Tuesday, July 29, 2008

Weekly Opinion/Editorial
by Steve Fair

Tort deals with compensation for wrongs and harm done by one party to another's person, property or other protected interests. Tort reform refers to the idea of changing the law applicable to tort. The most contentious area of tort, and the area on which tort reform advocates focus is personal injury. The levels of compensation for accidents vary greatly between different states and jurisdictions, but there has been a general upward trend in the awards for compensation nationally, which has predicated the need for tort reform. The idea of lawsuit reform varies greatly between states, but currently Oklahoma has a competitive disadvanage vs. Texas.
In 2003, Texas Governor Rick Perry declared medical malpractice lawsuits a statewide crisis. Of the state's 254 counties, more than 150 had no obstetrician in 2003, and more than 120 had no pediatrician. Lawsuit reform became a driving force in the general elections of 2002. And when Texas voters gave Republicans majority of both chambers of the legislature, lawsuit reform was a top priority. House Bill #4 was adopted and The Wall Street Journal called the changes in HB 4 'Ten Gallon Tort Reform.' It has been referred to as a model bill by numerous commentators because it addressed so many changes needed to extinguish the litigation crisis.

According to Texas State Representative Joe Nixon, "Doctors were caught between rising medical malpractice insurance costs and lower compensation from insurance-provided benefit contracts and low Medicare/Medicaid reimbursement levels," "Combined with increasing hassles and demands to appear in court or in depositions, doctors were choosing to retire or leave Texas. In doctor-per-citizen ratio, Texas ranked 49th out of 50 states."
Since Texas passed the sweeping legislation, Doctors are flocking back to the Lone Star state. Seven thousand doctors have applied for licenses since the passage of lawsuit reform, and the state licensing board anticipates adding another 5,000 doctors in the next 15 months. And some of those doctors are coming from Oklahoma. According to Dr. William Oehlert, president of the Oklahoma State Medical Association, there have been inquiries from Texas seeking OSMA's mailing list wanting to contact Oklahoma physicians about possibly moving south.

According to Oehlert, lawsuit reform is hurting health care in Oklahoma. He says it is becoming more and more difficult to get physicians to go into some fields, and some are either leaving practice or avoiding certain lawsuit-prone procedures. According to Oehlert, "I've been told that there are physicians leaving the state or - probably more appropriately - not coming into the state because of the reputation that Oklahoma has in being a lawsuit-friendly state."
Oehlert said that some doctors are leaving clinical practice, have stopped delivering babies and steer clear of ER room work because of the threat of being sued. Some rural areas report difficulty in attracting or retaining physicians, particularly in some specialties.

"The big thing is that our physician numbers haven't really increased significantly,"
Oehlert says. "And as our population ages, that's going to be a major area, in gyn, cardiology, internal medicine, family practice, general surgery, because those type of health problems that would be applicable to those physicians, you're not going to have the physicians."
Opponents of tort reform contend that supporters exaggerate the costs and ignore the benefits of the current tort system. For example, opponents of tort reform contend that lawsuits encourage corporations to produce safer products, discourage them from selling dangerous products such as some forms of asbestos, and encourage more safe and effective medical practices. But in reality the only benefit to the current tort system in Oklahoma is to the trial lawyers.
In 2007, the Oklahoma Senate passed an omnibus tort reform bill by a narrow vote of 25-23. The year before, a tort reform package passed the House of Representatives, but was killed in the Senate. During the 2006 election, the Democrats lost control of the Senate and were knotted up and tied, 24-24, with the Republicans. It was sent to the Governor, but he vetoed it on the last day he could legally do so- a Saturday. It went unnoticed by most Oklahomans. Henry’s veto was overturned in the House, but upheld in the Senate.
It was not a surprise that Henry vetoed the bill because his best buddies and biggest campaign contributors are trial lawyers. Henry during his first election bid, outlined twenty-one tenets necessary for tort reform. Seventeen of the provisions were included in the bill he vetoed. Henry said he concluded several provisions of the bill were unconstitutional and it unduly restricted Oklahoman’s ability to seek justice. He also thought the bill did not do enough to curb frivolous lawsuits. When Republicans take control of the State Senate in November, tort reform will not be far behind. Texas has put forth a reform model that has been sucessful. Sooners hate to lose to Texas in anything but on tort reform the Longhorns have beaten us badly.

Please check the Ethics reports for legislative candidates in your district. The Trial Lawyer lobby is not going gentle into that good night. They are contributing large amounts to candidates who if elected will work to stop tort reform! To check the candidates in your area, click on link: http://www.state.ok.us/~ethics/

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