As many of you know, there is a congressional “Super Committee” set up to look for ways to better balance our budget via expenditure cutbacks and/or revenue increases. And among the ideas floated by certain conservatives, is to sneak medical malpractice “reform” into the package.
Today it is someone else’s turn to hold the torch, that being Andrew Cochran, founder of The 7th Amendment Advocate, a website dedicated to educating the public and policymakers on the centuries-long history of the right enunciated in the 7th Amendment to a jury trial for civil suits.
Cochran today sends a 10-page letter to the Super Committee members, dwelling mainly on this issue: That conservatives cannot scream that President Obama’s health care law is unconstitutional as a federal power grab while at the same time asking to give the federal government more power.
The letter, filled with essential links and quotes, is here: Letter to “Super Committee” Opposing Federal Tort Reform Proposals.
Today a Republican majority takes control of the House of Representatives. And their first order of business is to read the Constitution. And they want every new piece of legislation to set forth which part of the Constitution authorizes each bit of legislation.
Perhaps I will be pleasantly surprised and the House of Representatives will stay true to the Constitution. But based on historical precedent, I won’t be holding my breath. For on this issue it is only in theory that the political right believes in less government oversite. When it comes to protecting corporations, they do an about-face to strip rights away from the people.
Bear in mind that there are many tens of millions of dollars that flood into the politics in the legalized bribery system that we have. When politicians are asked to choose between protecting Big Business from lawsuits, and protecting the rights we have in the Constitution, it seems logical to assume that principle will fall by the wayside for many. The Constitution, after all, doesn’t write checks.
Since the Tea Party is a nascent and disorganized collection, I’m tossing out eight questions for those conservatives in the movement to ponder as they decide which side of the tort “reform” debate they are on.
Why are these questions important? Because the Tea Party movement is not yet corrupted by campaign money. Leaving aside the charges of racism leveled against some in the movement, and which certainly exists in some segments, I suspect that others actually care about political theory. It is for these people that I ask these questions:.
1. Do you believe in limited government? If so, does adding protections and immunities for negligent people/companies comprise bigger or smaller government?
2. Do you believe in a free market? What are the free market benefits of protecting companies that make dangerous products? Should companies that create safe products be rewarded and should companies that make unsafe products go under?
3. Do you believe in personal responsibility? If so, do you want to nevertheless limit the responsibility of negligent parties and shift the burden to others?
4. Who should pay the costs of an injury? The negligent party or the taxpayers? Will it be Medicare or Medicaid that will pay with your tax dollars? Or will it be a state fund, like the one proposed in Oklahoma? If you believe in having the taxpayers pay for injuries inflicted by others, how much extra in taxes are you willing to pay to protect the tortfeasors?
6. Should we give the government more power by disbanding the jury system? One of the results of the Revolution against King George was establishing the right to trial by jury. It is mentioned in the Declaration of Independence as well as the Sixth and Seventh Amendments of the Bill of Rights and acts as a check on government power. (See: Should Obama Sit Jury Duty?) Do you want the government to have more power?
7. Do you want to toss out political theory in favor of the pragmatics of protecting doctors and hospitals from an avalanche of medical malpractice cases? If so, should you consider that medical malpractice payments have actually hit a new low?
8. Do you believe in states rights? Would federal tort “reform” legislation that limits the state-run civil justice systems run contrary to that concept?
The current state of the Republican Party, it seems, grabbed the tort “reform” issue many years ago despite the fact that it makes no sense at all from a conservative perspective. I’ve always assumed that this was because the party had sacrificed ideology for money.
And there are plenty of tort “reformers” who suddenly understood the significance of what they were doing only after they were injured by the negligence of others.
But the Tea Party is without any meaningful donations, and has the luxury of staying true to conservative beliefs. Will they?
According to a new analysis, the single defective [Medtronic Sprint Fidelis defibrillator lead] is costing Medicare up to one billion dollars in additional claims as a direct result of Medtronic enjoying immunity from the Supreme Court decision in Riegel v. Medtronic.
There’s an old saying, “garbage in, garbage out.” If you use a false premise to substantiate an argument then the result will be worthless. And that is exactly what University of Chicago law professor Richard A. Epstein does today in the Wall Street Journal (via PofL).
His column How Other Countries Judge Malpractice pretends to support the “reform” of problems in the medical malpractice system. But he supports his arguments with some whoppers and fallacious arguments that don’t hold water.
This is just flat out false, and every competent lawyer that tries malpractice cases for either the plaintiff or the defendant knows it. Litigants must show — at least in NY, where I practice, and where Epstein is now a visiting professor at NYU — specific deviations from care. The jury gets a special verdict to decide if the exact deviation from practice occurred. Epstein does not identify even a single jurisdiction that allows a court to commonly infer negligence from a bad outcome. Not even one.
American plaintiffs are sometimes spared the heavy burden of identifying particular acts of negligence, or of showing the precise causal connection between a negligent act and an actual injury.
Once again, Epstein misses the mark, at least in New York. For a jury must not only return a verdict regarding a specific act of negligence, but they must also find that that specific departure was a substantial cause of injury. If Epstein knows of jurisdictions that allow verdicts without showing a casual connection he should mention them. He does not.
Epstein has an impressive resume. He teaches. He writes. But nowhere in that lengthy summary of ivory tower achievements does he discuss how many juries he has picked or how many times he’s tried to convince a jury to bring back a verdict based on the silliness he propounds.
The first is jury trials, which can veer out of control and in any case introduce significant uncertainty.
Epstein’s real problem isn’t with some procedural feature, it’s with the Bill of Rights and our nation’s founders and the desire to disperse power away from power-hungry governmental types and put it in the hands of the people. And as to uncertainty with jury verdicts, an alternative system does not ameliorate that issue. Someone somewhere still has to decide the issue. And that person (or people) will come with biases.
Of course, if the lawyers didn’t fund the litigation, no one except the rich could bring a suit. Allowing others to fund the litigation when they see a cause worth fighting — and risking their own money for — is what keeps the courthouse doors open. Does he want to force those that have already been victimized by malpractice to fund the lawsuit as they also wrestle with paying the mortgage while incapacitated? That’s a great way to give immunity to those that were negligent.
Epstein trumpets the fact that in other countries there are fewer lawsuits as a result of “loser-pays.” But that just means that victims can’t afford to bring the suits and they are forced to bear the costs and burdens of the negligence of others.
I’ve never heard of discovery that didn’t have judicial oversight in the event of abuses. Epstein doesn’t provide a single reference to any jurisdiction where this allegedly occurs.
Epstein also complains about the cost of litigation. Here is one way to put the brakes on it in New York: Let interest on the judgment run from the date of the malpractice. As it stands now, interest only runs from judgment, which is usually years later. Defendants, their lawyers and the insurance companies profit by dragging the lawsuit out and running the meter. (See: No, your medical malpractice case will NOT settle fast) If they knew they would have to pay interest from the time of the malpractice, they would likely take a different view of things.
In sum, Epstein fills his opinion piece with a call for “reform” that is based on little more than unsubstantiated cliches. I expect better from someone that calls himself a law professor.