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Sunday, February 13, 2011

If You Hate The Health Care Mandate, How Can You Love Federal Tort Reform?

Medical malpractice tort reform is one of those supposed remedies frequently mentioned as a cure to lowering health care costs. 

Currently being debated is H.R. 5 (most recent mark up here) which would create a federal medical malpractice reform modeled on what has taken place in California, including caps on non-economic and punitive damages and attorneys fees.

Put aside whether you support tort reform and even whether it is effective.  (If you want to know, I have very mixed feelings on the policy.  On the one hand, I am disgusted with the culture of ambulance chasers, something I consider an insult to the people who actually do suffer from malpractice and deserve compensation; so I am very sympathetic for the need to do something.  On the other hand, I am against arbitrary caps which deprive those who need the compensation most.  There has to be a third way between the free-for-all we now have and inflexible caps.)

Professor Michael Dorf of Cornell Law School raises a point -- one I have thought about before but never written about -- that there is a potential inconsistency between those committed to a limited reach of the Commerce Clause when it comes to the federal health care mandate but not federal medical malpractice reform:
"But there's also an interesting intra-conservative fight potentially brewing here. Medical malpractice lawsuits, after all, seek damages in tort, an area of law over which states have traditionally exercised sovereignty. Folks like me, who think that Congress has broad latitude to regulate under the Commerce Clause, have no difficulty seeing the package of federal limits as constitutional, even if we don't think it's desirable policy. But what about all of those self-styled patriots in tri-corner hats who go on incessantly about how the federal government is a government of enumerated powers and worry about the modern Commerce Clause jurisprudence making the feds omnipotent? Shouldn't they be worried about this federal government takeover of state tort law? You betcha....
When push comes to shove, most elected officials are fair-weather federalists.  They tend to invoke states' rights when they dislike the substance of federal policy and to forget about states' rights when they like the substance of federal policy.  But at least in the short run, it will be interesting to watch the intra-conservative debate on these and other issues.
Is this a fair point?   

If we are against the federal government forcing us to purchase health insurance, shouldn't we also be against the federal government telling us which state common law remedies we can pursue and on what terms?  Isn't this a matter for the states?

As pointed out by Dorf, an article in Politico highlights two Republican Congressmen who are raising this very issue:

The House Judiciary Committee probably will be able to approve a medical malpractice reform bill next week, but Republicans are facing one concern from their own side: Don’t mess with Texas.

At the markup Wednesday, two committee Republicans - Ted Poe and Louie Gohmert - raised concerns that the bill might override states' own limits on medical liability lawsuits. They raised doubts that the federal government has the power to do that under the Commerce Clause, and they want to make sure the bill doesn't violate states' rights under the 10th Amendment. 

Unlike the Democrats who oppose the bill - on the grounds that medical lawsuit limits are unfair to the victims of malpractice - Poe and Gohmert aren't opposed to the idea of tort reform. Poe just wants to make sure Texas gets to keep its own law, which caps "pain and suffering" damages at $250,000, and Gohmert wants to look out for all of the states.

“The question is: does the federal government have the authority under the Commerce Clause to override state law on liability caps? I believe that each individual state should allow the people of that state to decide – not the federal government,” Poe said in a statement after the markup.
I think there are distinctions which could be drawn between the mandate and tort reform, since tort reform does not require that one purchase a product.  Most people who are against the mandate would acknowledge that the federal government can regulate the health care system, but that the mandate is a step too far.

On the other hand, regulating the tort system is not quite the same thing as regulating the health system, although there is a relationship between the two.

Bottom line.  The mandate must go.  There is no reason to give up on the clear-cut issue just because other issues are less clear.

Tort reform needs a careful airing of the constitutional issues before any vote; but at this point I'd be inclined to leave it to the states.  If you don't like your state's tort system, do the same thing you would do if you didn't like its tax or other systems:  Move.

(Please, no "consistency is the hobgobblin of little minds" comments).

Update:  Thanks to commenter Showbiz111 for pointing out that I left the word "foolish" out of the quote in parentheses immediately above, and thereby did not do justice to Emerson's text:
"A foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines. With consistency a great soul has simply nothing to do. He may as well concern himself with his shadow on the wall. Speak what you think now in hard words, and to-morrow speak what to-morrow thinks in hard words again, though it contradict every thing you said to-day. — 'Ah, so you shall be sure to be misunderstood.' — Is it so bad, then, to be misunderstood? Pythagoras was misunderstood, and Socrates, and Jesus, and Luther, and Copernicus, and Galileo, and Newton, and every pure and wise spirit that ever took flesh. To be great is to be misunderstood."
And a reader poll is in order (poll closes at Noon E.S.T. on Monday, February 14):

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  1. Tort reform should be handled on a state-by-state basis. No-brainer.

