August 1, 2012
Yesterday, the Missouri Supreme Court, in a 4-3 decision, struck down a 2005 state law capping non-economic damages at $350,000 in medical malpractice cases as infringing on “the jury’s constitutionally protected purpose of determining the amount of damages sustained by an injured party” and therefore violating the right to trial by jury.
The ruling represents a major blow to the state’s tort reform advocates. Moving forward, newly invigorated trial lawyers will seek greater damages for their clients, dramatically increasing medical malpractice premiums for doctors, who will have to shift the cost burden off to patients. Former Missouri Governor Matt Blunt, in an interview with the Associated Press, said it best: ”It’s devastating news, quite frankly, for health-care providers and patients and job-creators in the state.”
In response to the verdict, Tim Dollar [insert pun here], President of the Missouri Association of Trial Attorneys, told the Associated Press: “Everyone who believes in the constitution should be thrilled with this decision today.”
Well, we’re not. But proponents for “merit” selection in judicial elections surely are. Over at the National Review’s “Bench Memos,” Carrie Severino finds the hands of the legal aristocracy all over this ruling. “The trial bar’s influence appeared evident in the majority opinion’s reasoning,” says Carrie.
“The dissent explained: ‘[The decision overrules] more than 20 years of [Missouri] precedent that authoritatively decided this issue. The majority opinion reflects a wholesale departure from the unequivocal law of this state and leaps into a new era of law.’”
January 25, 2011
On January 4, 2011, the day after he took office, Wisconsin Governor Scott Walker called on the legislature to pass legal reform legislation to create a more “job friendly” environment in the state. (Hat tip: Shopfloor) Last week, the Wisconsin Legislature sent him a bill that will make Wisconsin a better place to do business and create jobs. As James Buchen of Wisconsin Manufacturers & Commerce, the state’s largest business group, put it:
“With other states raising taxes and passing other anti-business legislation, Wisconsin can stand apart and encourage businesses to create jobs.”
The bill would curb junk science in state courtrooms, eliminate the “risk contribution” theory, which allows corporate defendants to be sued even if their product caused no harm, and establish a reasonable limit on punitive damages.
September 8, 2010
Last week the American Medical Association joined 90 medical organizations in sending a letter to the U.S. Treasury Department objecting in the “strongest possible terms” to a proposal under consideration that would allow trial lawyers to deduct litigation expenses from their taxes. (PointofLaw.)
Trial lawyers bragged about this tax break during their annual conference in Canada in July. The proposal would give lawyers a 40% tax subsidy for up-front litigation costs.
The AMA estimates that it costs $22,000 to defend against meritless suits. According to James Rohack, former president of the AMA,
“Changing the tax policy to allow trial attorneys to deduct court costs and other expenses would cost taxpayers $1.5 billion and increase the cost of health care in our nation….This change would encourage trial attorneys to file more lawsuits.”
Treasury officials are keeping mum about the proposal, refusing to comment. Maybe they’ll answer Congress. According to PointofLaw, Sen. Chuck Grassley (R-IA), and Rep. Dave Camp (R-MI) have sent a letter to Treasury asking about the proposal.
August 17, 2010
“When the majority of doctors face medical malpractice lawsuits (90% when one narrows it to oft-sued specialties like surgery), it suggests that doctors are getting sued for practice, rather than malpractice.”
June 14, 2010
Carter Wood over at Shopfloor has an update on the Administration’s “actions” on medical malpractice reform.
A word comes to mind in describing them: “Nothingburger.”
May 4, 2010
Earlier this year, the trial bar scored a big victory at the expense of doctors and patients when both the House and Senate balked at including medical liability reform in health care reform legislation.
Today, the Altanta Journal Constitution offers an up-close look at two of the trial lawyers helping to drive health care premiums higher.
The AJC profiles Tommy and Adam Malone, the father-son trial-lawyer dynamic duo. It was in ruling this spring on one of Adam Malone’s cases that the Georgia Supreme Court overturned the state’s pain and suffering awards cap.
