Otto von Bismarck is credited with the saying, “Law and sausage are two things you do not want to see being made.” This might be unfair to current artisanal dry-cured meat producers, but it is still quite the case with Congress. Last month, without a word of debate, Congress tucked into the Bipartisan Budget Act of 2013 a change in Medicaid subrogation law that will deny millions of injured victims their fair compensation and will make it harder for defendants and insurers to settle cases. It’s a de facto tax on any Medicare/Medicaid recipient who brings a tort lawsuit, which is quite a surprise given that, at the time, it was said the Act “includes no new taxes, and does not make any changes to entitlement programs.”

Some background is in order. For years, the companies that profit most from needlessly endangering consumers have tried to create the impression of a “jackpot justice” system,   in which trial lawyers file claims regardless of the defendant’s responsibility or the plaintiff’s damages, and are awarded large sums of money at random, which they pocket.

It’s a lurid image, one that lines up with the interests of the U.S. Chamber of Commerce’s membership, but it’s never been remotely true. The vast majority of injury litigation is routine and not genuinely open to much criticism: a defendant did something we all agree is unreasonable and unsafe (like running a stoplight) and hurt a plaintiff, the plaintiff received medical treatment and spent some time off from work, and now the plaintiff is bringing the claim to deal with those expenses and the lost wages.

Most injury lawsuits shouldn’t be that much work, but because of insurance companies’ “three D” strategy — delay, deny, defend — the cases end up being a lot of work. It can easily take more than 100 hours of attorney time to prove a simple red light car accident case with typical economic damages, like medical expenses.

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