  2. Forgive me but it's a 'foolish consistency' that is the hobgoblin of little minds.

  3. As I understand it, most conservatives want to reform health care by eliminating federal barriers to interstate trade. Most support tort reform at the state level, but want to abolish federal regulations that make state reform more difficult.

  4. First of all, I believe it is a state's issue, and should remain within the states. I also believe that the federal government can issue guidelines that will not encroach this power, but tell the states they must address this issue - all 50 of them, no exceptions. As it is, many of the "ambulance chasers" go for the money, and get paid regardless of - or as a percentage of - the outcome. That needs to be changed by the states, too.

    That said, I remember (yes, I am showing my age) when lawyers were not allowed to advertise, for this very reason (i.e. ambulance chasers). This change happened in the '60s, which makes me immediately suspect the change. Lawyers could only "hang out their shingle" as an advertisement, and put their names and partnerships in the phone book.

    Perhaps this restriction should be revisited? On a state level, of course. Advertising for most lawyers is all about getting people to sue. A "sue happy" society - we see the outcome.

    I don't mean to hit too close to home, but lawsuits exploded once lawyers were allowed to advertise. Again, addressed by the federal government as a guideline issued ensuring the states must all comply. This, I believe, would vastly reduce the need for tort reform in the first place.


  5. I think it's more of an oversight than an inconsistency. Most non-lawyers have no idea how tort law works, or even what it is. I think if you explained it to people, then they'd shift from federal tort reform to state efforts very quickly.

    Also ... hobgoblins? *chuckles* It's still a funny word.

  6. "Isn't this a matter for the states?"

    Yes. Clearly. Applying the commerce cause to malpractice suits doesn't even make sense. This is not a federal matter.

    Though I have to ask, are there federal malpractice laws already?

  7. Tort reform on the Federal level is rather like separation of Church and State: very likely a good idea, but not constitutional. So, leave it to the states.

  8. Of course it should be up to the states; however, here's a potential down side: would the medical professionals (especially anaesthelogists and obstetricians) move to the newly tort-regulated areas, leaving the "blue" states to be mired in legal folderol? And then, would that movement be seen as "commerce" (given the liberal interpretation of the clause), due to interstate movement of MDs? Moreover, would a followup "federal fix" be required to level the playing field? Out here in SD, my guess is that sanity would prevail (past elections of Tom Daschle and Tim Johnson notwithstanding) and tort reform would be passed easily in the state house. I'd welcome more outstanding medical professionals here (not that we are hurting where I live). OTOH, maybe the legislatures in "blue" states would wake up and incorporate tort reforms when they anticipated an nascent exodus.

  9. OK. For us back here in the "F" row...

    I have for several minutes been trying to think of a hypothetical case so absurd that it could not possibly involve anybody real.. Having given up on that, let me offer this, with apologies to any real people--I didn't know.

    Given: A child, widely recognized as "out of control" runs through the open front door of the house nearest where his mother has stopped her car to empty the ash tray into the street.

    Having run through the door, the child spots a brightly colored toy outside in the swimming pool and runs toward it, tragically bumping into the closed sliding-glass door, giving himself a bloody nose.

    The ensuing court processes end with the mother getting an $8 million judgment against the man that sanded the wooden handle of the sliding glass door that her out-of-control child ran into in the course of an outrageous series of events. Tracing forward in time from, say Magna Carta, what is the foundation and underpinning under the finding that the obscure workman (or any other human on the planet besides the child's mother) is some how responsible?

    What is the authority for a finding of "damages" that exceed any estimate of harm done, including mental anguish by orders of magnitude?

    Can those be changed by state or federal law without running afoul of your concern?

  10. A third way: You could leave it to the states with federal incentives for tort reform.

  11. A shorter summary of the point I am trying to find, perhaps......

    Rather than pass a law the requires or forbids some action, can legislation be used to selectively destroy the underpinnings of outrageously abusive law without attacking nearby sound law?

    (Makes me think of the problem with chemotherapy.)

