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Article published May 11, 2003
Much of blame for rising malpractice premiums rests
with insurance industry
In writing this opinion regarding
so-called tort reform in America, please remember it is offered from a unique
perspective. I'm not one to tout the party line, and as complex as the problem
is, it would be an insult to do so.
I am just an old-fashioned, Southern,
yellow-dog Democrat, a Jeffersonian populist. As such, I believe that the true
wisdom in a civilized society rests in the inherent common sense of the populace
and not on the political deflections of its super-educated elite who have
clearly another agenda.
Of course, if one does not believe in the wisdom of
the people, then one would be reluctant to place power there. For those of us
who still place our faith in "the people," however, what magnificent power there
is within a jury of 12 good people "right and true." (History reminds us that
someone else put his faith in 12 folks, and 11 out of 12 ain't bad.)
Where
else can a true cross section of the community render decisions affecting even
the mightiest among us? The jury system of control and balance is a key reason
that America has not evolved into a dictatorship -- although if we are not very
careful, it may or could evolve into some sort of elitist controlled system. And
are we not already too close to that?
The recent crisis in the medical
malpractice insurance industry with its unreasonable premiums is very
bothersome, and if one expects me, as a member of the American Trial Lawyers
Association, to begin an uncivil attack against the medical profession, he shall
be severely disappointed.
As we further approach the problem, please keep in
mind the basics, and that for society to function, three professions must be
recognized and treated as such. These are: the physician, the lawyer and the
minister. Please understand by the word professional, I mean that such a person
does in fact become a part of something larger than himself -- that is, he loses
a part of himself and "merges" into what he does.
As such, the physician's
province is to tend to the sick, to heal the sick and to assure that the
physical body can be maintained so its spiritual center can properly flourish.
The attorney is a free agent, obligated to absolving conflict and improvising
solutions for people in secular conflict -- another necessity if the inner
spirit is free to flourish. The minister is not self-serving, and based upon his
keen intellectual understanding of his particular religion's tenets, he
dispenses advice committing the souls of his flock unto The Lord -- a daunting
task by any measure.
Upon these three pillars rests the basis of our
civilized society. For any of the professionals to turn on each other with
uncivilized anger demoralizes the populace and its faith in professional
institutions both public and private. Note that an insurance company is not
among these and is like a bank -- a large holder of millions of dollars
collected to spread losses and (this is often forgotten) to ensure civility in
the transfer and free flow of land, labor and capital (the building blocks of
our free enterprise.)
One must look at the source of a problem and understand
who has the power to control that problem.
Here is my opinion: It's pretty
clear that large insurance companies, and other corporations in "Enron-istic"
fashion, collected huge sums of money in the 1990s. They invested this money
poorly in the great fanfare of the stock market bubble. Every dollar unpaid in a
valid insurance claim could be held and thus invested.
Therefore, since the
portfolios were climbing rapidly, who cared about paying off legitimate claims
and settling with a plaintiff who was the victim of medical negligence? So they
did not settle. After all, with AOL at $100 a share and air miles flowing, it
was a great life at the top. It was our grandmothers, our daughters and our
friends, however, who were the victims and the vanquished.
And as the
contingent liabilities of insurers escalated rapidly as unpaid claims rose, huge
legal bills mounted, and the defense bar billed out countless hours in the
process of crushing legitimate claimants. But for a few giants of the
plaintiff's bar, all would have been lost, as jurors, through their sensible
views, came to realize. Some juries that realized the truth delivered some
profound verdicts in anger.
Thus, with the difficulty of a truly lost
election wherein confidence was shaken by the Supreme Court's delivery of a
ruling and a new president installed, compounded by the tragic image of two
towers burning and falling within the heart of our economic system, we panicked.
The house of cards was falling. Within weeks, billions of dollars in portfolios
disappeared like a January snow in April.
As accounting scandals wrecked the
"kingdom", accusing fingers searched for parties to blame, and lawyers were an
easy target. And how uninformed do the insurance companies really think the
medical profession is? The physician is another true victim of these insurance
raptors who descend and devour everything that threatens.
Medical
professionals continue to be attacked daily by insurance carriers who
second-guess procedures and demand that their approval be given for even the
smallest treatment. This is so much so that doctors cannot even practice
medicine for want of dealing with the administrative nightmare. The physician
has to spend an inordinate amount of time just trying to get paid for his
work.
The problem lies in a lack of regulation of an insurance industry that
would be far better off with reforms that really ensured proper claims
processing and expeditious payment.
We need premiums kept under control, and
we need them to be based upon realistic calculations and not on the few
physicians responsible for the majority of claims. Insurance carriers need to
understand that their first and primary duty is to pay valid claims and not to
pad the pockets of CEOs and boards of directors. Reforms must be armed with
teeth to assure claims are paid and the process stabilized.
Doctors, as well,
need to better regulate their profession and de-license "bad" doctors. They also
must demand proper compensation from the insurance carriers so they are paid
what their services are worth.
Let juries control the strings of power and
keep the power in the hands of the people. Trust in our Constitution, and don't
let smoke and mirrors fool you and twist your thinking. Keep the lawyer as a
free agent. He or she is the only line of defense between a free people and a
government or institution engorged on too much power.
Franklin S. Henson
is
a Spartanburg attorney.