Tuesday, October 12, 2004

Malpractice fight focuses on court vote


Election of justices gives
voters a say on reforms

By Tim Bonfield
Enquirer staff writer

THE SERIES

Day 3
Fight focuses on court vote
Day 2

Doctors pay more
All sides offer reform ideas
Day 1

Region gains doctors
Rising rates: Consumers pay

Why do doctors in Ohio care so much about Judith Lanzinger, and why should you?

Political groups representing doctors, hospitals and business interests are paying serious attention to a race involving candidates most voters have never heard of:

The race for the Ohio Supreme Court.

Lanzinger is one of seven people running for four seats on the seven-member court. Nov. 2 will be one of the few times a majority of seats will be elected at the same time.

To health-care interests in Ohio, no race is more important.

"The medical liability insurance crisis in Ohio does not discriminate ... it jeopardizes care for all Ohioans," according to campaign statements from the Ohio Hospital Association. "In many cases, the vote of one justice determines whether a law stands or falls. Ohioans elect their Supreme Court candidates, and through their votes have the power to directly impact key health-care issues."

Whether or not people recognize the names of candidates, the malpractice issue does affect almost everybody.

Rising malpractice coverage premiums and doctors who practice defensive medicine already contribute to the rising costs of medical care in Ohio and nationwide, a trend that is biting into the paychecks of millions. Health-care groups also say rising malpractice costs eventually could reduce doctor supply, which in turn could harm the quality of care.

However, public records show that the number of doctors practicing in Ohio has been growing for years. And other groups, especially trial lawyers, unions and some consumer groups, say a person's ability to seek relief from the court system could be undermined by efforts to tilt the Supreme Court.

"From the patient's point of view, caps on damages are incredibly unfair and harmful to people who are harmed through medical malpractice," said Pamela Gilbert, spokeswoman for the New York-based Center for Justice and Democracy, which has opposed malpractice reform proposals at the federal level.

"Pain-and-suffering damages are meant to compensate for the intangible but very real harm suffered from the permanent loss of a limb, of vision, of disfigurement or pain," Gilbert said. "What a cap on these damages does is say that no matter what happens to you, your pain is never worth more than $350,000."

Gilbert contends that voters should be extremely cautious of any candidate - be they legislators or judges - who supports malpractice damage caps.

Candidates can't say

But in what may be the most frustrating aspect of the malpractice debate, the Supreme Court candidates cannot tell you exactly where they stand.

Ethics rules preclude judges from openly discussing their views on matters expected to come before them - and there is no question that malpractice cases will eventually come to them. So this year's judicial races boil down to an exercise in tea-leaf reading.

Voters are expected to glean how a judge might stand on a topic by making assumptions based on a judge's political party, the interest groups endorsing them, and whatever the candidates may say about their judicial philosophy.

In September, several Supreme Court candidates gathered in Cincinnati for a lunchtime forum sponsored by the Greater Cincinnati Chamber of Commerce.

But the candidates discussed little more than their past legal experience. They took no questions from the audience.

Adding to the strangeness, many of the groups most interested in influencing the Supreme Court election are nonprofit organizations that also are precluded from openly endorsing candidates.

This is why the Ohio Hospital Association and the Ohio State Medical Association can only urge voters to "educate themselves" about the race.

Party matters

Dr. Esly Caldwell, an internal medicine specialist and a past president of the Academy of Medicine of Cincinnati, says he isn't a charity. So he can say which candidates doctors really support.

And, he says, doctors support the Republicans.

On the other side, several large unions and the Ohio Academy of Trial Lawyers - which has long opposed efforts to cap malpractice awards - have thrown their endorsements to the Democrats.

To some, the state Supreme Court is a last line of defense against a Legislature that they see as overwhelmed by business-dominated special interests.

Beyond the medical malpractice issue, they fear that a court favored by big health care and business groups will support other controversial legislative decisions on education reform, labor laws, environmental laws and social issues.

"Most people don't have any perception of what's being driven through that Legislature," said Frederick Gittes, president of the Ohio Academy of Trial Lawyers.

Regardless of party, Supreme Court candidates lament what they see as a lack of attention from the general public.

"What is done at the Supreme Court level is going to affect (Ohio residents') daily lives, their businesses and their livelihoods," Lanzinger said. "There are differences between the candidates."

Beyond tort reform, justices will be deciding important cases affecting public education, utility regulation, taxes, and workers compensation, incumbent Republican Justice TerrenceO'Donnell says.

