The biggest business lobbying group in the nation is the U.S. Chamber of Commerce which spent $47 million on advertising in 2009 to defeat health care reform in addition to $144 million for lobbying. The Chamber plans to spend $50 million in this mid-term election year on candidate-focused ads alone. The proposed legislation forces disclosure of who is funding the ads which will allow voters to better understand who may benefit from the issue. The Court’s decision also invalidated the 2002 campaign finance laws which had the support of only four Republicans. Any new legislation would need the support of 60 Senators to shut off an expected Republican filibuster.

Why should we care? Because the ordinary citizen’s rights may be eroded or eliminated through heavily-funded, corporate-influenced political advertising who can now hide behind their veil of secrecy to promote legislation to their advantage. Pharmaceutical and medical device manufacturers will be able to fund legislation to shield themselves from liability for their defective products. Liability insurance companies can support candidates who will push so-called “tort reform” to limit damages in everything from medical malpractice to punitive damages. Political campaign funding should be transparent so the American public knows who is contributing to a particular campaign and the reasons why they are doing so.

For too long personal injury trial lawyers have been the recipients of a well-funded and well-orchestrated public mis-information campaign by insurance and business interests trying to make the ordinary citizen believe the courts are being inundated with frivilous lawsuits which result in higher insurance premiums. The term “frivilous lawsuit” has become synonymous with that of the “tort reform” ilk also backed by big business interests. The truth is, that most of the litigation in this country is between businesses and insurers suing each other, not innocent victims of auto accidents, medical malpractice, defective products, dangerous drugs and medical devices or drunk drivers trying to get their just compensation for their injuries.

As the editors concluded, there is no compelling legal principle on which the new health care law can be successfully challenged. Neither is there any factual or compelling evidence that frivilous lawsuits are clogging our court system. I was taught not to call anyone a foo,l but The Advocate calls this challenge a “fool’s errand”…and I agree. Just look at the real reason for the governor’s support for the lawsuit: Jindal’s call for campaign contributions to support his campaign for reelection and “to continue the fight for our rights against an overreaching federal government”. Now who’s fooling whom?

The ruling upheld a $1.2 million jury verdict in favor of a woman who suffered permanent disfigurement of her face including gaping wounds which required prolonged, excruciating treatments to keep them from becoming infected as the result of a botched plastic surgery. The judges’ decision noted that negligence claims against health care providers had been a remedy available to Georgia citizens since 1798. The legislature’s tort reforms “clearly nullifies the jury’s findings of fact regarding damages and thereby undermines the jury’s basic function” Chief Justice Carol Hunstein wrote for the court. “The very existence of the caps, in any amount, is violative of the right to trial by jury.” she added.

In the past few years almost half of the states have enacted caps on damage awards in medical malpractice cases following intense lobbying from business, health care and insurance interests. Recently, the Illinois Supreme Court struck down a similar legislative cap against doctors and hospitals. For too long victims of medical negligence have been relegated to unfair compensation for injuries they suffered if they were unlucky enough to live in a state that had succumbed to the so-called “tort reform” fervor.

The jury system is what separates America from the rest of the world. Access to the court, especially a jury trial, should not be blocked or limited by well-financed tort legislation enacted at the behest of powerful special interest groups. Georgia and Illinois courts are leading the way in declaring the right to jury sacrosanct for all citizens, regardless of status. We can only hope more state courts will quickly follow suit.

Medicare Advantage costs the government more and is a prime target for cuts in the health care overhaul proposals. The Center for Medicare and Medicaid sent a cease and desist order to Humana and warned other private health insurers not to attempt to try anything similar. CMS was concerned that the information was misleading and confusing to patients and appeared to be an official communication about the Medicare program.

Naturally, the insurance industry trade group America’s Health Insurance Plans expressed outrage at the government’s action and issued yet another tirade against health care reform. Insurance reform of all types is desperately needed- in health care as well as liability, medical malpractice, property and casualty- you name it. It is a shame that giant insurance conglomerates stoop to scare tactics, especially directed at seniors to achieve their political goals and continue the status quo.

