In Defense of Litigation

In Defense of Litigation
by Mitch Frank

George Harrison once sang about the “Sue Me, Sue You Blues.” Well, corporate America could certainly hum a few bars for you. In fact, they’re spending millions of dollars on advertising to tell you about their troubles.

It’s a common refrain heard today – it’s too easy to sue. It’s an issue coming up again this week in Congress as the House of Representatives debates various possible patients’ bills of rights designed to fight some of the abuses of managed care in America. And you know the HMOs are grabbing harmonicas and steel guitars.

The House is debating three possible bills. Two give patients the right to sue their managed care providers for not giving them the care they deserve or the law requires. One bill allows patients to sue in state courts, the other allows suits in federal courts, where juries generally award smaller damages. Both bills are cosponsored by Republicans, one by Rep. Tom Coburn (R-OK) and the other by Rep. Charlie Norwood (R-GA). The doctor and dentist decided to tell their party enough is enough – the American people want better health care.

The majority of Republicans, however, are still supporting a third bill proposed by Rep. John Boehner (R-OH) that does not allow patients to sue HMOs, mirroring a Senate bill passed earlier this year. Although the House bill at least applies to all Americans in managed care, the Senate version only applies to patients not covered by current state laws.

Now, the argument the insurance industry and proponents of the Boehner bill offer for their refusal to allow patients to sue their HMOs is that a never-ending march of frivolous lawsuits would drive up the costs of managed care so much companies would be forced to raise their premiums and millions of people would not be able to afford insurance. Furthermore, they argue these lawsuits are just a way for trial lawyers to make more money. They don’t really help people.

It’s an argument we hear all the time these days. Lawsuits are frivolous. They’re just a devious plan concocted by trial lawyers looking for a fat payoff. It’s an argument heard as a lot of landmark suits are being brought, being lost and being won in courthouses throughout the nation.

First there were the tobacco suits. Oh sure, people had been suing big tobacco companies for years based on the argument that the companies were knowingly selling a product that addicts its users and then slowly kills them. Most insulting of all, people were paying for the privilege of dying. For years, juries said these people had no one but themselves to blame for using a product, despite the nicotine’s addictive qualities.

But then juries began to change their minds. And some states’ attorneys general hatched a brilliant idea – What if the states sued for the cost of medical care they were providing these people? The tobacco companies became very scared and started making deals. And Republicans in Congress eventually allayed their fears and said, “Don’t worry. We’ll take care of this. What are lobbying dollars for?”

The back-and-forth over tobacco companies’ liability for lung cancer has led to the current U.S. Justice Department lawsuit against Big Tobacco. The fight is far from decided.

Then a pack of cities looked at each other and said, “Hey! If they can sue tobacco companies for cancer, why can’t we sue gun companies for not being more careful whose hands their guns fall into? At the very least they could make guns safer.”

And so New Orleans, Chicago, and a horde of other towns started launching lawsuits against gun manufacturers. And the NRA said, “Oh crap! We better get Moses back out on stage.”

Anyone watching this fight might think America is a little lawsuit-happy. And that’s what the industries being sued want you to think. They’re pouring out commercials telling folks that laws such as the proposed patients’ bill of rights would just enrich lawyers and leave you without any insurance.

Now, I’m not a big fan of trial lawyers. Who is? Having interviewed several lawyers helping the cities sue the gun industry, I have no doubt they are looking for big bucks. They are, to be blunt, ambulance chasers in larger, more prestigious firms. And to be fair, the Trial Lawyers of America gave more in political donations last year than the NRA.

But the real debate here is legislation versus litigation. And litigation is as much a part of our democracy as apple pie, Coney Island, and pro wrestling.

Litigation, the right to sue, is just another way of citizens making their laws work for them. One way to get things done legally in a democracy is to vote for a representative, such as a congressman or senator, who will go enact a law for you. The other way is to challenge someone in court and let a jury of your peers decide who’s right and who’s liable.

Now, I don’t know if you’ve been watching the U.S. Congress lately, but it’s not exactly a hotbed of legislation passed to protect the common man. You would think lobbyists had elected all of our legislators. And states are not doing much better. If you doubt it, look how fast many state legislatures enacted laws depriving their city governments of the right to sue the gun industry when those suits started catching on. Charleton Heston and the NRA said a few words, and the next thing you knew, an entire industry was exempt from things like the Consumer Protection Act. Our U.S. Congress is considering exempting the gun industry from all such suits.

But these suits are working in ways many never predicted. Last week, representatives from most of the major gun manufacturers in America sat down to negotiate with lawyers representing the cities with suits. The cities were considering dropping the suits if the industry enacted its own regulations. The threat of litigation can force industry to reform when Congress fails to. Those lawyers may make a mint, but they seem to be getting more done than the lawyers we elect to represent us.

So, when you see all those ads proclaiming any managed care reform allowing patients to sue is just an excuse for trial lawyers to make money, just think about this: If an HMO’s attempts to cut costs, deprive a patient of the best care possible, care that could mean the difference between life and death, shouldn’t the patient be allowed to hold the HMO responsible? Maybe the threat of lawsuits will force the managed care industry to shape up and serve its patients better.

One more thing: if HMOs continue to argue that they can’t make profits without cutting costs or raising premiums, maybe it’s time Americans didn’t have to pay premiums. In the nation with the best health care and medical technology in the world, why should anyone be denied the best care possible?

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