon them to issue those sanctions if they feel that the cases are motions or whatever are frivolous but I don't think that we should be pushing legislation or legislation be legislation it's just too hard to do. All right well let's go back to the phones. The next caller is in Indianapolis. Line number four. Yes good morning gentleman. I did want to ask a couple of questions one having to do with the business of suing individuals because you have companies suing people for downloading music or movies and then extorting money from those individuals without any proof that they've done anything wrong I think this is an example of a frivolous lawsuit that should be done dealt with definitely by the bar association or somebody. And my second point is we already have mob practice reform in Indiana where you have

a limit on pain and suffering it's been a law for years and maybe you're right it should be done on a state by state basis by by third point is what about these class action lawsuits where these law firms will solicit you to be part of a class action suit and then they spend a lot of money suing a corporation winning sometimes winning millions of dollars and then you the consumer gets what you get a $5 coupon for for the damages done to you and they reap the millions of dollars to be made that this isn't ripe for reform I don't know what is. The class action the class action issue is it's an important one because it's it's happening in Congress it's been going on for the last couple of years and it will be front and center. It may be the first piece of legislation on tort issues that Congress deals with. What this refers what it let me just explain a class action is. You know General Electric company you have.

Let's get insurance company. A life insurance company. Maybe 10000 people across the country or 500 people in a particular state purchased the same type of life insurance. And there was a hidden see in that life insurance contract you were in a made aware that the it was a fee that maybe only cost you a small amount of money but when you add it up for all the people who bought those life insurance policies it adds up in the millions of dollars. So the lawyer a plaintiff an individual might find out about it. They were being overcharged. This often happens on phone bills on mortgage mortgage agreements etc. or entrepreneurial lawyer might discover that this large company was ripped it was ripping off consumers. Now typically what it is is a relatively small amount of money in some cases it can be thousands of dollars there's these very large cases defective pipe was

sold by a company and it went into thousands of homes across the country and people had to completely rip out their piping because after a few years it started leaking. That was worth thousands of dollars to those individual homeowners. Similarly lots of often occasionally defective siding it's put on houses. It deteriorates dramatically in the weather. People have to rip it off it. Did you know the weather has the underside of their house and then they have to replace it. Those things are worth many thousands of dollars. There's lots of it. These other cases that are smaller they're typically you call them nickel and dime cases because you know maybe 10 20 100 bucks they're worth not more than that. What it's easy to say that in those cases the lawyers are getting three million dollars and I'm only getting 10 bucks. I think people have to put it in perspective. They have to see well it's 10 bucks for me. But if you multiply it times 100000 people that's 10 million dollars. And so that's the first thing I would say about these cases you got to you got to see it for not just you as the

as the one class member but you as one of monic 100000 class members. The second thing is that these cases these class actions discourage or seek to discourage future bad behavior by corporations so they send a very strong signal. You may get caught and you may be on the hook for 10 million dollars later on. The third thing is a point I would agree with the caller on. There are some law firms some attorneys who we believe act improperly. They bring class action cases that big cases will often be very meritorious. In fact in most cases if not they're very meritorious. But the attorneys negotiated a bad settlement for the consumers. They're ripping off the consumers the consumers might get a coupon settlement. You often hear that what that is as a coupon instead of you getting your 10 bucks. That's your share. You might get a hundred bucks or 500 bucks. You might get a coupon to buy a product from

the same company that ripped you off. Man does that make your blood boil. And Public Citizen actually for a number of years now has spent a lot of time with our lawyers opposing these coupon class action settlements because we think they're not in the interests of consumers. It is easy to fix the coupon class action problem just to put up some roadblocks that attorneys have no incentive you can tie how much attorney gets with how much. The coupon is redeemed and I guarantee you they won't do many coupon settlements because consumers don't want to redeem them when they get ripped off. They want the little money in their pockets at the fair share. So this there's this big debate in Washington that's going to occur in the next Congress in January February about a class action bill and the Chamber of Commerce and the business community will say stop coupon settlements. Really what that bill is about is not stopping coupon settlements. The fact is that that was never

