Dems: You can have tort reform …

posted at 9:40 am on October 31, 2009 by Ed Morrissey

Remember how concerned Democrats have been during the health-care system overhaul debate at eliminating unnecessary costs?  They had an opportunity to save $54 billion over the next ten years from the deficit by enacting tort-reform laws that removes the financial incentive from defensive medicine and protects providers through common-sense limitations on damages, such as those already in place in California and a handful of other states.  Jen Rubin at Commentary notices that Nancy Pelosi’s bill does actually allow for tort reform on pages 1431-1433 of the 1990-page behemoth, but only under a curious restriction:

Remember Obama’s effort to try a “test” for tort reform? (We don’t actually need a test, since it has worked to lower medical malpractice coverage and help increase access to doctors in states that have tried it.) Well, Pelosi’s bill has an anti-tort-reform measure. On pages 1431-1433 of the 1990 spellbinder, there is a financial incentive for states to try “alternative medical liability laws.” But look — you don’t get the incentive if you have a law that would “limit attorneys’ fees or impose caps on damages.”

Jazz Shaw has the explicit language found in Section 2531, emphasis his and mine:

(4) CONTENTS OF ALTERNATIVE MEDICAL LIABILITY LAW. – The contents of an alternative liability law are in accordance with this paragraph if -

(A) the litigation alternatives contined in the law consist of certificate of merit, early offer, or both; and

(B) the law does not limit attorneys’ fees or impose caps on damages.

Let’s by all means have the kind of tort “reform” that does nothing to limit damages or curtail attorneys’ fees.  What kind of “reform” would that entail?  Well, it basically means that the trial lawyers get to write the tort-”reform” laws … which means that we’ll be lucky to keep the status quo, let alone save $54 billion off of the deficit, according to the CBO.

No one should be the least bit surprised that the same Democratic Party that takes in over 80% of political donations from trial lawyers has attempted to kneecap tort-reform pilot programs in ObamaCare.  It’s about as surprising as Barack Obama putting Kathleen Sebelius in charge of these pilot programs in the first place — the same Kathleen Sebelius who represented trial lawyers in their lobbying group before becoming governor of Kansas.  Maybe they should just call themselves the Ambulance Chasers Party and be done with it.


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And, somewhere in the “bill”, it states they will withhold money from the states if they try to enact tort reform.

davidk on October 31, 2009 at 9:46 AM

What’s the difference between a dead skunk in the road and a dead lawyer in the road?

No skid marks in front of the lawyer.

SagebrushPuppet on October 31, 2009 at 9:48 AM

This is like sending a group of frat boys to a strip club and telling them they can’t look at the girls. What’s the freaking point?

milwife88 on October 31, 2009 at 9:50 AM

Any political party that would pick this fool as their leader will eventually implode and cover the streets with warm, putrid slime.

rplat on October 31, 2009 at 9:51 AM

Did you know that on page 941, point 1.A.c it talks about how the Cubs will be granted the World Series title every year despite their record? Yep, its there. I guess BO has a few more favors to repay back in chi-town.

jbh45 on October 31, 2009 at 9:51 AM

What do you call 100 dead lawyers?

A good start.

SagebrushPuppet on October 31, 2009 at 9:52 AM

The best way to handle this congress is rendition!

tim c on October 31, 2009 at 9:52 AM

Why have scientists started using lawyers in lab experiments?

Because there are some things even rats won’t do.

SagebrushPuppet on October 31, 2009 at 9:53 AM

That picture of Pelosi is perfect for this day.

Scary.

tatersalad on October 31, 2009 at 9:57 AM

I’m keeping my kids away from this witches house tonight!

Cybergeezer on October 31, 2009 at 9:58 AM

Communist democrat scum

darwin on October 31, 2009 at 9:58 AM

That picture of Pelosi is perfect for this day.

Scary.

tatersalad on October 31, 2009 at 9:57 AM

( : Nancy didn’t have to buy a mask, she’s wearing it.

yoda on October 31, 2009 at 9:59 AM

Where can I get a Pelosi mask? I want to see if I can scare the crap out of some of my neighbors! I hope I don’t get shot at!

