So Much for Tort Reform

sharks.gifAs we dig deeper into the behemoth House health care bill, the blatant honesty of Howard Dean shines through the extensive document. You may recall when the former DNC chair said, “the reason why tort reform is not in the bill is because the people who wrote it did not want to take on the trial lawyers in addition to everybody else they were taking on, and that is the plain and simple truth.” Plain and simple indeed, Doctor, and Pelosi’s masterpiece of legislation has delivered on Dean’s promise.

I first saw this item noted by Jennifer Rubin and she quickly sent me scrambling to dig back into the bill. You see, the bill includes one section with the hopeful sounding title, “Medical Liability Alternatives.” (This is section 2531, found on pages 1431 through 1433 of the bill. For the record, if you follow that link you’ll have access to the entire bill, courtesy of the NY Times, in an easily browsed format for those of you who do not wish to download the entire thing in a pdf file.)

From the title and the initial description, you might be tempted to think that the bill was going to address tort reform, at least on some level, by offering an incentive to states who set up alternate methods of handling malpractice litigation.

(1) IN GENERAL. – To the extent and in the amounts made available in advance in appropriations Acts, the Secretary shall make an incentive payment, in an amount determined by the Secretary, to each State that has an alternative medical liability law in compliance with this section.

Sounds good, right? Except, in order for any state to be eligible for the payment, their new law must, as noted, be in compliance with the statute in question. And how does the state make sure their law complies? We find the key portion of that in item 4.

(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.

Did you catch that part? So the federal government will be offering incentive payments to states who engage in tort reform, providing they don’t actually… you know, reform anything to do with the real problem.

I’d like to feign shock over this, but I suppose it was predictable. Howard Dean laid out the ground rules for this game early on and the bill’s authors are following the playbook line for line. Not only will there be no meaningful tort reform, but the bill will provide economic incentives to make sure that no states attempt it.

A pretty sweet deal for the trial lawyers, and it once again demonstrates that their large, collective payments to the Democratic Party were a worthwhile investment.

UPDATE: T-Steel asks a great question in the comments. What if your state already has laws on the books attempting tort reform by limiting payments and fees in these cases? That’s covered in the bill as well. You flat out do not qualify for the federal payments.

(2) DETERMINATION BY SECRETARY – The Secretary shall determine that a State has an alternative medical liability law in compliance with this section if the Secretary is satisfied that -

(A) the State enacted the law after the date of the enactment of this Act and is implementing the law;

So, as you can see, if you already put something on the books to try to deal with it, you are immediately ineligible for the federal payments as long as it remains on the books.

24 Comments

  1. This one just ticks me off, frankly. When Obama spoke to Congress on Health Care Reform, tort reform was one of the tantalizing potential carrots he offered. Admittedly, he was very vague in that speech, but he did address it. I thought (hoped) that tort reform was one of the areas where he was signalling a willingness to meet the Republicans partway, on an aspect of reform that they see as important.

    Pathetic. I'm hugely disappointed.

  2. A pretty sweet deal for the trial lawyers, and it once again demonstrates that their large, collective payments to the Democratic Party were a worthwhile investment.

    True, and that's where Dean's argument is really a false one. This isn't an unwillingness to take on the trial lawyers, this is paying them back for their donations.

    Not only does the bill not encourage tort reform, it actually tries to limit it. The bonuses are only paid if the litigation alternatives are certificate of merit or early offer, the conclusion being that other forms of tort reform will not be rewarded even if they do not involve caps or fee limits. I would guess this would include arbitration and special medical courts?

  3. My question is this: how will this effect states with tort reform laws already on the books?

    Trial lawyers, especially personal injury ones, are damn good at keeping the public cool on this issue. Because if you are hurt in an accident and suffer financial and quality of life loss, they press all the right buttons to get on-board with “getting all you can get”. Whether conservative, liberal, moderate, slantways, or crookedways.

  4. Actually, T-Steel, the bill's author's covered your question specifically in item (2) A of this section of the legislation:

    (2) DETERMINATION BY SECRETARY – The Secretary shall determine that a State has an alternative medical liability law in compliance with this section if the Secretary is satisfied that –

    (A) the State enacted the law after the date of the enactment of this Act and is implementing the law;

    So, as you can see, if you already put something on the books to try to deal with it, you are immediately ineligible for the federal payments as long as it remains on the books.