dealt with in their legislation so we should point out their hypocrisy on it. What it is about is making it harder for you as an individual consumer who gets ripped off by a large company to band together into these class action cases and bring and hold these companies accountable. Well I appreciate the coming of the call and I have some other folks I want to get onto. Time is rapidly moving along here were moved. On to our last 15 minutes but let me ask real quick again. It seems that we're coming back to what is for a lot of people a central issue and that is the amount of money that attorneys can make representing clients in these cases and that gets us back to what for a lot of people I think is the major thing that that they'd like to see happen under reform and that is to is caps on not only caps on damages but caps limits on the amount of money that the attorneys can collect. Yeah well let's talk about that. And I if we could I would like to reserve some time to talk about caps on dish because it really is a national debate on the attorneys fees question. Well I know when you sit out here and you look at it you see this attorney's going to get a

third say in my case I might get $300000 for the injury that I've suffered. Well that means the attorney's going to get a third they're going to get. I'm going to get $200000 I'm the one who's injured there you know $100000 that sounds very inequitable to me. Here's the reality of the situation. These attorneys take these cases for free. You have no upfront costs. They all their time is eat is paid for by themselves by their law firm. They hire. They go through lots of depositions. The investigative period they hire expert witnesses in a minute. Serious medical malpractise case that can cost you tens of thousands of dollars to have expert witnesses anyway for an important case. They might spend 50 to $100000 up front out of their own pocket for that particular case. You're not being charged a cent on top of that. Most of the

at least half of these cases they don't win they don't get a settlement they don't get a jury award. And they're running their business. So what what you have to understand this award is paying for them to run their business it's paying for all the costs that they've shelled out upfront and it's paying not just for those cases that they quote When it's also paying for all those cases they lose. And believe me they lose a lot of cases not because they're not meritorious cases. You can see the dynamic here. You'd be crazy to bring a quote unquote frivolous lawsuits because you would fast go out of business because you're the guy who's putting all the costs up front. The plaintiffs not on the hook. Usually what it is is the plaintiff want you to bring a case the person who's been injured want you to bring a case and you look at it and you say well it's frivolous. I'm not going to bring it or it's not just not worth enough money so usually the attorneys are rejecting those cases that are lesser important lesser value what you might define as

less is less important now I don't want to use the word frivolous because the cost of bringing these cases is so is so high. The second point about this is. The attorney's fees question is if you don't. This is a way for the rich people can afford lawyers they can afford to shell this money out up front. It's painful but for most of us we don't have those kinds of resources. We need a system where somebody is willing to pay for it upfront take the risk put the investment into it to to bring to get you justice. And if you take away if you cap fees at the much lower level which is what the other side wants to do you're going to take away a big incentive for these attorneys and you believe me you want the best attorney to bring these cases to even be involved in this kind of these kinds of cases. They there will be an incentive for them for the better turners in particular to shift out of this what's called the

contingency fee system where they're totally on the hook until the case is won to just going to working for corporations and getting a standard hourly rate. Now I know I want if I'm injured my family some in my family I want the best lawyer and I want to be able to have them take the case that if you lower how much they can make off that case they're going to be many fewer lawyers bring these cases. And that's just a way to stop justice for people in general. We have several callers here we'll continue our guest in this part of focus thought maybe Frank Clemente He's Director of Public Citizen's Congress watch we're talking about. For instance second of two programs we've done this fall on the issue I'm sure we'll be talking about it more next year on the program. If you're interested by the way in hearing the preview shown you do have Internet access you can hear the conversation we had November 30th with Sherman Joyce president of the American Tort Reform Association. On our website you are U.S. dot edu. We have a caller Syrah next. Someone in Chicago line too.

