A Starting Point on Medical Liability Reform
October 30, 2009
Mort Kondracke calls on Congress to move on medical liability reform in a Roll Call article today. He says a middle ground estimate of the costs of defensive medicine — where doctors perform unnecessary tests and procedures out of fear of being sued — comes in at around $100 billion a year or $1 trillion over 10 years.
Kondracke pushes an idea pioneered by legal reformer James Wootton which promotes “early settlement offers, mistake-prevention discussions, use of independent experts and comparability standards for damage awards.” Given the trial lawyer lobby’s pervasive influence in Congress and success at blocking real medical liability reform — such as reasonable limits on non-economic damages — the Wootton idea might be a good place to start. Writes Kondracke:
“Before Congress and the president complete the health care reform process this year, they need to take decisive action on the malpractice reform front - not kick it into the future with mere studies.”
Whether they actually do so will test whether Congress and the Obama Administration are serious about reining in health care costs by diverting the flow of $$$ from the trial bar back to patients and doctors, where it belongs.
Another Voice for Medical Liability Reform
October 27, 2009
Columnist Charles Krauthammer makes the case for making medical liability reform a key component of our health care overhaul in an interview published in Der Spiegel. In addition to being a Pulitzer Prize winner, Krauthammer is also an M.D., Harvard Medical School, class of 1975. Money graph:
SPIEGEL: How could Obama still win Republican support for healthcare reform?
Krauthammer: He should finally realize that we need to reform our insane malpractice system. The US is spending between $60 and $200 billion a year on protection against lawsuits. I used to be a doctor, I know how much is wasted on defensive medicine. Everybody I practiced with spends hours and enormous amounts of money on wasted tests, diagnostic and procedures — all to avoid lawsuits. The Democrats will not touch it. When Howard Dean was asked why, he said honestly and explicitly that Democrats don’t want to antagonize the trial lawyers who donate huge amounts of money to the Democrats.
More Trouble At ACORN
October 26, 2009
After a couple ACORN employees got caught advising two investigative reporters about how to avoid paying taxes on a brothel they wanted to start, ACORN’s leadership fired the employees and tried to chalk up it all to a few bad apples.
But a recent Department of Housing and Urban Development (HUD) report, as reported in USA Today demonstrates that the mismanagement at ACORN is a systemic problem, not an isolated scandal.
Between 2002 and 2008, federal funding for a HUD program to help people avoid foreclosure on their homes has more than tripled to $65 million – much of which is funneled to ACORN and other community groups. President Obama’s budget calls for increasing it to $100 million. There’s only one problem: HUD “has been unable to provide much proof the program works.” According to HUD:
- “At present there is limited evidence of the benefits of counseling in making homeownership more sustainable.
- “Despite not meeting its expectations, HUD continued to propose increases in funding.”
Following the now infamous videos, the House and Senate voted to end federal funding for ACORN. HUD’s reports confirm the wisdom of these votes.
The Arrogance of Power
October 21, 2009
A Washington Times article chronicles a decision by the Obama Justice Department to forbid Kinston, NC (population 23,000) from doing away with party affiliations in local elections. The Justice Department concluded that having city council and mayoral candidates run on a nonpartisan slate “would violate black voters’ right to elect the candidates they want.” (The population of Kinston, NC is two-thirds black.)
“Removing the partisan cue in municipal elections will, in all likelihood, eliminate the single factor that allows black candidates to be elected to office,” explained the former acting head of the Obama Justice Department’s civil rights division. So in other words, the Obama Administration believes the only way an African American can be elected to office is by riding the coattails of the Democratic Party. What a disturbingly condescending view!
The president of the local NAACP found the contention laughable. Said William Cooke, head of the Kinston/Lenoir County branch of the NAACP:
“… even though no party affiliation shows up on a ballot form, candidates still adhere to certain ideologies and people understand that, and are going to identify with who they feel has their best interest at heart.”
Removing the “non” from nonpartisan elections is going to keep the Justice Department pretty busy over the next few years. As the Washington Times article notes, only nine of North Carolina’s 551 cities and towns hold partisan local elections.
South Carolina Decision Highlights Need to Act On Punitive Damages
October 20, 2009
A recent South Carolina lawsuit highlights the problem of allowing emotionally-charged juries to award punitive damages with no guideposts. The case involved a man who claimed his medical insurance was wrongly rescinded. The jury originally awarded $186,000 for actual damages and a bad faith rescission claim. Sounds reasonable. But the jury tacked on an additional $15 million in punitive damages.
The South Carolina Supreme Court stepped in and reduced the punitive damages to $10 million, which it claimed was 9.2 times the “potential harm” the plaintiff suffered. But the punitive damages need to bear some relation to the actual harm, not some back-of-the-envelope calculation. Even using the Court’s absurdly high 9.2 ratio, the punitive damage award should have been no higher than $1.7 million.
Even more ominously, in a footnote the Court concluded that although punitive damage awards in South Carolina “have been on the low end of the single-digit-ratio spectrum…that does not mean the constitution requires this to be so.” In other words, the Court practically invited aggressive trial lawyers to shoot for ridiculously high punitive awards down the road.
All of which makes it even more urgent for South Carolina’s legislature to enact a pair of bills that would limit punitive damages to three times compensatory damages or $250,000. This would give runaway juries (and judges) the guidance they need to make reasonable determinations in awarding punitive damages.
