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Mayor Anthony A. Williams has a few things in common with President George W. Bush: an undergraduate degree from Yale University, a rhetorical passion for government reform, a love of baseball. “I like the president,” Williams confessed in an April 16 press conference. “I enjoy a good working relationship with him. Many of the things he’s doing, I support strongly.”
Indeed. Why should Williams shape his own policy agenda when he can carbon-copy one from the White House?
It all starts with the schools: D.C.’s Democratic mayor met recently with Education Secretary Rod Paige about implementing a $75 million experimental school-voucher program in the District. Even though 76 percent of D.C. voters reject vouchers as a fix for the city’s troubled public school system, according to a Zogby International poll, Williams appears to hail them as a panacea.
On the anti-terrorism front, the mayor has defended the deployment of Metropolitan Police Department officers to protect the federal coreeven as he and his police chief get pilloried for stiffing crime-ridden neighborhoods.
But you can’t be a pro-business Bush toady unless you embrace one of his dearest policies: tort reform. True to form, Williams is now pushing a bill that would limit juries’ ability to award compensation for medical malpractice. Modeled on legislation that has passed in the House of Representatives and has Bush’s full endorsement, the bill would impose a $250,000 ceiling on jury awards for noneconomic damageswhich most of us know as “pain and suffering”in malpractice cases.
The president should be proud of his mayor. In the mid-’90s, newly inaugurated Texas Gov. Bush declared a crisis in the state’s judicial system and pushed similar types of legislation. Political Svengali Karl Rove has taken credit for making tort reform a top Bush priority.
Bush, Williams, and other tort-reform proponents buy into the arguments framed by the American Medical Association, which says that runaway litigation and intemperate jury payouts have sent insurance premiums for doctors through the roof. “Because of excessive litigation, everybody pays more for health care, and many parts of America are losing fine doctors,” remarked Bush in his State of the Union address Jan. 28. “No one has ever been healed by a frivolous lawsuit.”
Williams’ rhetoric on the same topic just changes the words around. “Already, I have received anecdotal evidence of doctors retiring early or leaving the District due to the rise in malpractice premiums and other factors,” Williams wrote to K. Edward Shanbacker, executive director of the Medical Society of the District of Columbia, which represents local physicians.
Williams has detailed D.C. Insurance Commissioner Lawrence Mirel, among others, to craft the legislation. That news alone should please doctors and their insurers. “Entirely too much money goes to lawyers,” says Mirel, who says he’s using the federal legislation and the California law as models. “We’re just driving our physicians out.”
Mirel expects to deliver the Medical Injury Compensation Reform Act of 2003 to the council soon. “When did we start adopting a conservative Republican agenda in this city?” asks Ward 4 Councilmember Adrian M. Fenty, who opposes both vouchers and tort reform. “This is an issue [on which] Democrats have traditionally chosen to side with the victim.”
Shanbacker and his cohorts in the hospital industry see a different victim: D.C. doctors. An obstetrician’s practice in Friendship Heights, according to Shanbacker, pays about $108,000 a year for medical-malpractice insurance. If the practice moved right over the District line to Maryland, its premium would decrease by nearly $12,000. And if that same OB crossed the Potomac to Virginia, Shanbacker claims, the premium would be cut in half.
Shanbacker credits caps on pain-and-suffering awards for part of the disparity: Maryland limits pain-and-suffering damages at $620,000. In Virginia, the cap is $350,000 for pain and suffering and $1.65 million total. That creates an incentive for doctors to run for the border. “Unfortunately, the dismantling of the physician community in the District of Columbia happens drop by drop,” warns Shanbacker. “The shift is happening very slowly. Once doctors leave, they’re not going to come back.”
Hmmm. Shanbacker’s threatened “dismantling” might take a while. According to the American Medical Association, D.C. has the highest number of physicians per capita in the country: There are 723 doctors for each 100,000 residents. (The association compares D.C. with states, not with other cities.)
Local patient-rights advocates claim that the mayor has misdiagnosed the problem. There’s little evidence to suggest that high insurance premiums are the result of an overly litigious jurisdiction: According to a recent analysis by Public Citizen, the number of malpractice suits in D.C. courts has declined over the last decade. In 1992, there were 209 medical malpractice lawsuits; in 2002, there were 158.
Should we chalk that up to the doctor drain? Apparently not: The report cites an uptick in the number of D.C. docs. In 1985, the District hosted 3,759 doctors. In 2001, that number was 4,133. And, according to Public Citizen, malpractice insurance premiums in the District on average have been on the decline. “After accounting for inflation, the percentage change from 1992 ($45.3 million) to 2001 ($30.9 million) represents a 31.8 percent decrease,” reads the report.
“If you put your right foot in boiling water and your left foot in freezing water, on average you’ll feel comfortable,” responds Shanbacker. “That’s the way they’ve manipulated these averages.”
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Tort-reform onslaughts pour into the Wilson Building at least once a decade. And each time, virtuoso trial lawyer Jack H. Olender scrubs up. LL and others in the local press corps face a conundrum characterizing Olender: If you write anything praiseworthy, your hackneyed prose appears in Olender’s ads for years:
He’s the “king of the medical malpractice bar.”the Washington Post
“Top Gun when something goes wrong in the hospital.”the Washingtonian
“The famous American lawyer…”Pravda
When it comes to tort reform, he’s “Jack the Ripper.”damn, the Washingtonian again.