Cybergeezer on October 31, 2009 at 10:01 AM

Comrade Pelosi

OmahaConservative on October 31, 2009 at 10:05 AM

Pathetic. Despite the well known fact that getting physicians together as one voice is like herding and collecting cats in a sack (forget the stupid AMA), physicians need to shout there will be an exodus from practice like you wouldn’t believe.

Lawsuit caps are written in the Texas State Constitution. States like ours and California (if you believe it, yes, California) may end up with a ratio of one physician for each 5 or 6 residents! Try to mess with the cap here – WAR baby.

Marcus on October 31, 2009 at 10:07 AM

My pitchfork sharpening business is booming.

darwin on October 31, 2009 at 10:07 AM

Actually, you can make it work with the Pelosi mask…..go trick or treating to the big, rich houses, take their candy, then give their candy to the smaller, poorer houses.

Redistribution of candy.

tatersalad on October 31, 2009 at 10:09 AM

I hope I don’t get shot at!

Cybergeezer on October 31, 2009 at 10:01 AM

Stakes are more likely.

TexasDan on October 31, 2009 at 10:09 AM

“No one should be the least bit surprised that the same Democratic Party that takes in over 80% of political donations from trial lawyers has attempted to kneecap tort-reform pilot programs in ObamaCare.”

Let’s go all the way here; MOST of the people who warm the seats in Congress are/were LAWYERS. They’re not going to impose ceilings on the amount of money they can get their clients….that would also limit the amount of money they get in the one-third “off the top” from those same awards!

It’s like term limits. And we’re not going to ever see that happen, either.

GoldenEagle4444 on October 31, 2009 at 10:11 AM

Dems: You can take your tort reform and…

mankai on October 31, 2009 at 10:11 AM

TexasDan on October 31, 2009 at 10:09 AM

Oh! What a nice campfire! FOR ME?

Cybergeezer on October 31, 2009 at 10:12 AM

Where can I get a Pelosi mask? I want to see if I can scare the crap out of some of my neighbors! I hope I don’t get shot at!

Cybergeezer on October 31, 2009 at 10:01 AM

Some of them will think you’ve arrived to bring them their free gasoline and mortgage payments.

“Treat, treat, treat!!!”

Then you can tell them they’ve been tricked… by Nancy herself.

mankai on October 31, 2009 at 10:13 AM

More lawyer jokes please. I need the laugh after learning more about this nightmare bill.

Monica on October 31, 2009 at 10:14 AM

Lawyers in Love

mankai on October 31, 2009 at 10:14 AM

“…………MOST of the people who warm the seats in Congress are/were LAWYERS. They’re not going to impose ceilings on the amount of money they can get their clients….”
GoldenEagle4444 on October 31, 2009 at 10:11 AM

Right on; Litigation thrives under Democrat majority; And you know how much we need more law suits!
The only problem is; The criminals in Congress get a free pass.

Cybergeezer on October 31, 2009 at 10:17 AM

(B) the law does not limit attorneys’ fees or impose caps on damages.

Then what exactly gets reformed?

conservnut on October 31, 2009 at 10:18 AM

Oh! I know one!
You know why lawyers are immune to shark attacks? No; Sharks think they’re whale turds.

Cybergeezer on October 31, 2009 at 10:20 AM

More lawyer jokes please. I need the laugh after learning more about this nightmare bill.

Monica on October 31, 2009 at 10:14 AM

John Edwards goes into a bar with John Kerry… and gets nominated by the Democratic Party for Vice President of the United States.

mankai on October 31, 2009 at 10:22 AM

And, somewhere in the “bill”, it states they will withhold money from the states if they try to enact tort reform.

davidk on October 31, 2009 at 9:46 AM

So, states like Texas which have already successfully enacted tort reform…? Hmmmm, pretty populous state, lots of employers. Wonder how many of those new tax dollars will come from Texas to fund programs in lib states?

publiuspen on October 31, 2009 at 10:29 AM

More lawyer jokes please. I need the laugh after learning more about this nightmare bill.
Monica on October 31, 2009 at 10:14 AM

A white lawyer, a black lawyer and an asian lawyer walk into a bar, the bartender says “Get the he1l out!”

