Refine the reforms.

Byline: The Register-Guard

President Bush has decided to spend a substantial amount of his political capital on an ambitious effort to reform the civil tort system. The unpredictable and horribly wasteful tort system is a worthy target, but the president needs to take better aim at some of its problems.

First things first: What is meant by the tort system? A basic presumption of U.S. civil law is that people are expected to conduct their personal or business matters in ways that do not injure others. Tort, derived from the Latin word tortus, means "a wrong." Tort refers to the body of law that allows an injured person, by suing for monetary damages in court, to obtain compensation from the person who caused the injury.

All well and good in theory. But in practice, the tort system functions more like a Las Vegas craps table than an orderly and evenhanded process for injured parties to receive just compensation. A minuscule number of claimants win Powerball-class judgments, while others with equally valid complaints get little or nothing. The value of damage awards has less to do with the actual merits of many cases than with the emotional bonds juries forge with sympathetic plaintiffs.

This unpredictability is made worse by structural inefficiencies in the tort system that routinely allow less than half of the staggering sums it generates to actually reach injured plaintiffs. What's staggering? Try $246 billion in 2003. What's inefficient? The Washington Post reported that in 2002, plaintiffs' lawyers pocketed 19 percent, defense lawyers took 14 percent and insurance and administrative costs sucked another 21 percent from the total, leaving just 46 cents of every dollar to the victims.

It's possible some component of Soviet bureaucracy approached the U.S. tort system's 54 percent administrative overhead, but that's probably an unfair criticism of the Russians. Other heavyweights of American overhead can't lay a glove on the tort system. The U.S. health insurance industry, for example, has administrative costs of 14 percent.

Bush has a three-pronged approach to tort reform: cap noneconomic damages in medical malpractice cases at $250,000, move most class-action lawsuits into federal courts and curb asbestos-related lawsuits.

The malpractice damage award cap, a top legislative priority of physicians and insurance companies, is the wrong solution to the malpractice insurance rate crisis for everyone but physicians and insurance companies. Relieving doctors of liability for grievous medical errors without broad agreement on mechanisms for disclosing and reducing errors and disciplining negligent doctors is all carrot and no stick.

Likewise, protecting insurance companies from unpredictable costs without addressing their role in rate setting does nothing to prevent rates from continuing to spiral upward, as they have in every state with damage award caps already in place.

Rather than fall back on one-sided solutions that reward traditional Republican special interests, President Bush should lead the nation toward more constructive reform: Raise the bar on the requirements for filing malpractice suits by requiring experts to review the facts before a case can proceed. Create uniform guidelines that help judges and juries across the country set consistent and reasonable compensation for similar injuries.

On class-action and asbestos lawsuit reform, the president is closer to the mark, but his preferred approaches again tilt dramatically in favor of big business. His proposal to move most class-action suits into federal court could help, but it has a glaring practical downside. The federal courts are already gridlocked in many jurisdictions, and important cases could wait years to move to the head of the docket, effectively denying justice to countless worthy plaintiffs. For this to be a real reform, it would have to contain the funding to provide new resources for the federal court system, as well as protect state jurisdiction in appropriate cases.

Without federal intervention, asbestos litigation could continue forever, driving companies into bankruptcy while still failing to help thousands of victims. The president's support for a national trust fund for victims - established by Congress and funded by industry - makes sense. Congress is currently holding hearings to decide the fund's size and the appropriate compensation for victims.

Bush deserves credit for taking on tort reform, but he's making a mistake when he offers simplistic solutions that unfairly favor businesses over individuals. The legal system is supposed to protect all Americans, regardless of party affiliation or income. Real reform would never lose sight of that goal.