July 13, 2014

Trial Lawyers Now Playing Defense

The American Association for Justice, the biggest organization representing trial lawyers, is ramping up its efforts on Capitol Hill and with the administration this week after President Barack Obama put the group on defense.

Obama, in a Monday speech to the American Medical Association, said the current medical system forces doctors to practice “defensive medicine” for fear of medical malpractice lawsuits.

While Obama’s comments were a small part of his speech, trial lawyers are worried that when the White House and Congress start cutting deals to craft a final health care bill, tort reform could end up as choice leverage to win over Republicans, conservative Democrats and business stakeholders.

The fact that Obama used the term “defensive medicine” was a red flag to trial lawyer advocates.

“Defensive medicine is a buzzword that encompasses a myth that doctors are doing unnecessary tests, thereby elevating the cost of health care because they’re worried about lawsuits,” said Linda Lipsen, the AAJ’s top lobbyist. “We haven’t seen any evidence from any reputable organization that there’s really a link between getting people to do unnecessary tests and being sued. The reason doctors do the tests is they have a profit motive.” She said the Congressional Budget Office and the Government Accountability Office have concluded the same.

Lipsen, who leads a team of a dozen lobbyists, said the AAJ plans to bolster its efforts. “We’re going to step it up because the issues are front and center.”

Lipsen said she was unable to offer specifics of the AAJ’s efforts. “We’re trying to get more details as to what he’s talking about,” she said. “It’s hard to react, because it’s pretty general at this point.” But she added that doctors and trial lawyers could agree on efforts to prevent medical errors. “If you want to save money, you could prevent those injuries and deaths from occurring in the first place,” she said.

Trial lawyers around the country say tort reform would not help lower health care costs.

“Anytime there is a bill that deals with any form of health care, it’s been our experience that some of the people who are nothing more than corporate shills in Congress will add [tort reform] so that this becomes the Trojan horse for something that doesn’t have much effect on the cost of health care,” said Kirk Wagar, a Florida-based trial lawyer who is on the AAJ board.

Added Jeff Padwa, a Rhode Island trial lawyer: “Certainly trial lawyers are listening and paying attention and are sensitive to the issue, but I don’t think the president said anything at this point that would warrant us to really push back in a major hard sort of way.”

Obama’s health care remarks and their implied criticism of the trial bar didn’t translate into conservatives endorsing health care reform. U.S. Chamber of Commerce Institute for Legal Reform President Lisa Rickard, for instance, said that while the move was “encouraging,” it didn’t change the chamber’s overall reservations about the shape health care reform is taking.

“The medical liability issue is one of a number of critically important issues facing the country in this historic health care debate,” Rickard said in a statement.

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