  5. I am a physician and this makes me so mad I can not stand it. This is insulting. Not a single one of my colleagues agrees with this madness. Make no mistake, we will be heard at the polling booth.

  6. You're misreading. A state can have caps on damages for its regular legal process, but if it also establishes a health court arbitration system envisioned by the bill, then it can't have caps on damages for that arbitration system.

    So the states can keep whatever they've got on their books, they just can't apply it to the new health courts.

  7. It won't have any effect. What it will do is provide an arbitration alternative to regular court, and in that system (a) there won't be caps on damages; and (b) a counsel of doctors will have to certify that the suit is legitimate.

    So more suits may be funneled into that arbitration process, but the existing legal system – w/ trials, caps, et& – will remain unchanged.

  8. The alternatives aren't limited to merit or early offer. Provided the alternative has either of those and doesn't cap damages, the design is at the discretion of the state. They can make it an arbitration system, special medical courts, whatever.

  9. jpe1 beat me to it. Not one of the upset conservatives here actually understood what they were reading. The entire section was about alternatives to the standard system of going to the courts. In other words, the so-called reform laws that you are defending have nothing to do with this section of the law. Did you really not recognize that? Any of you? Especially Jazz.

  10. At least jpe1 made an attempt to be reasonable about this, while arguing a different point than is under discussion in this post, but Jim's response is really amazing. I'm guessing you actually already understand this but are pretending you aren't, so let's try again for the truly reading impaired, since I already ran this by a lawyer.

    What the legislation in question is obviously addressing is states' potential efforts to reform medical liability litigation. This *could* come in the form of an alternative system of “health courts” as you say, or it *could* be an entirely new body of law applying only to suits in the “regular” court system which pertain to medical malpractice litigation, etc. In either event, the legislation is not prohibiting states from doing this, and NOWHERE in this post did I so much as suggest that it did. What it does is prevent the states from receiving the additional federal funds (an attractive option) should they put in such a system of courts or new laws and those systems put any sort of cap on legal fees or settlement amounts.

    Man, the lengths some of you will go to in attempting to defend this boondoggle at every turn are really astounding.

  11. ” tort reform was one of the tantalizing potential carrots he offered”

    Who believed it?

    Obama said Medicare and other entitlement (Social Security) reform was overdue, and vowed to make the needed reforms, but (especially when the Dems are stampeding to expand entitlements while contining to oppose any and all reforms), who believed it?

    * * *

    “Man, the lengths some of you will go to in attempting to defend this boondoggle at every turn are really astounding.”

    That's an understatement — be it lengths or depths. [scowl] No surprise, though. Big bell curve, low tail.

  12. Nobody here has noted aloud yet that 2009-10 DemoCare “tort reform” is likely to be no different than under HillaryCare, which would restrict lawyers' portions of any awards to 33 1/3 per cent, nominally.

    [sigh]

  13. The only kind of reform we'll see is “relative,” in later years when other Dem interests get as much or more greedy as well as desperate. It's something that's already been dithered with, but merely superficially.

    The sleazier Dem crowd's show will start getting really good (like imprisoned gang members who eventually turn on each other after preying on everybody else) when desperate or greedy Dims in governments start moving in earnest to start taxing punitive damages.

    Heh, heh

  14. On a lighter note, the “tort reform” is like the football Lucy used to tee up for Charlie Brown. Wham, on his back, once again.

  15. Maybe the Republicans could have actually fought FOR this particular issue AND argue against other portions of the bill in good faith. That was not the case as we ended up with ridiculous claims of granny being euthanized and “get your gummint hands off my Medicare” from the tea party crowds and their toadies in the House and Senate.

    The GOP spent almost no time debating any of this bill or offering anything of substance. If they really wanted tort reform they would have fought for it. They didn't. Too bad.

  16. What else would one expect from a Congress in the United Suits of America? Trial attorneys and unwarranted litigation are destroying the fabric of this nation.