  12. Medical Tort reform belongs to the States. And there should be no federal interference.

    OT If they want to reform the Tort System, how about taking away standing to the flat earth,environmental nut jobs?

  13. Perhaps one should examine the tort reform laws in Texas. It has acheived a few positive things; more doctors have decided to practice in Texas, there are fewer ambulance chasers hitting hospitals handing out their cards, and our health insurance premiums have decreased, not increased.

    With that said, I have a problem with the whole "pain and suffering" argument. If I lose my leg to a piece of faulty equipment owned by my boss, who determines how much pain or suffering I have endured? And what it was worth? No one, but people like John Edwards made millions of dollars convincing courts that he did.

    No one can replace my leg. Ever. So what any legal payout should involve is to cover the costs of a) my medical bills, b) my lost income adding normal expected increases in that income and c) any expenses related to my injury like having handicap ramps build to my front door. Pain and suffering is subjective.

    We have become sue happy as a nation. When a woman can buy a cup of coffee that is advertised as HOT, put it between her legs and spill it while driving, she should not be able to sue the company for providing her with what they advertised. But a woman did just that and was awarded millions of $$. For her own stupidity.

    These kinds of law suits have to end and I am al for "loser pays" in our judicial system.

  14. Thanks for the article. The only role I can see for the Federal government is regarding the sale of insurance across state lines since the Commerce Clause was written to prevent state interference with the free flow of commerce between citizens of different states.

    Leave tort reform to the states. Viva la Texas!

  15. Tort reform is beyond any original intent of the commerce clause, and thus unconstitutional.

    Unfortunately, the Federal government has an interest in tort reform because it directly impacts Medicare and other Federal government medical programs.

    Now my reading of the Constitution makes it a no-brainer that all of these Federal programs are unconstitutional. So lets get rid of all of them.

    But assuming that isn't possible, then tort reform is up in the air too. Do we keep Medicare, saying it is constitutional under the commerce clause, yet ban regulations that might help keep it's costs under control because they're unconstitutional?

    So how about splitting the baby this way: Enact Federal tort reform regarding any lawsuits dealing with medical procedures paid for under Federal programs.

    That way, we don't stomp on states' rights any more than we have already. And when we can finally right the original wrong by eliminating all unconstitutional Federal medical programs, then the second wrong of Federal tort reform will go away as well.

  16. Not to put too fine a point on it, but is Emerson telling us that Christ was "inconsistent"?

    Or did he write that after ingesting a few Leaves of Grass?

  17. Dr Jacobson

    A Commerce Clause question to tie into this. If Congress cannot impose changes to tort law (and I tend to agree that's outside of the range of the Commerce Clause) do you belive the feds can mandate allowing insurance companies to sell in all 50 states? I definatley believe allowing the over 1000 health insurance companies to sell in every state will drive down cost. But do you think it's in the ligitimate power of the federal government.

  18. The answer to the medicare conundrum is in a proposal (Congressman Ryan?) that medicare be converted to a voucher system. That is, rather than the Feds picking up the bill each enrollee would receive a payment to purchase their own insurance. This would place the increased insurance premiums for loose tort laws on the individuals, who could lobby their state govt for tort reform.

  19. A suggestion only:

    I agree that this belongs to the individual states.

    What if this was a "uniform code": in other words the states had to agree with the code?

    Here in Australia we had that with our Companies Law - it was a uniform Companies Act.

    The real suggestion though relates to the subject of class action lawsuits:

    If the class action covers more than one state, then a case could be made that Congress could regulate those lawsuits.

    This is a thought, a suggestion, since I do not know the way you do these things.

  20. When I was a Libertarian, the party persuaded me to run for CA State Senate (1998) and, as a candidate, there were questionnaires mailed from various groups where you had to go on the record with your positions on a variety of things such as tort reform which I really didn't understand at all. I found it nearly impossible to choose in some of the examples where you would have to pick a certain dollar amount cap (from several given) that you felt would be justified for the particular stated injuries they provided--how to pick one over the other?!?

    I remember standing in a bookstore reading Greta van Susteren's suggestions in a book and liking them...I guess the following is what I was reading about...now I don't know after that "lefty" label business below...

