Tort Reform Gets Short Shrift on Campaign Trail
By Mark Crane, Contributing Writer, MedPage Today
Physicians who anticipate tort reform to decrease malpractice insurance premiums after the White House changes hands in November may well be disappointed.
Democrats Barack Obama and Hillary Clinton are no fans of caps on awards for pain and suffering, the measure most favored by the American Medical Association. Neither is John Edwards, who earned millions as a medical malpractice plaintiff attorney.
The leading Republican presidential candidates all bemoan the nation’s litigious climate. Most have supported tort reform measures, but they differ on the details.
Even if a Republican wins the presidency, however, tort reform is still a long shot. President Bush couldn’t get his plan passed through a Republican Congress. If Democrats retain control, major tort reform will face an uphill fight.
The presidential field has narrowed as Democrat Sens. Joe Biden and Chris Dodd dropped out after the Iowa caucus. Republican Tom Tancredo also abandoned his bid. Here is a rundown on how the remaining candidates stand on tort reform:
For all their bickering about universal coverage, frontrunners Hillary Clinton and Barack Obama see practically eye to eye about medical malpractice and patient safety. Obama has been more critical of trial lawyers, however. While campaigning for the Senate in Illinois four years ago, he said, “Anyone who denies there’s a crisis with medical malpractice is probably a trial lawyer.”
Before they officially became presidential candidates, the Illinois and New York senators co-authored an article in the May 25, 2006 issue of the New England Journal of Medicine, entitled “Making Patient Safety the Centerpiece of Medical Liability Reform.” (See: http://content.nejm.org/cgi/content/full/354/21/2205)
They sympathized with physicians over escalating insurance costs and condemned the current tort system for creating an “intimidating liability environment.” Still, Clinton and Obama said, it’s more important to focus on how to improve patient safety than “areas of intense disagreement,” such as caps on financial awards to patients.
They introduced legislation, which died in committee in 2006, to provide money and assistance to physicians, hospitals, insurers, and health care systems to start programs for disclosure of medical errors and compensation to patients. The bill would have created an office of patient safety and health care quality to establish a database to track incidents of malpractice and fund research into guidelines to prevent future injuries.
“Physicians would be given certain protections from liability â€¦ in order to promote a safe environment for disclosure. â€¦ This legislation would provide doctors and patients with an opportunity to find solutions outside the courtroom. In return, [hospitals, insurers, and others] would be required to use savings achieved by reducing legal defense costs to reduce liability insurance premiums and to foster patient-safety initiatives.”
Former North Carolina Sen. John Edwards established his reputation as his state’s top plaintiff attorney with more than 20 malpractice awards and settlements against doctors and hospitals in birth injury cases totaling $60 million. He typically kept about a third as his contingency fee.
Edwards opposes caps on awards, but endorses “mandatory sanctions for lawyers who file frivolous cases, stronger state medical disciplinary boards, and a knowledge bank that encourages doctors to report medical errors voluntarily, making others aware of preventable mistakes.” He wants attorneys to file certificates of merit from two independent physicians to show their malpractice cases have merit before they are filed. He would bar attorneys with a history of frivolous suits from filing new ones.
Still, Edwards doubts whether there is a malpractice crisis. “I do want to push back some on what I think is mostly insurance company-driven hysteria,” he said at a health care forum in September.
Former Arkansas Gov. Mike Huckabee supports tort reform. In his 2003 state-of-the-state speech, Huckabee called for “action immediately to limit the abuse of malpractice litigation.” A year later, he signed the Civil Justice Reform Act which set a $1 million limit on punitive damages in civil cases, calling it “an important step towards achieving affordable health care and helping the state attract and keep businesses.”
Huckabee notes that health care can be made more affordable with medical liability reform and often condemns the litigation culture.
Arizona Sen. John McCain said tort reform is a top priority. He’s supported caps on awards and expressed some support for a loser-pays rule. “We cannot let the search for high-quality care be derailed by frivolous lawsuits and excessive damage awards. â€¦ Liability reforms should eliminate lawsuits for doctors [who] follow clinical guidelines and adhere to patient safety protocols.”
McCain laments increased costs stemming from defensive medicine. “In every other industry when technological advances are implemented, costs to the consumer decreases,” he told supporters in South Carolina. “This is not the case in health care. â€¦ I can’t tell you the number of tests that all of us in this room have taken just so that doctors won’t be sued for malpractice.”
As governor of Massachusetts, Mitt Romney supported capping personal injury awards and overhauling the state’s malpractice system. His proposals would have allowed doctors to disclose errors without fear of admissibility in court and reduced lawyers’ contingency fees.
“These lottery-sized awards and frivolous lawsuits may enrich the trial lawyers but they put a heavy burden on doctors, hospitals and, of course, through defensive medicine, they put a burden on the entire health care system,” declared Romney.
Romney would encourage states to create health courts with judges experienced in handling medical liability cases and would ask states to sanction lawyers who repeatedly file frivolous claims.
To discourage frivolous lawsuits, former New York Mayor Rudy Giuliani would give federal courts more discretion to quickly dismiss cases, and reform rules to require losers to pay costs and fees of their opponents if they cannot meet the burden of demonstrating a good faith basis for the suit.
He would impose sanctions for abuses during the pre-trial discovery process, and set limits on punitive and non-economic damages.
Giuliani used the tort reform issue to lash out at Fred Thompson during a televised debate in October. “Fred was the single biggest obstacle to tort reform in the U.S. Senate,” said Giuliani. “He stood with Democrats over and over again. He voted against $250,000 caps on damages, which they have in Texas.”
Thompson responded that he’s supported several tort reform measures about securities and product liability legislation that involve interstate commerce. But malpractice is a state issue. “Most states have passed tort reform,” he said. “That’s our system. It’s not all federalized.”
Thompson also voted against a measure to limit punitive damages and voted to table a measure that would have made it tougher to sue in some birth injury cases. Thompson said, “Federalism sometimes restrains you from doing things you want to do. â€¦ However, if conservatives abandon this valued principle that limits the federal government, or if we selectively use it as a tool with which to reward our friends and strike our enemies, then we will be doing a disservice to our country.”