Two Washington Judges Stand Up For Democratic Judicial Elections
October 14, 2009
These days, when so many legal elites are actively campaigning to abolish judicial elections and insulate judges from their bosses (i.e. the public), it’s refreshing when two eminent members of the bar stand up for the rights of voters. In a recent Seattle Times op-ed, Judge Deborah Fleck of the King County Superior Court and Washington Supreme Court Chief Justice Gerry Alexander laud the state’s system of judicial elections, noting that Washington voters have enjoyed the “constitutional right to elect their judges since statehood in 1889.”
Judge Fleck and Chief Justice Alexander bore straight to the heart of “merit” selection’s deepest flaws:
“Rather than informed voters electing judges, both the selection of the [merit] commission members and behind-the-scenes contacts with them create opportunities for special interest groups to have substantial influence over who the judges ultimately are.”
Both judges understand clearly why the public role in judicial selection must be preserved and make a strong case for contested elections:
“Judges have tremendous power over people’s lives, liberty and property. We must make tough decisions that sometimes run counter to public opinion. With our current election system, if a judge is challenged because of an unpopular decision, at least the public has candidates to choose from. Under the other system [merit selection], judges may hesitate to make correct but unpopular decisions, knowing they may be judged on that decision alone in a retention election, rather than on their qualifications.”
Judge Fleck and Chief Justice Alexander flirt with a couple bad ideas, while stopping short of explicitly endorsing them (like public financing of judicial campaigns). But on the whole, they express a healthy skepticism of “a less-transparent commission system that restricts voter choice” and strong support for an election system they believe fosters an fair, independent judiciary:
“Washington’s election system provides the people with capable judges who tend to have a degree of humility that balances their broad powers, in part because they are accountable to the voters.”
Amen.
Worth Reading: Blackwell On Voter Registration
October 5, 2009
Former Ohio Secretary of State Ken Blackwell has a good piece in today’s Washington Times on how to reform our voter registration process and keep corrupt organizations like ACORN at arms length. Money quote:
“By using technology to make voter registration more automated, we can save money and get rid of those groups that thrive by gaming the voter registration system.”
Seizing The Florida Legislature Through Sleaze And Corruption
October 5, 2009
What do you get when you cross two organizations - one sleazy, the other corrupt? Answer: A new redistricting scheme for Florida called FairDistrictsFlorida.org!
According to Sunday’s Orlando Sentinel, some of Florida’s top trial lawyers (whose lobby arm admitted to sending out a racist mailer) in a Florida senate race) and ACORN (enough said) have teamed up to try to seize the Florida legislature from the Republicans. Since they can’t seem to win at the ballot box, they’re spending big $$ to influence the redistricting process, hiding behind the veil of nonpartisanship of course. That act has grown so old even the mainstream media smirks these days, with the Sentinel reporting that “Democrats and left-leaning groups have done the heavy financial lifting so far.”
The goal is to put a constitutional amendment on the ballot to hamstring the legislature, which must draw up new state House and Senate districts once the 2010 Census is completed. ACORN was supposed to be a “partner” in collecting data for the 2010 Census, but that partnership was severed last month after ACORN employees were caught on tape advising investigators posing as a pimp and a prostitute how to dodge tax laws.
Census Director Robert Groves said ACORN’s participation “may even become a discouragement to public cooperation, negatively impacting 2010 Census efforts.” Looks like ACORN hasn’t given up on trying to influence the census and redistricting - they’re just attempting to do it through the back door.
ACORN and the Florida trial lawyers should slither back into the swamps where they belong.
Heritage Tracking Judicial Activism
October 2, 2009
One of America’s leading think tanks - the Heritage Foundation - is launching a new website to track egregious cases of judicial activism. Over the last few decades, it’s become common for judges to exceed their authority, inserting themselves into business, regulatory and social issues that are rightly the domain of lawmakers. The trial bar has pushed to put tort-friendly judges on the bench, both through campaign contributions to activist judicial candidates and through “merit” selection schemes that allow them to decide directly who runs the courts. Kudos to Heritage for what promises to be a great resource for all tort reforms and court watchers.
Hard Facts About Medical Liability Reform
October 2, 2009
In POLITICO today, Congressman Lamar Smith takes on the head of the trial lawyers lobby, Anthony Tarricone, over his claim that “tort reform will do nothing to fix health care.” To make his case, Smith marshals some impressive facts:
- According to a study by the Harvard School of Public Health, 40% of medical malpractice suits are without merit.
- The U.S. Department of Health and Human Services (HHS)estimates unlimited excessive damages adds between $70 billion and $126 billion to health care costs every year.
- According to HHS, doctors order $60 billion worth of unnecessary tests, procedures and other forms of defensive medicine - in large part to protect themselves from abusive lawsuits.
- The Congressional Budget Office estimates that limiting non-economic damages - awards for “pain and suffering” - would reduce medical liability insurance rates by 25% to 30%. Lower liability premiums mean lower health care costs.
The trial lawyers lobby is desperate to scare Americans into believing the medical liability reform will limit their access to the courts in the event of a true medical mistake. But the only thing it will limit is the ability of trial lawyers to walk away with Powerball-sized legal fees.