Tort reform? Try tort expansion

Barack Obama offered this wan “olich branch” to Republicans during his health-care overhaul speech to the joint session of Congress on Wednesday. After spending most of the speech deriding his opposition, Obama finally got to the subject of tort reform, which the White House had promised Obama would pursue in his speech to get Republicans on board. Here is how enthusiastic Obama was for the idea:


Finally, many in this chamber – particularly on the Republican side of the aisle – have long insisted that reforming our medical malpractice laws can help bring down the cost of healthcare. I don’t believe malpractice reform is a silver bullet, but I have talked to enough doctors to know that defensive medicine may be contributing to unnecessary costs.

So I am proposing that we move forward on a range of ideas about how to put patient safety first and let doctors focus on practicing medicine. I know that the Bush administration considered authorizing demonstration projects in individual states to test these issues. It’s a good idea, and I am directing my Secretary of Health and Human Services to move forward on this initiative today.

First, there are already plenty of studies showing that malpractice abuse comprises anywhere between 2% and 10% of all medical costs today. For a $2 trillion a year industry, even the low end would mean $40 billion a year in cost savings, and $400 billion over the ten-year period that Obama uses as his scale. That’s five times what Obama got the pharmaceuticals to concede in order to bring ObamaCare’s costs down, in comparison. The question here should be why the pharmaceuticals had to knuckle under to the White House while the trial lawyers get off scot-free.

As Kimberly Strassel notes in the Wall Street Journal today, the answer is — because Congress wants to make it even easier for lawyers to exploit malpractice claims, and in new and dangerous ways:


During the markup of a bill in the Senate Health Committee, Republicans offered 11 tort amendments that varied in degree from mere pilot projects to measures to ensure more rural obstetricians. On a party line vote, Democrats killed every one. Rhode Island senator and lawyer Sheldon Whitehouse went so far as to speechify on the virtues of his tort friends. He did not, of course, mention the nearly $900,000 they have given him since 2005, including campaign contributions from national tort powerhouses like Baron & Budd and Motley Rice.

Even Senate Finance Chair Max Baucus, of bipartisan bent, has bowed to legal powers. The past two years, Mr. Baucus has teamed up with Wyoming Republican Mike Enzi to offer legislation for modest health-care tort reform in states. That Enzi-Baucus proposal had been part of the bipartisan health-care talks. When Mr. Baucus released his draft health legislation this weekend, he’d stripped out his own legal reforms. The Montanan is already in the doghouse with party liberals, and decided not to further irk leadership’s Dick Durbin ($3.6 million in lawyer contributions), the Senate’s patron saint of the trial bar.

Over in the House the discussion isn’t about tort reform, but about tort opportunities. During the House Ways & Means markup of a health bill, Texas Democrat Lloyd Doggett ($1.5 million from lawyers) introduced language to allow freelance lawyers to sue any outfit (say, McDonald’s) that might contribute to Medicare costs. Only after Blue Dogs freaked out did the idea get dropped, though the trial bar has standing orders that Democrats make another run at it in any House-Senate conference.

It says everything that Mr. Obama wouldn’t plump for reform as part of legislation. The president knows the Senate would never have passed it in any event. Yet even proposing it was too much for the White House’s legal lobby. Mr. Obama is instead directing his secretary of health and human services to move forward on test projects. That would be Kathleen Sebelius, who spent eight years as the head of the Kansas Trial Lawyers Association.


How likely will a positive report come from tort-reform pilot projects run by the former executive director of a state TLA? About as likely as getting Democrats to vote to impose them even if they do succeed. It’s not just because the trial lawyers provides tons of cash to Democrats, although that’s certainly true. Trial lawyers afflict the very entities that the liberal wing of the Democratic Party likes to demonize — the rich, corporations, the rich, doctors (remember Tonsil Vultures and Foot Rustlers?), the rich, etc. It’s an ideological as well as financial marriage.

Obama’s not involved in writing the legislation anyway. He’s made himself irrelevant enough that he can toss in a couple of lines about the subject without having it change the situation one iota. But even if was involved in it, Obama has been pretty clear about his opposition to tort reform — as he was just three months ago when he spoke to the AMA:

Now, I recognize that it will be hard to make some of these changes if doctors feel like they’re constantly looking over their shoulders for fear of lawsuits. I recognize that. (Applause.) Don’t get too excited yet. Now, I understand some doctors may feel the need to order more tests and treatments to avoid being legally vulnerable. That’s a real issue. (Applause.) Now, just hold on to your horses here, guys. (Laughter.) I want to be honest with you. I’m not advocating caps on malpractice awards — (boos from some in audience) — (laughter) — which I personally believe can be unfair to people who’ve been wrongfully harmed.


So what was his solution to high malpractice abuse costs? In effect, he said that doctors need more schooling:

But I do think we need to explore a range of ideas about how to put patient safety first; how to let doctors focus on practicing medicine; how to encourage broader use of evidence-based guidelines. I want to work with the AMA so we can scale back the excessive defensive medicine that reinforces our current system, and shift to a system where we are providing better care, simply — rather than simply more treatment.

If doctors just listened to those government panels on comparative effectiveness that ObamaCare creates and stop putting patient safety somewhere south of “first,” they wouldn’t have anything to worry about! I’m surprised the AMA didn’t boo him off the stage for that remark.

Don’t expect tort reform from this administration. Tort expansion is much more likely.

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Salena Zito 12:00 AM | February 27, 2024