Dan Walters: Tort war general cashiered

By Dan Walters – Bee Columnist

The Capitol’s “tort war” began in 1975 when doctors, hospitals and other purveyors of medical care pressured the Legislature and then-Gov. Jerry Brown into placing a cap on “pain and suffering” compensation in medical malpractice lawsuits. They cited a steep increase in malpractice insurance premiums.

The medicos blitzed the Capitol. Physicians’ wives staged a sleep-in in the governor’s office foyer to impose the $250,000 compensation limit, which resulted in a sharp drop in malpractice insurance premiums. The cap became a model for similar efforts in other states.

It was a huge wake-up call for what was then called the California Trial Lawyers Association. And it was the beginning of decades of almost constant political warfare over who can sue whom and over what, pitting attorneys against business and professional groups and the insurance industry.

Stripped to the conflict’s essentials, lawyers, who work on contingency fees, try to expand opportunities to sue and collect. Those on the other side try to narrow the grounds for suits and monetary damages.

The tort war has been fought in the Capitol, in the media, on the ballot and in the courts. The financial stakes are incalculably enormous, literally tens of billions of dollars. The money the rivals spend, while tiny in comparison to the stakes, is huge in political terms.

Lawyers, insurers and dozens of business and professional groups annually commit millions of dollars to campaign contributions, lobbying fees, public relations campaigns, underwriting front groups and other political munitions. But in the 32 years since it began, the net result has been a virtual stalemate.

In 1987, with business groups pushing the notion of applying the malpractice caps to all forms of personal injury cases, extensive private negotiations among mercenaries for the warring factions produced what became known as the “napkin deal.” The truce was worked out among lobbyists and key legislators, notably the speaker of the Assembly, Willie Brown, in Frank Fat’s restaurant, then quickly written into law by the Legislature. It gave all of the players a little of what they had been seeking.

Despite the truce, some of those interests became expensively involved a year later in a confusing array of ballot measures dealing with insurance. Insurers, trial lawyers and their allies spent upward of $100 million, a huge amount for the time, on persuading or confusing voters. The result was a victory of sorts for the lawyers and their very close allies in the consumer advocacy groups. But its effects, in the long run, were fairly minimal.

After the napkin deal truce expired, the trial lawyers — who renamed themselves the Consumer Attorneys of California — resumed their efforts to expand tort law. They sought to roll back the medical malpractice damages cap, but to no avail.

Although lawyer-friendly Democrats have controlled the Legislature, the lawyers have been almost totally frustrated. They achieved one minor breakthrough in the late 1990s on suing insurance companies for “bad faith” handling of claims, only to see it overturned by an insurer-backed referendum. Their foes scored a win at the polls a couple of years ago with passage of a measure making it more difficult to sue for “unfair business practices.”

After losing on medical malpractice in 1975, the lawyers hired Don Green as their chief contract lobbyist. He has been the field general of their side in the tort war ever since. The lawyers fired Green recently, however, in an implicit acknowledgment of their frustrating series of stalemates and setbacks.

To Capitol insiders, it was the end of an era. But the tort war will continue simply because there’s so much money at stake.

Editor’s Note: This article originally appeared sacbee.com. It has been moved or deleted, but we will archive it here so others will be able to locate it.

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