Health insurers continue to rake in billions of dollars in profits each year. Increased competition and insurance options is what will reduce premiums, increase benefits and enlarge access to medical care. Scare tactics have resulted in consumers losing many of their litigation rights in the areas of products liability, medical malpractice, worker’s compensation and punitive damages. Without these checks and balances on insurers, manufacturers and large corporations, the little guy, including the elderly are the ultimate losers.

Corporate giants Philip Morris, Exxon, State Farm, Dow Chemical, Pfizer, Nationwide Insurance, General Electric among others fork over contributions of up to $75,000 each to fund the effort to shut the courthouse door to more and more consumers. Their goal is to gain complete immunity for their negligent acts.

Errors in past annual reports have not deterred the ATRA. In 2005, ATRA was forced to admit they wrongly attacked the state of West Virginia and ranked it as the third worst “hellhole” in America. Despite having to admit to the errors, ATRA refused to change West Virginia’s ranking. West Virginia gradually rose in the rankings despite having passed caps on medical malpractice damages, elimination of third party bad faith, and significantly changed worker’s compensation rules. In 2002, Madison County, Illinois was labeled as one of the worst hellholes in America despite experiencing a sharp decrease in the number of lawsuits filed there. In fact, between 1986 and 2002, only 11 medical malpractice and wrongful death cases had resulted in a verdict- and only four of those verdicts were in favor of the plaintiff.

These type of “reports” along with dissemination of lists of outrageous case results which are total fabrications is simply another tool the insurance, pharma and manufacturing corporations use to cloud the truth about dangerous products and pressure state and federal lawmakers into more and more immunity from their negligent acts. If they had their way, no one would be able to file a wrongful death, defective products or medical malpractice claim. Consumers should be wary of these type of politically-driven publications. Look to see who is actually financially supporting the report and who benefits from any legislation being touted and you’ll discover the truth.

The facts of this scenario actually happened in Minnesota. And what consequences did the negligent physician face, you ask? He was barred from inpatient surgery, but could regain full surgical privileges if the Minnesota Board of Medical Practice later determines he is competent. The suspension was ordered in part because the same doctor had also previously taken a biopsy of another patient’s pancreas instead of his diseased kidney. One would think that a licensed urologist would know the difference between a pancreas and kidney, not to mention right from left. Luckily for this patient, he lived in Minnesota which is one of the few states which has refused to enact caps on medical malpractice lawsuits so he can pursue his rights in court for full compensation for what was done to him. If he had been a resident of the majority of other states, his recovery would be limited to the amount a bunch of politicians decided was “fair”.

So, how much is your kidney worth to you?

So why is it that one of the most important sectors of our national economy is one of the least regulated, unaccountable and most profitable industries? Because these insurers are exempt from federal anti-trust laws, and most state insurance departments have little or no control over insurance rates.

Perhaps the most telling fact is how influential these insurers are in Washington D.C. and every state capitol due to the army of well-paid lobbyists and political contributions. They use the threat of their capability of inflicting major damage to a state’s economy so they routinely get what they want legislatively. Rarely do their demands on lawmakers get challenged.

One example happened in West Virginia when all five medical malpractice insurance companies threatened to pull out of the state unless regulatory laws were repealed. The West Virginia legislature promptly caved to the political pressure and repealed the legislation which they had enacted to protect W.V. consumers. As Joanne Doroshow of the Center for Justice & Democracy recently lamented, “Doctors complain of price-gouging by their medical malpractice insurers but do not join with consumer groups to push for industry regulation.” Apparently the medical profession would rather blame the legal profession and support “tort reform” instead. They ignore the insurance industry’s own admission about the lack of savings from “tort reform”. The vice president of the American Insurance Association admitted: “The insurance industry never promised that tort reform would achieve specific premium savings.” Despite that we are constantly inundated with “tort reform” rhetoric from lawmakers and their industry backers instead of taking on the insurance companies directly.