"It only takes four votes for a decision that binds 65 appellate judges, 330 common pleas judges and 340 municipal and county judges," O'Donnell said. "That's why it is so important to select a justice that has the integrity, character, background and experience to discharge the duties of this office."

Ohio has developed a reputation for heavy spending and over-the-top Supreme Court campaign ads.

The 2002 election attracted more than $13 million in spending for just two seats - the highest per-judge spending in the nation. The 2004 election is expected to generate at least as much spending, estimates the Ohio State Bar Association.

While the general public may not be paying much attention to the court races, Democratic candidate Nancy Fuerst notes that special interest groups are. She and others have called for more open disclosure of spending by groups interested in judicial elections and for public campaign funding.

"We are on nobody's radar as political candidates," she said. "Yet, the nastiness of some of the ads has been demeaning to the dignity of the court."

Enquirer reporter Jim Siegel contributed. E-mail tbonfield@enquirer.com.

Candidates for Ohio Supreme Court

Seven people are running for four seats in the November election. Here are snapshots of the candidates.

MOYER VS. CONNALLY

Chief Justice Thomas Moyer

Experience: Has served as chief justice since 1986. Was admitted to the bar in 1964.

Party affiliation: Republican.

Endorsements: Ohio State Medical Association PAC, Right to Life PAC, Ohio Hospital Association PAC, Fraternal Order of Police, Ohio Chamber of Commerce, Ohio Association of Professional Firefighters, Ohio Society of CPAs. "Highly recommended" rating by the Ohio State Bar Association.

Quote: "An important attribute of a judicial candidate is respect for the law as an institution."

Ellen Connally

Experience: Cleveland Municipal Court judge from 1980 to 2003. Admitted to bar in 1971.

Party affiliation: Democrat.

Endorsements: Ohio Academy of Trial Lawyers, Ohio AFL-CIO, Teachers for Better Schools, Cleveland Stonewall Democrats. "Adequate" rating by Ohio State Bar Association.

Quote: "It is time for the voters of Ohio to hire a new chief justice."

O'DONNELL VS. O'NEILL

Justice Terrence O'Donnell

Experience: Has served on the Supreme Court for nearly two years after serving 22 years as a common pleas judge and on the Ohio court of Appeals. Admitted to the bar in 1971.

Party affiliation: Republican.

Endorsements: Ohio Chamber of Commerce, Ohio Right to Life PAC, Family Medicine PAC, Ohio Hospital Association, Ohio Society of CPAs. "Highly recommended" rating by the Ohio State Bar Association.

Quote: "I pledge to faithfully and impartially serve with the highest degree of integrity and to instill public confidence in the decisions of our court."

William O'Neill

Experience: Judge for the 11th District Court of Appeals. Admitted to the bar in 1980.

Party affiliation: Democrat.

Endorsements: Ohio Education Association, Ohio Academy of Trial Lawyers. National Association of Social Workers Ohio Chapter, Gov. Howard Dean and Democracy for America. "Recommended" rating from the Ohio State Bar Association.

Quote: "Money and judges don't mix. Never have and never will."

FUERST VS. LANZINGER

Nancy Fuerst

Experience: Cuyahoga County Common Pleas judge since 1997. Admitted to bar in 1988.

Party affiliation: Democrat.

Endorsements: Ohio Academy of Trial Lawyers, Ohio Federation of Teachers, Ohio Civil Service Employees Association, National Association of Social Workers, AFL-CIO. "Adequate" rating by the Ohio State Bar Association.

Quote: "Ohioans want and expect a fair shake from all levels of government, including the judiciary."

Judy Lanzinger

Experience: 18 years as a judge in Lucas County and most recently on the Sixth District Court of Appeals. Admitted to bar in 1978.

Party affiliation: Republican.

Endorsements: Fraternal Order of Police, Ohio Chamber of Commerce, Friends of Ohio Hospitals, Ohio Real Estate Investors Association and Ohio State Medical Association. "Highly recommended" rating by the Ohio State Bar Association.

Quote: "The power of the judiciary must be confined to interpreting the law, not writing it."

PFEIFER (UNOPPOSED)

Justice Paul Pfeifer

Experience: Serving second term as a justice of the Ohio Supreme Court. Admitted to the bar in 1967.

Party affiliation: Republican.

Endorsements: Fraternal Order of Police of Ohio. (Pfeifer has not been endorsed by several groups that have endorsed other Republican candidates, including the Ohio Chamber of Commerce PAC and the Ohio Hospital Association PAC.)

Quote: "I have always tried to approach every case on an individual basis. I am not beholden to an ideology that forces me to bend the outcome of a case to fit my preconceived notions."

Tim Bonfield




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