  17. Actually, Jazz, the foaming at the mouth hatred that Republicans and you have for actually reforming anything is what really knows no bounds. Have the “conservatives” ever proposed any real reforms to the system? No. Simply capping awards is not reform. Their proposals for what they consider reform of the rest of the system are designed to have loopholes so big that the Oasis of the Seas could sail through with a blind man at the helm. They would in do nothing to improve things in the real world. Only in the Republican fantasy land of what America is like.

  18. Jim….

    You really are the most partisan person I read on here. “Hatred that republicans have for actually reforming anything?” Come on, bro!

    Since this is the Moderate Voice, don't you think a moderate approach is warranted?
    Regulate the crap out of every industry that has a hand in health care – and that includes Tort Reform and the blood-sucking Trial Lawyers.

    Healthcare COULD have been reformed in that manner. Instead, both Democrats and Repbulicans fought for their respective corporate interests that continue to line their pockets with cash. If you think for one second this has something to do with providing the poor with health benefits, go follow the money, become a bit less naive, and then come back and praise your party.

  19. Regulate the crap out of every industry that has a hand in health care – and that includes Tort Reform and the blood-sucking Trial Lawyers.

    Healthcare COULD have been reformed in that manner. Instead, both Democrats and Repbulicans fought for their respective corporate interests that continue to line their pockets with cash.

    AMEN JeffersonDavis. A-to the-Frickin'-MEN! Both parties are filled to the brim with corporate interests. Jazz makes some good points. But ultimately, until we can really limit corporate influence in Congress, we are going to be stuck on slow motion for awhile.

  20. Regulate the crap out of every industry that has a hand in health care – and that includes Tort Reform and the blood-sucking Trial Lawyers.

    Healthcare COULD have been reformed in that manner. Instead, both Democrats and Repbulicans fought for their respective corporate interests that continue to line their pockets with cash.

    AMEN JeffersonDavis. A-to the-Frickin'-MEN! Both parties are filled to the brim with corporate interests. Jazz makes some good points. But ultimately, until we can really limit corporate influence in Congress, we are going to be stuck on slow motion for awhile.

  21. Regulate the crap out of every industry that has a hand in health care – and that includes Tort Reform and the blood-sucking Trial Lawyers.

    Healthcare COULD have been reformed in that manner. Instead, both Democrats and Repbulicans fought for their respective corporate interests that continue to line their pockets with cash.

    AMEN JeffersonDavis. A-to the-Frickin'-MEN! Both parties are filled to the brim with corporate interests. Jazz makes some good points. But ultimately, until we can really limit corporate influence in Congress, we are going to be stuck on slow motion for awhile.

  22. Thanks, T.

    I find it extremely frustrating to see that people still wear their horse-blinders thinking that their beloved party is so much better than that “evil” party over there on the other side. I firmly believe that 70% of people in America are clammering for another party. I know I'm sick and tired of choosing from the lesser of two evils.

    The time is ripe for a third/fouth/fith/sixth party out there. The only way to do it is to totally get rid of the primary system IMHO. What do you think?

  23. Do you really think that the current crop of Republicans would support those regulations, JD? Seriously? There are certainly some Democrats who join in on this foolish belief that corporations can be trusted to not repeat their previous mistakes or even create new stupidities such as computer programs based on mathematical models that have as their base unwarranted assumptions about home values and mortgages.

    As far as tort reform, conservatives limit themselves (So far as I know.) to the idea of limiting awards. That's not enough. We need an entire new structure when it comes to anything that has to do with technical and scientific issues, including medicine. Techies want to tear their hair out sometimes because of software patents and patent trolls. No more jurisdiction shopping. No more competing paid experts. A pool of experts in various fields that are treated like someone drawn for jury selection. Then a second panel of “technical judges” would review the decision to see if they catch something that the first crew didn't. Don't limit awards since you've already taken major steps to eliminate the worst abuses of the current system. There needs to be a real threat of meaningful penalties in this field to avoid “cost benefit analyses” that lead to rationalizations of unacceptable risk. Purely partisan? I judge the Republican Party as I see the people with power in it act.

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