All of us- doctors tired of high medical malpractice premiums, business owners sick of paying exorbitant property-casualty insurance premiums, homeowners who face annually increasing rates despite never having made a claim- should target the real culprit in this ever-growing problem: the insurance industry. We should urge our national lawmakers to revoke their anti-trust exemption and face competition like every other industry. We should pressure our state legislators to enact common sense regulations and actually enforce them. No one expects the insurance industry not to make a profit. What we should not expect is for that profit to be on the backs of the consumers who only want and deserve affordable insurance.

What’s even more frightening is that earlier studies and calls by physicians themselves for improvement in patient safety and a nationwide system to track hospital errors, have apparently gone unheeded. Hospitals have been slow to institute changes and the health care lobby has fought tooth and toenail against a national registry for medical errors.

Part of the problem is the veil of secrecy that surrounds the medical community. Currently only 20 states require some level of reporting of hospital-acquired infections or medical errors.

There are lots of horror stories out there: a 20 year old loses his legs following routine gallbladder surgery after surgeons nicked a large artery, doctors perform a cervical diskectomy instead of the needed lumbar surgery, a 44 year old man dies of cardiac arrest after going to the ER complaining of groin swelling and is operated on for a non-existent hernia by a physician’s assistant without consulting a surgeon…and the list goes on and on. But who is listening to these tragic stories?

Most changes in the laws have only come about by patients becoming activists after enduring a preventable medical error. Several states recently enacted medical error reporting after pressure from activists like Michelle Hereford whose husband died of sepsis which went undiagnosed. With public reporting, patients and regulators are beginning to prod health care providers to adopt procedures to ensure preventable medical mistakes never happen. Reporting is the first step, adopting preventative measures is more important. Even some insurers are putting pressure by refusing to pay hospitals for their medical mistakes. A study in Maryland alone showed insurers paid over $522 million in one year for preventable complications during hospital stays. Hitting the providers in the pocket book may be the most effective way of improving performance.

The patient safety movement is growing but is far from being implemented nationwide. 30 more states must address this problem with legislation and regulations for reporting or there will be more tragic stories of innocent victims of medical malpractice.

The last thing a sick patient wants to hear is that they have contracted an additional disease while in the hospital for medical treatment. Medical malpractice claims arising out of un-hygenic practices by health care professionals while caring for patients can be greatly reduced if hospitals adopt strict policies on disease prevention including basic common sense hygiene…and most importantly, demand strict adherence to those policies by their staffs.

Under the Bush administration there has been a steady erosion of an injured person’s right to recover damages for his injuries. The heavily-financed lobbyists for the insurance industry, big corporations and pharmaceutical manufacturers took full advantage of the Republican control of the White House and Congress. Even though the voters have replaced Republicans in the Senate, House and White House with Democrats, the GOP continues to oppose legislation the majority of Americans need and want for the sake of their political contributors.

Just last week House GOP Leader John Boehner claimed over $100 billion a year could be saved by less defensive medicine being practiced if real medical malpractice reforms were passed. The CBO’s analysis proves his claims are nowhere close to being accurate but that hasn’t stopped him from continuing to say it. In an October 9 letter to Republican Senator Orrin Hatch, CBO Director Douglas Elmendorf said the savings in the total national health care spending if limits on malpractice were enacted would amount to less than 0.5%. Even after the CBO report was released, Senator Jon Kyl (R-AZ) continued the misinformation blitz on the Sunday talk shows. “Almost everybody agrees that we can save between $100 and $200 billion if we have effective medical malpractice reform,” he said.

Why should we continue to accept limitations on our rights just to protect the bottom line of wealthy corporations, insurance companies and manufacturers? We’ve given up too much already. The numbers don’t add up for the advocates of more tort reform so let’s make sure our legislators are hearing us and not just the loud, shrill and well-funded voices of those in the minority.

The state caps have been enacted at the urging of the medical profession and insurance industry through their heavily-financed tort reform initiatives. The cap amounts vary from state to state, in large part due to the varied strength of the medical and insurance lobby in each state. Louisiana has medical malpractice limits of $500,000. Maryland limits recovery in general medical liability cases at $650,000 and wrongful death claims to $812,500. Georgia’s statute caps medical damages at $350,000. Illinois caps damages at $500,000. The question of constitutionality deals with whether the caps so infringe on a judge or jury’s power to determine appropriate damage awards that it violates the patient’s equal protection rights, especially for the severely injured.