In between flights on their private planes and visits to homes in the Bahamas and Palm Beach, the two convince Georgia juries to award their clients multi-million dollar verdicts.
Their take? 40%. Read more
April 1, 2010
Throughout the national health care debate, I wrote several items regarding President Obama’s bold pledge to work with Republicans on medical liability reform. Well, for those of you who wanted to believe in the audacity of such hopes, the Washington Times editorial page pounds the final nail in the coffin:
“President Obama made a big show about being open to sonme Republican reform ideas to rein in lawsuit abuse. Those pledges – which Mr. Obama made twice in public forums – were worthless. The final version of Obamacare, as signed into law, is a dream come true for big-money plaintiffs’ lawyers.”
The new health care law does contain a provision for enacting state medical liability reform demonstration projects, but these projects contain an opt-clause for plaintiffs to use whenever they want. As the Washington Times editorial makes clear, such projects may be worse than no reforms at all.
“…[N]ow plaintiffs effectively get even more power because they can pick and choose whicever system they think is most likely to get them the most cash. The demonstration projects — for ideas such as specialized “health courts,” where expert panels replace random juries — therefore become not a real alternative that levels the playing field, but instead just one more tool in the lawyers’ arsenal.”
Full editorial is here.
March 24, 2010
The Wall Street Journal Law Blog has a nice little summary of how medical liability reform fared in the giant, trillion-dollar health care bill President Obama signed yesterday. In the final analysis, $50 million will be made available to states that want to launch “demonstration projects” to develop alternative dispute resolution procedures and promote a reduction of health care errors. But of course there’s a catch.
“… if a state does go the alternative-dispute resolution route – and sets up, say an arbitration system presided over by a panel of medical experts – there’s a huge loophole. The law allows any plaintiff to ‘opt out’ of a program he or she doesn’t like, and pursue his or her claims in state court.”
That’s what “tort reform” looks like when the majority party in Congress is beholden to the trail bar for over $178 million in campaign contributions during the last election.
February 23, 2010
President Obama has said he’s willing to work with Republicans on “a comprehensive package to deal with” medical liability reform. But according to news reports, the new package he unveiled yesterday contains not a peep about a reform that even the Congressional Budget Office estimates could cut health care costs by $54 billion.
Throughout the health care debate, the president has never been shy about trashing doctors he believes order up tonsillectomies so they can make more money. He’s also put health insurers in his sights, proposing to put Washington in charge of setting insurance rates. I guess crossing the powerful and generous trial bar ($781 billion in contributions to congressional Democrats since 1990, and yes, that’s billion with a “b”) is a bridge too far.
February 5, 2010
In a disappointing and tortured decision, the Illinois Supreme Court threw out limits on noneconomic damages in medical liability cases yesterday, overturning bipartisan legislation passed in 2005 that enjoyed broad public support. Ed Murnane, President of the Illinois Civil Justice League, blasted the court for “siding once again with the trial lawyers” over patients and doctors.
According to American Medical Association President James Rohack (who is quoted in today’s Chicago Tribune), when the Illinois Supreme Court overruled the state’s previous damage cap in 1997:
“Severe problems with patient access to care emerged as the unrestrained excesses of the state’s legal system forced Illinois physicians to limit services, retire early, or move to other states where liability premiums are more stable. Without a cap on noneconomic damages from 1997 to 2005, Chicago physicians saw their liability premiums increase an average of 10 to 12 percent each year. When the cap was reinstated in 2005, premiums for Chicago physicians stabilized and even began to shrink.”
This is the third time the Illinois high court has struck down medical liability limits, demonstrating that it “simply will not be bound by the duly enacted acts of the legislature when certain issues important to its lawyer constituency are at stake,” writes Walter Olson in a post at PointofLaw.com that picks apart the court’s legal analysis.
The Illinois court’s “lawless” decision (Olson) demonstrates beyond any doubt that the best tort reform is getting the right judges on the bench.