Hello good morning. The June or July issue of Reader's Digest had an article on medical malpractise and there were two important points in the article. The first was that 5 percent of all physicians incur about 51 percent of all the medical malpractise suits and secondly that are the horrific cases that they highlighted in the article. All of the physicians were still practicing. So the general thrust of the article was that the A.M.A. or the association of physicians are not monitoring themselves and that these 5 percent of the physicians who are incurring more than half of the lawsuits are able to go on practicing and continuing to think in current cases. And as you say I think you mentioned this earlier most of the time they settle rather rather than going to court so that they can they charge. Well I have no judgments against me and so I as your organization at all. Talking with these professional organizations and seeing what they could do to monitor themselves because. You know if you think that only 5 percent off efficiency occur more than 50 percent or slightly

over 50 percent of all the medical malpractise it's that there's almost like a problem that the enemy would be able to take care of the South. You know that this is actually our data that's our figure and it's based on. The National the U.S. government has a thing called the National Practitioners databank. And what it is is insurance companies are required to report to the federal government when they make a payment for a physician a malpractise payment for a physician. And we push this patient safety issue very hard. The the important thing about that 5 percent of doctors 50 it's actually more like 55 percent of payments now those that 5 percent they don't just have one malpractise payment each of those doctors has at least two now practice payments so there are repeat offenders. And you know you three of them account for a very large those who have three or more malpractise payments account for a very large percentage as well. What the callers are getting at is really the cost of the medical malpractise

system and most people think what the cost is. You know what the doctors pay for insurance rates and so on at the Institute of Medicine did a very important study a couple years ago called To err is human. And they said there's 48 to 90 thousand deaths a year just in hospitals. And those deaths are preventable deaths. In other words the hospital and its personnel could have prevented that person dying. Extrapolate to Illinois that means you have about 900 to 43 hundred deaths every year in hospitals that are preventable and it costs you again the Institute of Medicine extrapolating to Illinois costs your state for these medical errors in hospitals alone anywhere from seven hundred fifty million dollars to 1.3 billion dollars every year those are very sizable dollar costs and death not to mention the toll that occurs to families. We think that it's it's remarkable to us that the medical society doesn't come together. Patient Safety

groups and consumers and say we're going to stop the bad doctors the repeat offender doctors we're going to create policies to to to change it. Let me give you the the thing that we push. And I'd say people haven't taken it up yet. American Society of Anesthesiologists major professional society for anesthesiologists. They're the folks who put you to sleep in hospitals when you go in for surgery. They used to be sued more often than any other profession and any other medical profession because people died people were injured from anesthesiology. Now they cut they went through a major program to figure out what their doctors were doing wrong they hired academics to examine all the closed files. The malpractise case files that have been filed against them they got them from the insurance companies medical professionals looked at it figured out what was going wrong they developed a protocol list for the procedures all the checklist of the right things they should do the wrong things they should avoid when they're treating people. They cut

their hair. The number of lawsuits filed against them got cut in half over the last two decades and their malpractise insurance rates today are the same as they were 20 years ago. $18000 on average a huge patient safety initiative. And my question is why isn't the American Medical Association which is based in Illinois and the insurance companies. Why aren't they getting together and doing the same thing for obstetrics surgeons all the key professional medical professionals. Why aren't they doing that and trying to take away people's legal rights. Thank you that's a good question. Well thank you for the call I will go on here too. Next person in line this is a listener in Urbana. It's Line 1. Hello. Hello. Yes well actually my question was very close to the one of the previous caller. It seems to me that the medical malpractise is where tort reform almost always comes up and this seems to

me to disregard the fact that while every state has some kind of board of doctors to examine medical malpractise most of them never take any action. And it seems to me this is quite in line with the inability of most professions not to be able to police themselves in the move that the lawyers are doing this for a fairly effectively. That's a good interesting way I mean we are a health research group Public Citizen Health Research Group every few years does a study on how good medical state medical boards are at policing. What we call dangerous doctors bad doctors doctors. You know that I make mistakes or that there's substance abuse or you know harm people through medical malpractise or whatever sort of a range of different criteria and what we find is that most Boers do not do a very good job of policing