    Another issue Van Susteren takes on in Bully Pulpit, of particular interest to legal enthusiasts, is the debate surrounding tort reform. She takes a position she presumes will categorize her as "a lefty trial lawyer," rejecting the idea that Congress has a right to propose an arbitrary liability limit for pain and suffering damages in tort cases. Van Susteren reviews the popular McDonald's hot-coffee case as an example, taking readers below the sensational headlines to reveal lesser-known facts on the company's prior awareness of its coffee's dangers (they kept it hotter than normal to stretch the time they could keep it) and the outcome of the trial (millions of dollars were not awarded). She calls out the insurance industry, "hourly-rate lawyers," the judges, and the media as the main culprits in the tort game and comes off as an outright populist in her defense of the jury system: "We are neither too stupid to understand a case nor likely to overcompensate a plaintiff with unreasonable damages. As citizens serving on a jury, we are doing our job and do not need to be 'reformed' by the power of influential money."


  21. And how should states deal with tort reform if their supreme courts nullify their attempts? This is directly from the bill (H.R. 5) being proposed:

    "Many State supreme courts have judicially nullified reasonable litigation management provisions enacted by State legislatures, many of which sought to address the crisis in medical professional liability that reduces patients' access to health care. Consequently, in such States, passage of federal legislation by Congress may be the only means of addressing the State's current crisis in medical professional liability and restoring patients' access to health care."

    If activist state judges are blocking tort reform at the state level, federal involvement seems a necessary evil.

    Also, the bill clearly states that any state legislation dealing with tort reform already in existence prior to H.R. 5 will be preserved. Texas has nothing to worry about.

  22. "There has to be a third way between the free-for-all we now have and inflexible caps."

    A lawyer who has never heard of loser-pays?!

  23. Dorf's analysis is pretty pathetic. Congress has authority to regulate medical malpractice issues under the boundaries of the CC as it is currently interpreted by existing case law. Such regulation would involve no extension of the contours of CC case law doctrine.

    By contrast, there is no precedent to support the position that Congress, acting pursuant to its authority under the interstate commerce clause, can compel an individual to engage in acts of commerce. Upholding the mandate requires a major extension of CC law boundaries.

    For failing to spot this distinction, Dorf gets zero points. For presenting a seriously flawed and incomplete constitutional analysis in his smug and condescending writing style, Dorf deserves a roundhouse kick square in the nose, preferably by a member of the Tea Party who is wearing a tri-pointed hat.

    Orin Kerr has been pedaling a similarly lame constitutional analysis over at VC, and in similarly smug and condescending tones. Perhaps this will lead to some new entries in the Urban Dictionary: Dorf(v) or Kerr(v): to advance a wholly unsupported legal argument using smug and condescending tones intended to portray anyone who questions your argument as being an illiterate hayseed.

  24. How about instead of tort reform, we just establish some very stringent "truth in advertising" rules and require litigation attorneys to disclose exactly how the money in advertised tort settlements has been distributed?

    Most people who sue have visions of "lots of fast and easy money".... then they meet reality.
    In most contingency cases, the attorney gets %50 or more off the top.
    The individual must pay the state and federal taxes on the full amount of the settlement - similar to those paid on casino winnings. Then, there is "recovery" by Medicaid, your insurance company, the hospital and the doctors who have either paid for or had written off the costs associated with treatment.
    Income from settlements will disqualify the individual from Medicaid, SSI eligibility, food stamps and other government assistance.
    I can't even guess what happens now that there are companies out there who will provide 'income' for you to live on while you wait on your lawsuit and groups that "fund" lawsuits for a percentage of the settlement.

    Possibly more people would think twice, if they realize how little they will most likely receive at the end of several years of litigation.

  25. This book I read recently by Deane Waldman, “Uproot U.S. Healthcare” shows how and why tort reform won’t work. It also suggests a way to make medical malpractice work. Thought I'd share!

  26. a sampling of these comments demonstrates very clearly:... a little information is a dangerous thing, and fosters unlimited misunderstanding...

    contingency fees: these are designed to allow the poor who cannot pay hourly fees equal access to the court house just the same as the big corporation which pays its lawyers $500+/hour plus expenses win or lose

    DINORightMarie said: "As it is, many of the "ambulance chasers" go for the money, and get paid regardless of - or as a percentage of - the outcome."