Bishop on October 31, 2009 at 10:29 AM

That small portion of the bill is poorly worded, but it is actually not a bad idea.

I have litigated medical malpractice cases here in Texas. And Texas has a very good tort reform model. It consists of two primary components:
1. Caps on non-economics damages (so-called “soft” damages that are unquantifiable like pain and suffering and mental anguish); and
2. Procedural requirements that place burdens on Plaintiffs to prove that their case has merit at the outset of litigation before a bunch of time and resources have been wasted with the suit.
This second prong has done a very good job of keeping frivolous lawsuits out the system. It ensures that the case is legit from the outset.

This national bill is apparently suggesting that states should try the second kind of reform but not limit damages.

And you know what? That is not a bad idea. From my experience, procedural requirements are very effective in eliminating the dreaded frivolous lawsuit. But if the case is not frivolous and has merit, why should the state tell juries what they can and cannot award? There are other limitations built in that prevent runaway juries besides caps. But if the case has complete merit and the injured party should be entitled to damages, I see no problem with allowing the jury to determine whatever is just. I believe in the trial by jury system.

So, as someone who has defended hospitals, doctors and malpractice insurance companies, I think this is not a bad idea.

txlitigator on October 31, 2009 at 10:29 AM

What’s the difference between an accident and a calamity?

It’s an accident when a bus full of lawyers plunges off the road into a river. It’s a calamity if they can swim.

Monica on October 31, 2009 at 10:36 AM

No offense to lawyers, but what do you expect when you have a government By Lawyers, For Lawyers, and Of Lawyers.

Techie on October 31, 2009 at 10:36 AM

What’s the difference between a lawyer and a bucket full of sh!t?

The bucket.

Monica on October 31, 2009 at 10:37 AM

A guy phones a law office and says: ‘I want to speak to my lawyer.’ The receptionist replies, ‘I’m sorry but he died last week.’

The next day he phones again and asks the same question. The receptionist replies, ‘I told you yesterday, he died last week.’

The next day the guy calls again and asks to speak to his lawyer. By this time the receptionist is getting a little annoyed and says, ‘I keep telling you that your lawyer died last week. Why do you keep calling?’

The guy says, ‘Because I just love hearing it.’

Monica on October 31, 2009 at 10:38 AM

“In my many years I have come to a conclusion that one useless man is a shame, two is a law firm, and three or more is a congress.” John Adams

publiuspen on October 31, 2009 at 10:39 AM

But if the case has complete merit and the injured party should be entitled to damages, I see no problem with allowing the jury to determine whatever is just. I believe in the trial by jury system.

So, as someone who has defended hospitals, doctors and malpractice insurance companies, I think this is not a bad idea.

txlitigator on October 31, 2009 at 10:29 AM

Pardon my ignorance, but currently in Texas with our “caps” is there NO limit on ‘economic’ damages but the limit is on the widely variable and sometimes outrageous ‘pain and suffering’ damages? You know, the dead baby that talks through John Edwards’ voice and had Obstetricians in South Carolina fleeing the state while juries wept.

Marcus on October 31, 2009 at 10:47 AM

… as long as it doesn’t actually reform tort awards.

I was so not surprised to read that last part of the headline.

4shoes on October 31, 2009 at 10:48 AM

Wonder how many of those new tax dollars will come from Texas to fund programs in lib states?

Before or after secession?

SDN on October 31, 2009 at 10:55 AM

Somebody please tell Nancy that it’s Halloween, not April Fools!

Cybergeezer on October 31, 2009 at 10:55 AM

HHHMMMM this may be silly but, if they can limit executive pay then they could limit tort caps & fees……oh wait that would just make too much damn sense!

xler8bmw on October 31, 2009 at 10:57 AM

Pardon my ignorance, but currently in Texas with our “caps” is there NO limit on ‘economic’ damages but the limit is on the widely variable and sometimes outrageous ‘pain and suffering’ damages?

