Symbolism 1, Substance 0 (medical liability reform)

Wall Street Journal ^ | August 23, 2004 | WALTER OLSON

[OESY]

Guess who's suddenly saying nice things about litigation reform? None other than John Kerry. Explains his campaign Web site: "There is no question that abuses of our legal system have hurt companies and individuals who are acting responsibly." The scarcity of insurance for doctors should spur us to action: "Access to care is threatened. . . . Lawsuits should be the last, not the first, line of defense." You might almost think the Massachusetts senator had just accepted the Republican nomination....

Feeling skeptical? With reason. In the Senate, to begin with, Mr. Kerry has cast a routine vote against restrictions on suing. He's joined other Democrats in blocking (sometimes through filibusters) proposals to rein in medical malpractice, product liability, class actions, tobacco-suit fees and so on....

Then there's the suspicious nature of the timing. The Edwards pick brought both volunteer enthusiasm and favorable press coverage, but it also acted as a jolt to business and medical groups, many of which vowed to jump in off the sidelines and actively combat a ticket that would bring the Association of Trial Lawyers of America (ATLA) so close to the seat of power. By putting out a surprisingly conciliatory line on tort issues, Mr. Kerry may hope to de-energize these potentially troublesome adversaries....

"Our Plan for America" ... lists five proposals... but taken together they give Mr. Kerry's backers in Big Law no reason to feel threatened or betrayed:

• Certificates of merit

• Require non-binding mediation of malpractice claims before trial

• Rule out punitive damages for conduct that's not intentional, grossly negligent or recklessly indifferent to life

• "Three strikes and you're out" for frivolous claims

• Stick it to insurance companies

* * *

With each of these proposals, the details left blank are likely to be crucial....

[OESY]

Mr. Olson is senior fellow at the Manhattan Institute and author most recently of "The Rule of Lawyers" (St. Martin's, 2002).

[xzins]

We have discussed these same ideas on FR in the past. There are some really smart freepers in all these areas who are willing to speculate on how to fix problems. I worry at times about it giving ideas to the enemy.

In particular these 3 ideas or similar ones, in my memory, have been discussed on various threads in the past:

• Require non-binding mediation of malpractice claims before trial

• Rule out punitive damages for conduct that's not intentional, grossly negligent or recklessly indifferent to life

• "Three strikes and you're out" for frivolous claims

They were fleshed out, though. Another was doctors requiring patients to sign waivers that automatically threw any claims into an arbitration/mediation group.

[Savage Beast]

Health care will remain unaffordable to everyone until limits are placed on plaintiff's awards.

Insurance companies, doctors, hospitals, et al. cannot budget costs when blank-check awards are a real possibility.

Who ultimately pays these unlimited awards? You and I do.

[T. Jefferson]

If a law firm sues for $50 million for a coffee spill, and the judge or panel deems the case it frivolous, it can proceed with the following rules; if the law firm loses, they owe the amount they are suing for, in this case $50 million. If McDonald's or whoever loses, they lose the amount decided by the jury, or subsequent appeal amount.