Legal Reform May Do More Harm Than Good

Posted February 4, 2005 at 2:40pm

I am concerned about the disparate effects of the administration’s new tort reform laws on the minority communities. The first step in attacking this problem is to expose it.

The goal of the proposed tort reform legislation is to allow corporate entities to externalize, or shift, some of the cost of the injuries for which they are liable in tort. Tort law, as a practical matter, assigns liability to the party in the best position to prevent an injury.

In looking at the disparate impact that the new tort reform laws will have on ethnic minority groups, it is unconscionable that the burden will be placed on these groups, which are in the worst position to bear the liability costs.

When Congress considers passing legislation that pre-empts state laws, it must strike the appropriate balance between two competing values: local control and national uniformity. Local control is extremely important because we all believe, as did the founders two centuries ago, that state governments are closer to the people and better able to assess local needs and desires. National uniformity is also an important consideration in federalism — Congress’ exclusive jurisdiction over interstate commerce has allowed our economy to grow dramatically over the past 200 years.

Medical Malpractice Reform

Tens of thousands of people die each year from preventable medical errors, and minorities represent a large portion of that pool of victims. But instead of changing the medical system to prevent needless deaths and injuries, doctors and big insurance companies are lobbying to limit the rights of these patients to seek full recovery in the courts. My colleagues on the other side of the aisle have worked for $250,000 lawsuit caps, limiting the liability of bad doctors. We need to punish bad doctors and repeat offenders who account for most malpractice payouts. Insurers and the medical lobby should inform the public about the true causes of the rise in malpractice rates and seek real health care and insurance industry reforms that will protect patients and lead to lower premiums for doctors.

In Texas, and during the 78th Texas Legislature (2003), the Office of Patient Protection was created. Passage of H.B.2985 created a state Office of Patient Protection to serve as a gatekeeper to deal with consumer complaints to state health agencies.

The Texas minority community receives unreliable medicine from a relatively small proportion of doctors — a problem that health care providers have not adequately addressed. Taking away their legal rights, as is proposed under a cap on noneconomic damages, would only decrease deterrence and reduce the quality of care. Texas ranks 32nd among all 50 states and the District of Columbia when its diligence in taking disciplinary action against doctors is measured. The rate of serious actions by the Texas State Board of Medical Examiners in 2001 — 2.5 per 1,000 physicians — is barely one-quarter of the rate in Arizona, the top-ranked state with 10.5 serious actions per 1,000 physicians.

In addition to not being able to afford health care coverage, many minority patients cannot apply for public programs due to immigration issues. Even if one is a legal immigrant to the United States, there is typically a 5-year waiting period before that person can receive access to public assistance programs such as Medicaid, which explains why one in five non-elderly uninsured persons is a non-citizen.

Even among private health insurers, discrimination against low-income minorities is an issue. Some health insurers will bypass ZIP codes of areas with high concentrations of low-income minorities when they do their marketing.

Therefore, it is apparent that the minority population has been unfairly targeted by the controllers of the U.S. health care system.

Class-Action Reform

Class actions are an important and efficient legal tool for minority consumers to use in order to obtain redress and to deter wrongful conduct — which is critical given the portion of the domestic market that is occupied by minorities.

Class-action lawsuits are the only effective remedy when a large number of people are harmed but sustain small amounts of damages for which individual litigation would be inefficient. Class actions have resulted in refunds to consumers for fraudulent HMO, credit card and telecommunications billing methods; free medical check-ups for persons exposed to toxic substances; and most importantly, changes to business practices that have in some way cheated or threatened the health of consumers.

The Class Action Fairness Act would move most state court class actions into federal courts, posing a threat to basic civil rights and unfairly blocking the disadvantaged members of society, including women and racial minorities, from obtaining relief from discrimination and unlawful practices. Class-action litigation is one of the most important tools that women and other minorities can use to bring about equality.

Attack on Juries

The civil juror is widely perceived as suspicious and even dismissive of victims and their grievances. Critics who have assumed or asserted the ignorance of jurors may have overlooked what jurors know well: everyday realities and everyday people. Plaintiffs are sometimes threatened because jurors believe that they understand what reasonable persons will or should do.

Tort reform law that threatens to strip civil juries of compensation award authority in demographic areas that have a majority of minorities demonstrates a discriminatory effect. Not only would such law fly in the face of democracy, the underlying intent of this legislation also violates the equal protection clause of the U.S. Constitution.

Over the next few decades, the United States will become more racially and ethnically diverse than it is today.

Projections indicate that minority Americans — now approximately a quarter of the population — will make up more than a third of all Americans by 2030. In certain areas of the country, such as New York City, racial and ethnic minorities will account for an even larger share of the total population.

Therefore, unless we act now as legislators to thwart these proposed reforms to our tort system, the principles of democracy — the very fiber of this nation’s existence — will be severely frustrated.

Rep. Sheila Jackson Lee (D-Texas) sits on the Judiciary subcommittee on immigration, border security and claims.