Correct. “Economic damages” are calculable damages like your medical bills, lost income/earning capacity, or loss of household services. They are damages that can be proved with a definite number (“I incurred X in medical bills because of this, lost my income which was Y, and had to pay Z to have a maid come clean my place because I cannot do it anymore.”) Economic damages are not capped.

Non-economic damages are capped (in Texas in med mal, they are capped at $250k or $500k depending on certain circumstances). Those are damages for pain and suffering, mental anguish, or loss of consortium. (“I laid in the hospital in miserable pain for 3 weeks and can never have sex with my wife again.”)

But again, because of the other tort reform procedural changes, those caps are only applying to legitimate cases where a doctor did commit malpractice and people did suffer. Legit cases do exist.

There has been some discussion in Texas about raising the non-economic damages cap to $1m or more.

And here is a secret no one will ever tell you: the only thing that malpractice insurance providers need is a set number; it does not matter if it is 250k, 500k or 5m. Because they need certainty to build it into their risk pool models and price accordingly. With certainty comes a workable insurance system. The lack of predictability is what caused an insurance crisis in Texas that lead to tort reform.

txlitigator on October 31, 2009 at 11:00 AM

The “You Can’t Take it With You” news of the day – heard on the radio from Huckabee that notorious plaintiff’s attorney John O’Quinn of Houston, always first to any plane crash no matter what part of the world, and famous ambulance chaser, was killed on Thursday in his speeding SUV.

Marcus on October 31, 2009 at 11:01 AM

That picture of Pelosi reminds me of fishing, because the last time I saw a mouth that looked like that it had a hook in it.

perroviejo on October 31, 2009 at 11:02 AM

And I’ll shut up after this, but I wanted to add one other thing to consider: damage caps raise constitutional issues (takings clause, privileges and immunities, equal protection, due process concerns).

So when you are discussing making targeted caps applicable to just people who are injured in med mal cases, you have to be very careful on how you structure caps. Courts across the country have split on different cap issues and held some to be unconstitutional.

Just think about it. Say I get injured by some faulty product and I can recover my damages of X in that case in Texas. But if it happens to be a doctor error in wielding the product, now I can only recover 1/2 of damages of X. Or if I was in Alabama I could only recover 1/3 X. The treatment at law of different individuals with same injuries, where one can be made whole and another cannot based on judicially created distinctions, raises constitutional concerns. Courts have held that caps on noneconomic damages have a rational basis to address physician insurance crises but those cases have been close calls.

The expansive your damage caps become, the more likely you are to cause constitutional issues.

txlitigator on October 31, 2009 at 11:10 AM

To be fair, 90% of lawyers give the other 10% a bad name…..

There Goes The Neighborhood on October 31, 2009 at 11:15 AM

Texas and California wouldn’t be eligible for this incentive program, anyways. The incentive only goes to states who have adopted laws after the date of the bealth care bill.

Jimbo3 on October 31, 2009 at 11:19 AM

I said it before and I’ll say it again: Republican hands are not clean on this issue, they had 8 years to pass some kind of tort reform and didn’t. Now all they can do is whine about Democrats not doing they job Republicans should have done when they were in power. This is a Washington problem, not a Democrat one.

Socratease on October 31, 2009 at 11:19 AM

DNC = The Wool Pulled Over Your Eyes Party.

Griz on October 31, 2009 at 11:25 AM

Seriously Ed, that picture freaks me the frak out.

But it is Halloween so I guess it works.

Yakko77 on October 31, 2009 at 11:27 AM

Ed, this line of attack has been amusing, because it uses all of the types of arguments that conservatives like to rail against.

1. This is a states issue, yet you are claiming that the federal government should be the one enacting reform. Some states have already started to enact reform, with success, and this is the way it should be. Blaming ObamaCare for *not* intervening enough is hilarious.

