Setting the Hell Hole Table

President Bush is scheduled to visit (registration required) the nation’s leading “judicial hell hole” on Wednesday to promote his agenda on litigation reform.

That would be Madison County, in southern Illinois, which recently was proclaimed the worst “judicial hell hole” for the second year by the American Tort Reform Association, a coalition of businesses, corporations, local governments and others who back the president’s efforts to end what it describes as “lawsuit abuse.” (If Madison County and its legal affairs sound familiar, here’s why.) Nearby St. Clair County, Ill., won the group’s second-place prize. The counties are home to judges and juries that are consistently pro-plaintiff, according to the association.

As Mark Silva of the Chicago Tribune writes:

Bush and an alliance of business leaders and Republican lawmakers maintain that the soaring cost of liability insurance is forcing physicians — especially those in such high-risk work as delivering babies — to abandon their practices.

They also contend that the cost of frivolous lawsuits prevents companies from hiring more people and launching ventures.

In short, they say, the cost of battle in America’s courtrooms is a damper on the economy.

The president has promised to make reforms to the legal system a “high priority” in his second term, aided by a larger Republican majority in Congress. By way of contrast, opponents of so-called tort reform, including many consumer organizations and trial lawyers, claim it is “simply a bailout for the business community,” writes Silva.

The groups call the notion of a litigation crisis illusory, and argue that insurance companies boost their premiums not because of damage awards, but to make up for profits they are not making in the stock market.

Both sides have plenty of ammunition to throw at each other in this debate: Doctors driven from their practices by high insurance, and victims of a medical malpractice barred from seeking fair damage awards. And it’s certain the American public will hear plenty of worst-case scenarios from both sides before Congress takes up the matter.

But what’s been missing so far from journalists covering the tussle is some voice — and some legwork. Not the standard “he said/she said” format, but some digging, some enterprise, and a willingness by reporters to sift through the spin and provide — yes — real information.

Georgina Gustin and Philip Dine of the St. Louis Post-Dispatch took a first step toward that end over the weekend, concluding that judicial hell holes aren’t created solely by greedy trial lawyers. After all, it’s insurance companies and regulators who set insurance rates, not trial lawyers. And, as it happens:

Illinois, according to consumer groups, has the most lenient insurance regulations in the country — and that, they say, is one reason the cost of malpractice insurance for Illinois doctors has shot up. Indeed, some critics say, Illinois’ system has become the model for congressional efforts to loosen regulations on the insurance industry nationwide.

Post-Dispatch readers deserved to hear more from Gustin and Dine on this subject — independent reporting which would either document or cast doubt on the claims of the consumer advocates, and provide other essential details on insurance regulation in the state in advance of Bush’s appearance.

They do offer a few numbers. For example, proponents of tort reform, among them the president, argue that caps on jury awards for pain and suffering will reduce the number of lawsuits and thereby lower doctors’ insurance premiums. Yet, write Gustin and Dine, statistics don’t bear that out. Missouri’s malpractice rates went up after the state in 1986 imposed a cap of $500,000 on non-economic awards, they report. The same thing happened in California; there, only when voters passed tougher regulations on insurers did premiums decline.

For any reform to work, insurance companies must be drawn into the debate, along with the medical and legal professions, says U.S. Rep. Jerry Costello, an Illinois Democrat, who told Gustine and Dine: “I’m hoping when the president comes to Collinsville [in Madison County], he addresses the entire issue. I believe there is no one simple solution to this complicated matter.”

That doesn’t seem likely. Admission to Bush’s event in Madison County is by invitation only. The guest list of about 1,000 is heavily weighted toward business leaders and doctors. Traditionally, both those groups have reserved their wrath for trial lawyers, not for insurers. The White House also seems ready to target the legal profession as the root of the problem. So it will be up to reporters covering the event to make sure that the insurance industry’s role in the whole issue is not ignored.

Susan Q. Stranahan

Note: The above has been updated to provide a link to an earlier report on the same topic.

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Susan Q. Stranahan wrote for CJR.