Tort reform and the Senate: Buying political influence

by Douglas W. Jackson, MD

Douglas W. Jackson

Surgeons talking in the locker room often have discussions as to why tort reform cannot, despite repeated attempts, pass in Congress. They all agree on the fact that changing the current system and malpractice climate makes sense. However, there are many reasons why it will not be changed soon. Major roadblocks to any meaningful reform are the state and federal lobbying efforts of the trial and plaintiff lawyers.

As a group, the lawyers’ effectiveness in blocking common sense legal reforms makes the medical profession look like neophytes in our efforts to exert political influence. The lawyers have gained their influence primarily through large donations, fund-raising efforts, being focused on their objectives and the number of legislators who are also lawyers. Their willingness to donate is driven to maintain the profitability of the current system. Personal injury lawsuits, class-action suits and other claims represent a $40 billion per year industry. America’s legal system is propped up by the success of creative contingency-fee lawyers. The trial lawyers, plaintiffs’ attorneys and personal injury lawyers justify their actions as necessary means to be the champions and protectors of “the little guy.”

Anyone familiar with the lawyers’ sway in politics should know the boast the late Texas lawyer, Fred Baron, made about the trial bar’s political influence. In 2002, a Wall Street Journal editorial claimed that the plaintiffs’ bar was “all but running the Senate.” Baron reportedly reacted by saying, “I really, strongly disagree with that, particularly the ‘all but.’”

The trial lawyers have thrived under the Supreme Court’s Buckley v. Valeo decision in 1976 which affirmed the constitutionality of dollar limits on campaign donations to candidates. However, that law did not slow down their influence buying. The plaintiffs’ associations have thousands of members who are willing to write checks within the current $1,000 per-individual limit and that is only a small portion of the donations and fundraising used to game the system.

Pay-to-play vs. pay for performance

The Wall Street Journal also reported an analysis of campaign donations from 25 prominent plaintiffs’ law firms specializing in the area of shareholder suits. These firms, their lawyers and family members contributed a total of more than $21 million in the past decade. The interesting aspect of their giving is that 40% of those donations were apparently sent in support of candidates outside the donating firm’s home state. The shareholder lawyers are just one example of this extensive influence. Imagine the additional influence pedaling by the firms specializing in pension plans, class-action suits (tobacco, asbestos, lead, guns, mold, etc.), individual product liability and government contracts.

In addition to what can be raised by individuals, families and friends, it appears it is easy to track donations from one of the arms-length plaintiffs’ organizations, the Attorneys Congressional Campaign Trust. According to data from the Center for Responsive Politics (CRP) the trust has given $33 million in political action committee (PAC) donations to federal campaigns since 1990. According to CRP, the total sums donated to federal political candidates by lawyers, excluding lobbyists, during that time period has exceeded $1 billion. As a result of financial numbers like these and possibly even more, their ability to keep tort reform out of the recently passed health-care reform legislation should be no surprise to us.

Congressional campaign contributions by lawyers in the last election cycle far exceeded the total given by physicians — probably 16- to 120-times more. Current major political powers in Washington who have received some of the larger donations from attorneys and their families, firm workers and related PACs include: Senate Majority Leader Harry Reid (D-Nev.); Senate Majority Whip Dick Durbin (D-Ill.); and Sen. Arlen Specter (D-Pa.); just to name a few. President Clinton had them as a major contributor and President Obama has had considerable help and support from the legal community. Their funding is also influential in gubernatorial elections, state legislator races and in the attorney general positions in many states.

In addition to their targeted donations, the lawyers protect their turf and are often behind establishing and maintaining judicial regions which were created to offer favorable litigation environments. Cases are often filed specifically where the judges have a history of being friendly to plaintiffs and where out-of-town defendants may find it difficult to get favorable decisions from the local juries.

Pilot reforms

The permeation of the trial and plaintiff attorneys’ influence is even deeper then I have implied in this commentary. Medicine getting “pilot” tort reform packages is a token. For example, many states have done pilot projects for years with caps on pain and suffering. We have the data and results in those states.

As orthopedic surgeons, we need to understand the main reason we are ineffective in getting national tort reform. In medicine, we spend our funds trying to interact on a diverse array of pending legislative bills and proposed regulations. Our resources are often spread thin. The attorneys are focused in their mission and the only hope we have of making inroads to meaningful tort reform is if the public becomes engaged. Until it is more transparent to all voters and there is recognition of the influence buying that trial and other plaintiff attorneys have, the public will not hold our elected representatives accountable. The few million dollars raised each year are too few and the 600,000 physician votes spread across this country are not enough to successfully push tort reform legislation through the Senate.

It will be interesting to see how or if the recent U.S. Supreme Court decision, Citizens United v. Federal Election Commission, will impact or change the role of those involved in influence pedaling in our political system. As a generalization, I fear the further removal of limits of donations and fundraising will disproportionately keep the incumbents and status quo in office. The legal profession’s influence in the Senate remains a challenge to us, our patients and our ability to practice medicine as we prefer. It is the major reason, as the American Academy of Orthopaedic Surgeons said, our current health care bill “lacks proven medical liability reforms.”

A note from the editor

For more information on trends in medicolegal litigation, see the Orthopedic Medical Legal Advisor.

Douglas W. Jackson, MD, is Chief Medical Editor of Orthopedics Today. He can be reached at Orthopedics Today, 6900 Grove Road, Thorofare, NJ 08086; e-mail: ortoday@slackinc.com.