2. You want absolute caps on damages AND attorney pay, even though you rail against caps on executive pay. As Marcus and txlitigator have pointed out above, the key to successful reform is caps on pain and suffering damages, not overall caps. In fact, overall caps may have constitutional issues, and would certainly be silly regardless, because some medical mistakes are simply very expensive and some are not.

3. You say $54 billion to make it seem like a lot, but if you gave the number per year, or better yet, the percentage of health care costs that this would save, it would be almost negligible. That’s not to say that $5.4 billion per year is only negligible to the fatcats in Congress, it just means that when the health care industry is spending so much money, predictions about shaving %0.01 off the costs are unlikely to be very accurate, and efforts are better spent elsewhere. I am for tort reform, but I also recognize that it’s much less important to health care costs overall than other issues like simplifying the system so that overhead is drastically cut (administrative costs, most of that unnecessary, amount to about 10%).

tneloms on October 31, 2009 at 11:29 AM

Once/if OboobaCare/PelosiCare/ReidCare passes, and is the only game in town, tort reform would basically become illegal.

Akzed on October 31, 2009 at 11:15 AM

You must be a real conservative. Not getting a government handout for doing something is equivalent to that thing being illegal?

tneloms on October 31, 2009 at 11:31 AM

Just a question here … I’m not a lawyer and I didn’t stay in a Holiday Inn Express last night …

But, reading this provision – doesn’t it mean that states can impose “loser pays” type tort reforms as long as the end damages aren’t limited on successful cases?

Let’s be sure here – most of the current abuse comes in the settlement process – where insurance companies attempt to limit their losses and hassle by settling out of court. But if you to “loser pays” – then then the whole settlement process is de-incentivized and the game becomes high stakes in court with all costs going to the loser.

Can’t “loser pays” fit into Nancy Pelosi’s box here?

HondaV65 on October 31, 2009 at 11:32 AM

Socratease on October 31, 2009 at 11:19 AM

Excellent point. Bush campaigned on this issue in 2004, and I know many doctors who were otherwise against Bush, but certainly favored him on that issue. But absolutely nothing came of it, which was very disappointing.

tneloms on October 31, 2009 at 11:34 AM

Republican hands are not clean on this issue, they had 8 years to pass some kind of tort reform and didn’t. Now all they can do is whine about Democrats not doing they job Republicans should have done when they were in power. This is a Washington problem, not a Democrat one.Socratease on October 31, 2009 at 11:19 AM

Right on.

Pazman on October 31, 2009 at 12:15 PM

And this will also cost more for Doctors Mal-Practice Insurance which will drive the doctors cost up.

Only Pelozi could think of sucj a thing….APPALLED!

BigMike252 on October 31, 2009 at 12:16 PM

To which my answer would be, with Ace Rothstein in “Casino”, “You can either have the money and the hammer, or you can walk out of here. You can’t have both. What do you want?”

Rich Fader on October 31, 2009 at 12:30 PM

Ed, I have always loved that screencap of Nan. It captures that essence of “empty-headedness” only she can express.

Zorro on October 31, 2009 at 12:48 PM

With a picture like that, I’d say we need tart reform.

Dark-Star on October 31, 2009 at 1:07 PM

Having worked as a paralegal in plaintiff’s personal injury practice, I can affirm that the Democratic party is absolutely beholden to trial lawyers. They will not offer any serious tort reform or seek any solutions to the problems caused by trial lawyers. The solution will have to come from conservatives and independents who are not in the pocket of trial lawyers.

MeAlice on October 31, 2009 at 2:01 PM

Obama Plan Calls for Making Health Care System More Efficient by Having Trial Lawyers Provide Medical Services More Directly http://optoons.blogspot.com/2009/06/obama-plan-calls-for-making-health-care.html

Mervis Winter on October 31, 2009 at 2:19 PM

Section 2531, entitled “Medical Liability Alternatives,” establishes an incentive program for states to adopt and implement alternatives to medical liability litigation. [But]…… a state is not eligible for the incentive payments if that state puts a law on the books that limits attorneys’ fees or imposes caps on damages.

When will the people of this country wise up!