As we nationally debate the rising cost of health care and how to increase access to health care to the millions of uninsured, we must be mindful of not doing so on the backs of the average citizen who already faces inadequate access to damage recovery by these state liability caps. We should strike a balance and begin making the health care providers and medical insurers do their share of reining in the soaring costs of health care and medical insurance as well, not just by slamming the door of the courthouse to innocent victims of medical malpractice.

Reasons given for the profitability were stability of hospital professional liability environment, $million+ claims decreasing and frequency of claims non-increasing. What does that mean in plain talk? That medical malpractice insurers are raking in record profits on the backs of injured patients whose recovery rights have been limited by tort reform and med mal caps across the country.

Medical mistakes are still one of the major causes of injury in America but most states have succumbed to political pressure and enacted laws to shield or limit health care providers from liability. It appears that all of this tort reform legislation has benefited the insurance companies’ bottom lines.

Tough luck for the unsuspecting patient who sustains injuries as a result of one of the top four hospital-acquired conditions: pressure sores, falls, objects left in the body during surgery and infection following surgery.

Some are more strict than others. The Texas Supreme Court is about to decide whether two cases involving surgical sponges found after nine and eleven years are time barred under the state’s two-year medical malpractice statute of limitations and its statute of repose forbidding any suit after 10 years. The plaintiffs in both cases are challenging the constitutionality of Texas’ rigid statutes as a denial of the right to have access to the courts or open courts provision. Thirty-three other states also have statutes of repose spanning from three to ten years. Thirteen of those states carve out an exception for surgical items left in the body. Texas does not.

The restrictive statute of limitations was passed at the urging of hospitals, doctors and insurers to supposedly lower malpractice insurance rates and attract more doctors to the state. Attorneys for the hospitals say the legislature acted to address a “crisis” in the health care and insurance industries. During argument before the Texas Supreme Court, the hospital’s lawyer urged the court to take this opportunity to not only dismiss these particular cases but to establish an absolute ban on all medical malpractice suits regardless of whether the injured plaintiff could have discovered the injury before the two-year period!

A ruling is not expected on the cases until next year. Until then, anyone going under the knife in Texas may want to take a family friend along in surgery to count those surgical sponges for themselves and not rely on the doctors and nurses.

They also argue that high medical malpractice awards drive up the cost of medical malpractice insurance making it unaffordable. However, the nonpartisan Congressional Budget Office did a study of states with their own laws controlling medical malpractice lawsuits and found that last year the savings achieved by limiting medical liability amounted to less than 0.5 percent. It found no proof that limits on medical liability has reduced “defensive medicine”. They found no reduction in expensive and unnecessary test and procedures ordered by doctors to reduce the risk of lawsuits.

Louisiana is one such state that limits medical liability. A qualified health care provider is limited to $100,000 of exposure in a medical malpractice case. The victim of medical negligence is capped at $500,000 plus medical bills in what he can recover no matter what his or her actual losses are. The health care provider is responsible for the first $100,000 and the remaining $400,000 is paid by the Patient Compensation Fund. Capping and eliminating patient’s rights to recover is not the answer. Contact your congressman today and demand they vote NO on medical liability caps.

Top Democratic lawmakers have filed legislation to repeal that exemption and subject those insurers to laws that forbid price fixing, bid rigging and dividing markets between themselves. Republicans have promised, as expected, to fight the legislation tooth and toenail. Industry analysts predict an ugly and uphill battle to repeal the exemption.

Democrats cite the alarming steady rise in costs of health insurance premiums as the reason for the proposed repeal. Patients and doctors are paying the price while insurers continue to prosper. A recent Kaiser Family Foundation report released last week found that U.S. workers who get health insurance through their employers have seen their premiums more than double in the last decade.

When will the politicians stop protecting the insurance industry and pass legislation that will help the people they represent? The well-funded insurance lobbyists are busy as we speak maneuvering behind the scenes to protect their corporate clients, so the consequences of never-ending and skyrocketing health care costs continue to fall squarely on the backs of working Americans.