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Greedy Trial Lawyers By: Henry Mark Holzer
FrontPageMagazine.com | Sunday, August 25, 2002

Some of the nation's most notorious personal injury lawyers are mounting an all-out assault on America's healthcare system that could batter it into a smoldering ruin before the next Presidential election. If successful, these unelected and unaccountable lawyers will raise healthcare costs to the point where millions of Americans and their employers may find themselves priced out of the system.

Fresh from the tobacco wars and currently representing only a handful of plaintiffs, the lawyers' are attempting to convince a Miami-based federal judge that they should be allowed to represent almost all of the nation's 600,000 physicians as well as 130-million health care consumers in a class-action lawsuit. Bear in mind, that only an infinitesimally small fraction of those millions actually have been informed of the lawyers' intentions, much less given their consent to be listed as plaintiffs.

Most legal experts believe the lawyers' goal of creating what may well be the largest class-action lawsuit in history is a real long shot. For that to happen, Judge Federico Moreno of the U.S. District Court for the Southern District of Florida would have to buy into the fiction that nearly all of the nation's physicians and nearly every insured American has suffered some similar harm as a result of commonly accepted managed care practices.

But stranger things have happened in U.S. courts in the recent past and — disturbingly — Moreno in late July agreed to allow the personal injury lawyers to pursue wide-ranging discovery against the nation's eight largest healthcare providers. Moreno's action gives the lawyers a super-fishing license to ransack the files of the Aetna, Humana, United Healthcare, WellPoint Health Networks, Cigna Corp., PacifiCare Health Systems, Coventry Health Care and Anthem Blue Cross Blue Shield.

In effect, Moreno is putting the cart before the horse by allowing the lawyers to massively disrupt day-to-day business at the healthcare providers before addressing the key question of whether their proposed class-action suit has any merit. This Alice in Wonderland approach to justice will cost the healthcare providers millions of dollars and almost surely force them to increase premiums. In the end, of course, consumers will pick up the tab. The personal injury lawyers stand to reap incredible sums in contingency fees, if they can persuade Moreno that healthcare providers can be sued under federal racketeering and state and federal conspiracy laws.

The lawyers are stretching judicial precedent involving those laws far past the breaking point by contending that the physicians are entitled to receive the millions of dollars managed care companies have "saved" consumers as the result of generally accepted practices to control skyrocketing medical costs. In the medical arena, where there are so many variables relating to the scope of an individual's insurance coverage as well as to the particular illness being treated, lumping all health care consumers into a single class defies common sense.

For example, healthy people, who only need routine medical services obviously don't fit in the same category as seriously ill patients undergoing complicated procedures like open-heart surgery or chemotherapy. Nor can the day-to-day experiences of doctors treating millions of patients with millions of different procedures be lumped into the convenient confines of a class-action lawsuit.

Indeed, the difficulty of calculating damages, if any, for the millions of class-action plaintiffs the lawyers want to include in their suit is mind-boggling. Most people, for example, do not pay for health care premiums out-of-pocket, but rely on employer plans or governmental programs such as Medicare. The lawyers would demand compensation for both patients and doctors based on how much they believe health plans have "saved" as a result of routine practices.

Yet employees with health plan coverage already have been paid because those savings allowed their employers to continue offering coverage without transferring part of the burden back to them or worse, eliminating the plan Similarly, the same savings have allowed Medicare coverage to continue without the additional tax increases that would have been necessary if soaring healthcare costs had not been contained.

Including the nation's doctors in the survey borders on the ludicrous and is nothing more than a retroactive attempt to rewrite contracts that doctors voluntarily had signed. Health plans, it should be noted, administer claims on behalf of employers on a pass-through basis and have little or no incentive to "underpay" doctors. In fact, Judge Moreno, while listening to lawyers complain about their physician clients' financial plight, wryly observed that he had "not noticed many physicians living in trailer parks."

He is right. A new survey by a Physicians Search, a firm that recruits doctors for various employers, found that first-year starting salaries averaged $125,000 for family doctors to $208,000 for heart surgeons. For doctors with three or more years of experience, average annual salaries increased to nearly $148,000 for family practitioners to more than $558,000 for heart surgeons.

If the personal injury lawyers manage to win this mother of all frivolous lawsuits, only the already well-heeled — they and their physician friends — will walk away with bulging pockets. America's patients will be the big losers, paying higher premiums for fewer and fewer services.

Congress must not stand by and let a handful of venal lawyers trump years of deliberation by federal and state legislators and experts on blue-ribbon panels. To do so, would be to roll back a decade of health care reform, and stymie further vitally needed reform efforts.

By passing a reasonable tort reform act, Congress can put the healthcare interests of America's patients before the political agenda and financial interests of personal injury lawyers.

Henry Mark Holzer, Professor Emeritus at Brooklyn Law School, is a constitutional lawyer and author most recently of The Supreme Court Opinions of Clarence Thomas, 1991-2006, A Conservative’s Perspective.

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