The great self-promoter spots a White House-Wilson Building conspiracy. “Bush is a driving force behind this,” says Olender. “The amazing thing is that a Democratic mayor wants to proceed with such foolishnessif, in fact, he does want to proceed.” But Olender hasn’t canceled any court appearancesor media interviewsto walk the Wilson-building hallways. He’s quite confident that tort reform will go nowhere this council session. He’s self-assured for some pretty sound reasons:
•The trial lawyers’ lobbyist fighting tort reform is Jim Nathanson, a lawyer and former Ward 3 Councilmember who has many friends on the D.C. Council.
•Among those friends are the council’s seven lawyers, including trial attorneys such as At-Large Councilmember Harold Brazil, who specializes in personal-injury cases.
•And at last year’s 17th annual Olender Foundation awards, D.C. Council Chairman Linda W. Cropp delivered the keynote address for the Generous Heart 2003 award.
“There are not sufficient votes on the Judiciary Committee or on the council for tort reform,” says Ward 2 Councilmember Jack Evans, a lawyer who sits on the committee.
On many ideological bellwether issuessuch as taxes and social servicesthe once-liberal council has gone right-wing. Yet on tort reform, it still behaves like a gaggle of Ted Kennedys. “These outrageous jury awards for noneconomic damages can only happen in this jurisdiction, because of the unwillingness of the city council thus far to introduce or even consider legislation limiting [them],” argues Robert Malson, president of the D.C.
So why pursue such an uphill battle?
According to Olender and health-care advocates, the mayor promised to push for tort reform in exchange for the hospital association’s help after the closing of D.C. General Hospital. When the public hospital closed, many of the city’s indigent patients landed on the doorsteps of Howard University Hospital, Providence Hospital, and Washington Hospital Center, among others. “It was stated as a hypothetical,” says Olender, who says he heard about this horse-trading in a recent meeting chaired by Williams Deputy Chief of Staff Gregory McCarthy. “This was the one thing the hospital people wanted from the mayor in return for working out these problems with the medical-care system.”
“That was never in any of the discussions I was in,” responds Shanbacker. “That was never raised. I never heard that.”
Mayor Williams says the push for reform is fueled by the tsunami of insurance premiums, not political brown-nosing or favors: “When it comes to tort liability, our providers here are at a disadvantage.”
THE AFFLUENT SOCIETY
In a Ward 4 community meeting on the budget, Mayor Williams did his best John Kenneth Galbraith and reviewed some basic principles of economics with constituents. Williams talked about the textbook jargon for a drop in demand stemming from escalating prices. “That’s called ‘very elastic,’” he lectured the crowd.
Then he brought up demand for downtown parking.
That’s inelastic, according to the mayor.
In other words, a perfect source of revenue for a cash-strapped city. And many of the parkers are suburban commuters, to boot.
In his fiscal year 2004 budget proposal forwarded to the council, Williams asked for a 6 percent increase in the parking tax as well as a supposedly temporary, two-year surcharge on residents earning more than $100,000 a year to balance his $3.8 billion local budget. The former city bean-counter said he had scrubbed the books and had found no other cuts to pay for his 5.5 percent budget increase.
Councilmembers, however, can also be inelastic. Their demand for Williams-bashing stays high without regard to the leading economic indicators. On Tuesday, Ward 2’s Evans, Ward 3’s Kathy Patterson, and At-Large Councilmember David A. Catania countered the executive-branch proposal with a proposed $36 million in cuts to avert the mayor’s tax increases.
The austerity team advocates reducing budget bloat to 4 percent. The proposed cuts include $6 million from the Metropolitan Police Department and $4 million in unallocated cuts from the Department of Human Services, as well as $6 million from the Department of Health, $2.5 million from Child and Family Services, and $2 million from Mental Health. Meanwhile, the budget cutters would restore money for such sentimental favorites as libraries and the Interim Disability Assistance Program.
Mayoral spokesperson Tony Bullock insists that councilmembers don’t care about the entire city. “They want to spend all their money on their own pet projectsand don’t want to be accused of raising taxes,” he argues.
• At his Wednesday press conference, Mayor Williams remained mum on whether he’ll support Democratic State Committee Chair Norman C. Neverson, who’s now fighting to retain his position.
Calls for Neverson’s resignation arose from comments he made in a Washington City Paper cover story (“Vox Populi,” 4/11), where Neverson mentioned that he might have supported the “three-fifths compromise,” in which the authors of the Constitution agreed to count a slave as 60 percent of a person for political apportionment and taxation purposes.
“I found his statement very, very troublesome,” remarked Williams. Without the mayor’s backing, Neverson might have a tough time fending off opponents. He needed the mayor to rally the party faithful last June, when he won re-election by three votes.
On Monday night, Neverson told LL he had no plans to resign. “Those who are asking for Norm Neverson’s ouster have read what they want to read out of contextbut they have a different agenda,” he said. CP
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