doctors and typically the reason is a they don't have enough money. B it's often the doctors themselves that control the board or the board has a very close association with the Medical Society of the state. And it's a it's a club in a sense and people don't want to rock the boat. And I talk to lots of hospital ministries who say they have a very hard time even getting rid of bad doctors they say the bad doctors bring a lot threaten to bring a lawsuit against us for wrongful termination. And they don't want to go through the hassle and so what they do is quietly let that doctor go and they won't give a bad reference and they move on to the next hospital or the next state. It's crazy. I think again I think the Last Call is go Urbana number three for someone else right here. Hello. Yes my question is are you saying. Couric Are you saying. Couric T I T. And what the heck does that

mean. It's tort with a T and maybe actually probably Mr. Clemente that might be a good idea again too just for anybody who's not sure what it is we're talking about to very quickly. Run over what a tour it is people who are familiar with the law. Of course they know that term but everybody else we don't talk about torts maybe the thing that people do talk about is personal injury lawsuits and yeah it's wimp whatever people get that I don't want to talk where I come from oh it's on but it's a Latin word I actually don't know their vacation and I can't tell you exactly where it's from. Is Latin Well in any sense the just for to answer the the questions caller is do you think it in shorthand in the term that people will understand is if you say personal injury lawsuit that's that's what we're talking about. That is what we're talking about. Yes it's I mean business is bring torts to. That's not personal injury that's that's you know business being harmed but right now what we're referring to is when the when the president talks about

tort reform or the business community talks about tort reform they're talking about the lawsuit that you as an individual brings against a doctor for medical malpractise a hospital or an HMO or a drug company or a business that you think stole money from you. We're a car company that manufactured defective product and you're trying to get compensation because you were injured by that defective product. It's those kinds of cases where people bring it to back a case against the tobacco company because they were deceptive about addiction issues. Those are all personal injury lawsuits against these companies. They're called torts. Again I hope that gets at the question the caller were pretty much at the point here we're going to have to stop with a much more to be discussed and I am sure that we will be hearing more about these issues next year and that will have some more discussion of them here on the

program as an earlier caller mentioned there have been various states that have instituted some of these reforms and in fact the package that I believe is being discussed and endorsed by the administration. It's modeled after tort reform that was enacted in California back in the mid 70s so various places they have been they have dealt with on a state by state basis. The administration has said the president has said this is very important we want this to happen but the well that the wheels grind fine they grind exceeding slow in the wash unnerve Maybe it's the other way around. Do you think it is likely did that. We we actually will see some some changes made on the Nash. Level. I think the medical malpractise issue I think it's very difficult to see how they get the vote to cap damages. At least at the levels that they've been talking about. We had forty nine. The other side of the pro CAP members were forty nine out of a hundred in the

last Senate. And they may have gained in three or four more votes. But it's still short of the 60 votes they need to cut off debate. And folks in Illinois are your you're a senator Dick Durban who's now in the leadership. He's a major fighter for patient and consumer rights in Congress he actually singlehandedly stood on the floor last Congress on the Senate floor and then debated for hours. The other side was phenomenal in terms of his knowledge and his ability to rebut the claims made by the other side folks in Illinois should be very proud of his work. All right well and in response by the way to the question of the caller about tort I am I am told I'm not quite sure of the source but I am told that tort comes from French it's the French word for wrong and that that it was put into use of the English common law. So there you have it. We want to thank you very much Mr. Clooney for talking with us. Again for people who are interested in reading the position of Public Citizen on these

issues you can look at their website which is w w w dot citizen dot o r g. Also if you're interested in hearing the interview that we did on November 30th with Sherman Joyce president of the American Tort Reform Association making the arguments for reform you can go to our website if longer have internet access since WRAL dot UIUC dot edu and I'm sure we'll be talking about this more in the future.