As in many other states and even the halls of Congress, there’s a subject that’s all the rage amongst today’s West Virginia political set: something called "tort reform," particularly as it applies to the medical industry. You see, our doctors might have to quit practicing, hospitals will close and people lie dead in the streets for want of medical attention if we don’t stop those dishonest, money-grubbing, blood-sucking lawyers who’re out to get us. We must be afraid, very afraid, same as with Osama; only – the government can protect us from these fearsome monsters.

Now, before you start nodding in U.S.-government-approved, all-American agreement like some bobble-head doll perched on the dash of a ’73 Pinto with bad shocks, stop and think. The government itself – the people who are telling you this – is made up, by and large, of blood-sucking lawyers. They’re the ones making laws in the legislative branch, and interpreting them in the judicial. Not little bloodsuckers like the local mouthpiece that squeezes a million dollar settlement out of some quack for taking the wrong leg off Aunt Mary; such ones are just mosquitoes. Those in government and lobbying groups are the corporate lawyers: full-fledged vampires who go right for the economic jugular. They are the ones who spend millions to get a hundred grand a year job. That alone should tell you something, and make you at least just a teensy bit skeptical.

Contrary to what government shills would have you believe, there are three parties with vested interests in tort reform, but only two of which actually want to see it passed. One party is you, Joe Citizen; the other two are the medical and insurance industries. Guess where you fit in?

In case you don’t know, tort reform is a move to limit the amount of awards juries can make for punitive damages. In other words, it takes still more power away from the people, and tells us flatly that we can’t be trusted. The usual figure floated here in the Mountain State is a cap of $250,000 dollars. Sounds like a lot of punishment just because someone made a "mistake," doesn’t it? At least until it’s you or one of your children they made that mistake upon.

Okay, let’s be realistic; say some joker with an MD after his name messes up and amputates one of my legs. I’m 46 and disabled, so my dancing days are pretty well done for anyway; maybe that’s a fair price. But, what if he meant to take off the other one? It still has to come off, and instead of limping on a peg like Long John Silver, now I get to scoot around on my butt. Sorry Doctor Kildare, but the price just went up.

What if it’s a five-year-old kid when the doc gets coked up and takes off the wrong leg of a child whose whole life lay ahead? In addition to being depriving of childhood, if the rate of inflation continues, by the time this victim becomes an adult and the condition starts affecting job-wise, that $250 thousand won’t buy very much.

What if your child just became a virtual vegetable because some jerk didn’t follow procedure, and spends half a century lying in bed having diapers changed? I’ve got news for you: that quarter million is just pocket change when it comes to paying for long term care, and not nearly enough to pay for the pain and emotional suffering or to keep the father from making a personal call on the quack responsible that will make the CNN Headline News.

Just how common are these medical "errors," anyway? According to national academies, depending on which study you want to believe, doctors and nurses killed as many as 98,000 people in 1999; more than died in car wrecks and a far greater number than by firearms (we started a war against Afghanistan because Osama allegedly killed 3% of that toll). This is just counting those known to have actually died from malpractice, omitting the cover-ups.

If you’re thinking by now that I have it in for doctors, such is not the case. There are some very good ones out there, and the majority are at least acceptable (a study by Public Citizen of New York doctors finds that 82% have never made a malpractice payment). And yet a substantial minority, through negligence, substance abuse (far more than you might suppose; remember, doctors, lawyers, corporate executives and politicians remain exempt where many jobs these days require urine on a regular basis for drug testing) or just plain incompetence are unfit to practice medicine on a house cat, let alone any human (the same study showed 7% of doctors responsible for a whopping 68% – more than two-thirds – of all malpractice payouts; and the worst 1% managed to make 22% of the "mistakes"). The reason they are allowed to continue to do so is because of how the system works.

Doctors are a lot like cops; they have a code of silence when it comes to their own, particularly those in the same hospital. The hospitals have a similar code, although for a different reason than the physicians’ "professional courtesy." It would damage customer confidence to admit having hired a congenital idiot doctor, so administrators prefer simply recommending and sending him elsewhere. As for medical licensing boards: well, doctors generally run them. So, unless he’s tried an appendectomy with a chainsaw, the odds are he’ll be licensed until he dies. The aforementioned Public Citizen study found only 28% of doctors with ten or more malpractice payouts had ever been disciplined for their actions. As for the good doctors, they must share both the reputations and insurance rates of the bad ones, all because of an extraordinarily influential interest: the insurance industry.

Much of the insurance business, and malpractice coverage in particular, can be summed up in one word: scam. It’s been my experience you can trust Louie the loan shark farther than your average insurance company. You pay premiums for years, but when it’s time to collect, oft as not it’s a tossup whether or not you get your dues. If so fortunate, you’ll jump through myriad hoops in the process, while the company finagles to avoid paying anything at all. Why must this be tolerated? Because the insurance industry has one of the most powerful lobbying groups in the country, and money to buy judges and politicians. If you ever face this reality in court, you’ll find out about high-powered lawyers. An insurer who can’t settle the claim for just a fraction of what it’s worth will often prefer to battle it out in court, spending far more than the original claim asked, to prevent a precedent from being set and discouraging future suits.

This story of the physicians, insurance companies and their pocketful of politicians has it that the poor doctors can’t operate without malpractice insurance; they’ll have to leave the state or maybe stop practicing medicine entirely because they can’t afford the insurance rates here on their six-figure salaries. And the poor, multi-billion dollar insurance companies can’t possibly drop their rates because of these "outrageous" settlements being squeezed out of them by "runaway" juries. This, according to the line we’re being fed, is the fault of those "blood-sucking lawyers" (a blood-sucking lawyer, by the way, is always defined as the one representing the other guy) who latch onto any lawsuit coming their way and squeeze out their percentage in the event of victory. There are, however, a few things they’re not telling you that commonly fall under the heading of truth.