LennyV on October 31, 2009 at 2:20 PM

(A) the litigation alternatives contined in the law consist of certificate of merit, early offer, or both; and

Contined?

Must’ve been written by a bunch of bastino’s.

BobMbx on October 31, 2009 at 2:27 PM

You guys have it all a$$backwards. A good conservative should want to preserve the system as the founders intended — not just defund the left. That means tort damages determined by a jury, not set by some bureaucrat or arbitrarily capped by the defense lobby. What’s the point of avoiding socialized medicine, if you are going to socialize tort law.

The big cost is allegedly from the cost of defensive medicine (unnecessary tests), but a doctor will only be held liable if he deviates from “the standard of practice.” If the standard of practice dictates that a test be given, he needs to give it. If the standard of practice does not require that a test be given, then the doctor cannot be held liable. The problem is with the “standard of practice.” Not the lawyers or the patients or jury. Do the doctors expect too much from themselves. Perhaps. The problem is with doctors not adhering to the standard of practice. Either the doctors need to do better for their patients or loosen up and allow doctors to screw up more often. I vote for the status quo.

tommylotto on October 31, 2009 at 3:16 PM

Much more lucrative than ambulance chasing would be suing soft drink companies and winning a judgement to the tune of $1.2 BILLION

Jeff from WI on October 31, 2009 at 3:47 PM

Cybergeezer on October 31, 2009 at 10:20 AM

You know, one of the greatest ironies I’ve ever experienced was seeing a good church friend who aspired to be a lawyer and almost became one have to give up her dream…because of brain damage after a car accident.

Truth really is stranger than fiction.

Dark-Star on October 31, 2009 at 5:59 PM

And here is a secret no one will ever tell you: the only thing that malpractice insurance providers need is a set number; it does not matter if it is 250k, 500k or 5m. Because they need certainty to build it into their risk pool models and price accordingly. With certainty comes a workable insurance system.
txlitigator on October 31, 2009 at 11:00 AM

Here’s another secret: it matters to the policy holder. And I say that with some certainty.

Barnestormer on October 31, 2009 at 5:59 PM

YO! PEOPLE;

You know, one of the greatest ironies I’ve ever experienced was seeing a good church friend who aspired to be a lawyer and almost became one have to give up her dream…because of brain damage after a car accident.

Truth really is stranger than fiction.

Dark-Star on October 31, 2009 at 5:59 PM

FIFY, pal.

Cybergeezer on October 31, 2009 at 8:00 PM

Why the proponents of the 10th amendment and opponents of federalization via the interstate commerce clause would want the central government to take over all state common law is inexplicable or “a$$backwards.”

Ironically, the above provision of the health care bill seems to recognize what FEDERAL tort-reform fanatics consistently fail to recognize: the federal government has no constitutional authority to regulate and preempt state negligence law. If this congress thought it had the constitutional authority to directly outlaw these tort reforms, it would have simply done so. But even this congress felt it necessary to coerce the states in the same way it coerces them with federal highway funds. When congress can’t regulate directly, it regulates by legislative bribery and coercion, “unconstitutional conditions.”

If the feds have the authority to regulate state tort law, they have the authority to preempt existing state tort reforms whether those reforms are in statutes or the state’s CONSTITUTION. Those asking for FEDERAL tort reform desperately want to grant the central government a power it does not even claim to have.

Suppose congress does have that power and exercises it by revoking all state tort reforms. What is your complaint then? That they don’t have that authority under the constitution? You begged them to take it. Your only complaint can be that they didn’t exercise it the way you wanted. But they do that a lot.

The trial lawyer lobby will thank you if the feds took up that power. They would not have to scatter themselves and their plentiful resources among 50 state capitals with 50 state legislatures and 50 state governors. I’m sure they’d tell you: keep asking for federal tort reform.

casel21 on October 31, 2009 at 8:28 PM

What’s the difference between a lawyer and a catfish…?

One is a bottom-feeding scum sucker.

The other is a cute little fish with whiskers.

bigjack on November 1, 2009 at 5:42 PM