TORT TIED TO HEALTH CARE!

by Steve Fair

Last week, the State Senate Judiciary Committee met and passed five bills that if signed into law would represent real tort reform in Oklahoma. The five bills would eliminate joint and several liability, establish a cap on non-economic damages at $250,000, and allow damages to be paid out in periodic payments and not just in a lump sum. They would also require that juries be informed of the tax implications of any awards an injured party might receive. Tort reform is a key agenda item for the Republican led legislature this session.

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“We have been working on lawsuit reform for years, taking mostly an incremental approach because we did not have the numbers or a Republican governor to support strong reforms,” said Senator Anthony Sykes, (R-Moore), Judiciary Committee Chairman. “These bills protect Oklahomans, our doctors and our businesses from frivolous lawsuits.”

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“Oklahoma is way behind the curve on these reform measures. Just a few short years ago a Democrat President Pro Tem wrote a letter to encourage attorneys in other states to bring their lawsuits to Oklahoma because we had not enacted these reforms that our neighbors had,” said Sykes. “We are sending the opposite message today, Oklahoma will no longer be known as a lawsuit destination state.”

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The lawmaker Sykes is referring to is former State Senator Stratton Taylor (D-Claremore). In 2003, Taylor sent a solicitation letter to national trial attorneys encouraging them to bring their lawsuits to Oklahoma after Texas passed similar lawsuit reform to what Sykes is proposing.

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"With recent events that have occurred in Texas, you may be looking to file cases in Oklahoma," Taylor wrote, adding that "I wanted to take an opportunity to introduce our law firm."

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Taylor’s letter made its way to the Wall Street Journal, the business community’s newspaper. They attacked his brazen abuse of ‘forum’ shopping and in a December 19, 2003 editorial, wrote, “Average Oklahomans are likely to continue to see higher insurance costs, fewer doctors, and all of the other troubles that come with an out-of-control tort system. In short, you're doing fine, Texas. Oklahoma? Not OK.”

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Sykes’ proposals have naturally encountered opposition from trial lawyers- both Democrats and Republicans. In blogs, faxes and emails, the barristers contend Sykes hates the U.S. Constitution and is no conservative. Never mind that Sykes is himself an attorney and has achieved a near perfect conservative rating by the Oklahoma Constitution.

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The medical community has been crying for tort reform for years in the Sooner state. Back in 2006, the Oklahoma Alliance of Physicians for Tort Reform surveyed 775 Oklahoma physicians and found that eighty seven(87) percent practiced ‘defensive medicine.’ That means the docs ordered more testing or conducted more patient visits than they normally would because of the threat of a lawsuit. Twenty five percent said they had either quit practicing medicine or were leaving the state to escape the high malpractice insurance premiums in Oklahoma.

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Sykes said that Oklahomans will not only benefit economically by reducing frivolous lawsuits but the state will also be more attractive to doctors seeking to establish practice.

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In a state with a shortage of physicians, that is a good thing. “Oklahoma is dead last in most rankings of number of practicing physicians per 100,000 people,” says Dr. James Hess, vice president for health care administration for the OSU College of Osteopathic Medicine. “We’re not producing enough doctors and our physicians are a higher average age than physicians in other states. A perfect storm is coming.” “The situation is very bad. The demand for physicians is already outstripping the supply and bigger shortages are coming,” concurs Dr. Dan Duffy, director of the community medicine track at OU School of Medicine in Tulsa. “We’ve been asleep at the wheel.”

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Lawsuit reform is a necessary step in improving Oklahoma’s long term health care. Sykes has taken a personal career risk by carrying this legislation. The personal injury trial lawyers will not go down without a fight because true tort reform would dramatically impact their livelihood. The ‘ambulance chasers’ are certainly within their rights to protect their turf, but painting themselves as ‘Protectors of the Constitution’ is a stretch.