    FALSE; if the contingent lawyer loses the case, they eat all the expenses and get NO fee, period, thus the myth of "frivolous lawsuits" is just that; no lawyer can risk $100,000 of expenses on a case they know to be w/o merit, or at least you can't do it more than once and stay in business; besided, do you REALLY think the insurance company lawyer is not smart enough to defeat a bogus case ???

    retire05 commented about pain and suffering, and the "McDonald's" case

    pain and suffering are intangible harms and losses, but are real; if my negligence forces you to sit in a wheel chair, or have 24/7 pain the rest of my life, who can say you are not damaged? however, arbitrary "caps" on such damages such as $250,000 degrade the value and sanctity of life and independence; who would agree to be paralyzed for 50 years at $5,000/yr ??

    McDonalds: get your facts before you voice "opinions"; she was NOT driving; she did not win "millions"; her 3rd degree burns on her genitalia requiring skin graft surgery was valued at $200,000, and the jury assessed 20% of the blame against HER for her own share of personal responsibility, which reduced her share to $160,000, only a small portion of which McDonalds eventually paid after several years of appeals; she originally offered to settle for $20,000, but McDonalds refused to settle, just as they did the other 700+ injury claims figuring it was easier to burn people and make them fight than to fix the problem; McDonalds intentionally jacked with their coffee machines to raise the temperature to 190 degrees instead of the industry standard of 160 degrees, knowing it would burn skin in seconds just because they had cheap coffee and it tastes better hot; McD's could have bought better coffee, but that would cost money...you should take moment and search youtube for the documentary: "hot coffee; the movie"

    bottom line: the framers of our Constitution added the 7th amendment telling us that the right to trial by jury, not a legislature, "shall remain inviolate", what about that has changed ?? a jury is a group of average people who have listened to ALL the evidence, from both sides, in a fair contest, then they deliberate and come up with a collective decision; none of us can accurately assess a case w/in a few seconds of reading a headline or hearing a sound bite as well and with the same accuracy as a group of diverse citizens hearing days or weeks of detailed testimony subjected to the best cross examination to ferret out the truth

    anyone else is simply reaching opinions w/o adequate information and facts

    go get educated before you "open your mouth and remove all doubt"


    david ransin

  27. p.s.

    if you really want to put all plaintiff injury lawyers completely out of business, instead of tort 'reform', put all this effort and money into making hospitals safer; if no one is injured or killed, there would be no basis to file any claim;

    you should read the book: "why hospitals should fly" which chronicles how the airline industry fixed itself w/o interference by the gov't and no trampling of constitutional rights

    also research: Headline: "2010 marks another year with no U.S. airline fatalities"

    POINT: Yes, it IS possible to save lives and TOTALLY avoid any deaths ..... for 700 million people (including ONLY 14 serious injuries) WITHOUT:

    -tort "reform"
    -caps on damages
    -federal legislation usurping states' rights
    -changing the constitution
    -restrictions on the right to a jury trial
    -artificial rules about what is billed and what is paid
    -interferring between people and their providers
    -putting providers out of business
    -driving providers out of your state
    -raising consumer costs to prohibitive levels
    -restricting fair trade

    thanks, david.

  28. Yes, I think it's a matter for the states. The problem with that, as with much of what goes on in crazy states, is that it ends up costing us all because there is no restriction to how much federal tax money gets funneled to states that are irresponsible and reckless (and even, actually, to those that aren't). I'm tired of paying for California's stupidity and for airports in Nevada and for every other stupid thing that different states suddenly need federal money for (teapot museums, studies of drunk college kids, armadillo underpasses, and who knows what else). If states are going to be responsible for these things, then the federal income tax needs to be changed, along with the appropriations of federal tax money, to recognize state responsibility. That's where we run into problems, again, because some states are less populated, less wealthy, etc., so they can't possibly be expected to build their own roads, maintain their own bridges, or pay for myriad medical tests that are run only and solely so that doctors don't get sued down the road for missing a brain tumor when their patient came in with a bunion on their big toe. And let's not forget that doctors also need to pay those gigantic malpractice premiums to ensure that they aren't sued into bankruptcy, so that gets tacked on to all of our medical costs, including our insurance and taxes (because not only are we already footing the bill for illegals, but we are also already paying for the poor's health care via MedicAid and have been for decades. That's what gets me about the leftists bizarre insistence that don't want people to have health care, clearly we do; we just don't want the government running it.).

    Got off-topic there, but it's complicated. Tort reform is needed, but at what level? The state? Sure, but what good is that if the feds just send taxpayer money to the states that don't implement tort reform? None. We'll all have to pay, anyway, no matter how responsible or wise our state is.