First of all, most doctors who depart for distant places aren’t doing so because of high insurance rates, since most other states likewise don’t put caps on punitive damages. They wander off searching for better weather, a "faster" lifestyle than is offered by a predominately rural state; or, more likely, it’s simply economics, since many of the people in West Virginia are so poor they can’t pay their bills, which leaves the doctors and hospitals collecting only such pittances as Medicare and Medicaid cough up. As for doctors giving up practicing medicine en masse, that’s a fairy tale on par with the one about Iraq’s weapons of mass destruction. None of these conditions are new; normal people do not invest immense amounts of time and money in eight years of college and medical school to make top-end incomes, then suddenly decide they’ll give it up and go work down at the local poultry packers.

Secondly, no matter how good a doctor is or how few complaints he’s had lodged against him, his malpractice insurer is almost certainly soaking him for far more than the actual risk of litigation that his personal doctoring involves. The insurers point to highly publicized cases of massive jury awards and cry that they’d like to cut their rates, but they just can’t take the chance.

What about those multi-million dollar awards? Well, to begin with, there’s a very good reason you hear about them. They are prominently in the news and subject to much discussion anytime one takes place. Contrary to what the government, medical associations and insurance companies would have you believe, however, they don’t happen very often! If a jury awards one million dollars for a lost fingernail, that’s news because it’s a novelty rare as an honest politician or a virginal Hollywood starlet. Such settlements aren’t common. What is common, is that the injured party collects only a tiny part of what they’ve asked for and simple justice demands.

All this brings us to the trial lawyers who get blamed for the whole mess hung ’round their necks like an albatross. In this instance I’m talking only about those awful "blood-suckers" representing the injured plaintiffs of course. Those in it on behalf of the giant insurance conglomerates are American heroes trying valiantly to hold anarchy at bay, keeping it from the throat of the American dream. Just ask them.

You see, lawyers representing ordinary people get a percentage of their take. While the neo-cons gasp and point, beating their breast amid howls of "See! See!" they prefer that you not think about one very simple, very plain fact: poor people usually cannot afford to hire a lawyer any other way.

In any society, the poor and middle class (an increasingly indistinguishable definition here in the Mountain State) will always form the majority; there’s always a need for more Indians than chiefs. So it is no stretch of logic to see that, as everyone uses the services of physicians, by their very numbers those with little disposable income will be the plaintiffs in the majority of malpractice cases since more of them require doctors. Going into court against such a powerful interest as the insurance industry without a lawyer is not an option. That’s like charging Hell with a bucket of water; an impressive display of courage, to be sure, but unfortunately the same thing cannot be said of either its common sense or effectiveness. So an injured party who is unable to pay a lawyer out of pocket must agree to divvy up the winnings – if there are any, which is a long way from certain.

Many of the legislators at this point are accusing the trial lawyers of greed and of exploiting the poor, which is often not the case at all. Lawyers, same as the rest of us, like to get paid; and, since they’ve put no less time and expense into their educations as the doctors, it can hardly be considered unreasonable that they wish to be paid well, too. In taking cases on a contingency basis, as is common with most of his poor clients, the lawyer enters into a gamble. He only gets paid if he wins. If not, all that otherwise potentially profitable time and expense preparing the case is wasted. It boils down to the fact that, if lawyers can’t expect at least some chance of collecting a reasonable fee, they’re not taking the case; which leaves that would-be client without a lawyer or means of suing for damages.

Since the majority of people are not going to have enough cash to hire a lawyer out-of-pocket, the result will be that most indicated cases for lawsuits against the insurance companies will never take place; which is, after all, the whole point of tort reform: to protect insurance companies from having to actually recompense the very damages they are so well paid to be covering.

Also, please note that there is nothing in any tort reform legislation I’ve ever seen requiring malpractice insurers to adjust their rates downward in accordance with the lowered maximum amounts they would then be paying out. If you, dear reader, believe they will make any real, substantial adjustments out of the goodness of their hearts, call me; I have a used car I’d like to sell you. In other words, it’s a scam. Our juries (that’s us, folks) – and the type of lawyer we can afford – are not the ones out of control. It’s the insurance, medical and political industries, and their professional corporate mouthpieces, that are running rampant.

The reason so many people don’t see what’s going on is that they simply can’t understand how insurance works. These insurance companies are generally heavily invested in the stock market. When they take a loss there, or are hit by something that actually makes them cough up a large sum – such as a hurricane, an earthquake, 9-11, etc. – they tend to make that money up on the backs of others insured in the form of increased rates. And it’s not just so they won’t be forced out of business; rather this is to maintain big profit margins that allow investors and the high company muckety-mucks to continue living in the style to which they’ve grown accustomed.

Some of you, I’m sure, are still sitting there stubbornly with your arms folded, muttering about the injustice of a doctor or his insurer having even the slightest risk of being socked with an astronomical punitive damage award resulting from a moment’s carelessness. The answer can be summed up in one word: deterrence. The purpose of punitive damages is to punish someone for a wrong action – not out of revenge, but to warn that individual not to do it again; and, by his example, caution others never to make the same mistake. It’s just like your parents taking a switch to you when you were a kid: if laid on with a will, it was at least a day or two before you grew inclined to commit that offending behavior again. Likewise, haven’t you noticed that when one child gets an attitude adjustment via the seat of the pants, other children in the immediate vicinity instinctively straighten up for a while, too? The same principle will work to put the quietus on this insurance racket, and it’s well past time some of those involved in this consumer rip-off got taken to the woodshed.