The Conservative Case Against Tort Reform
Ken Connor makes the “law and justice” case for conservatives to stray away from tort reform and make sure that it stays on the level of the states:
The truth is that corporate moguls push for tort reform because they have little use for a civil justice system that puts the little guy on the same plane as the rich and powerful. These so-called fiscal conservatives don’t like equal justice. They want preferential treatment—something they are accustomed to getting from politicians because of their hefty campaign contributions.
Conservatives need to educate themselves about the importance of a civil justice system that protects everyone and treats all litigants—rich and poor alike—as equals before the law. Furthermore, true conservatives ought to resist attempts to federalize tort law and impose one-size-fits-all solutions to “problems” that are, in large part, the fictional creations of special interest lobbyists seeking to enrich the coffers of their wealthy clients. Any change in medical malpractice laws should occur at the state level and be tailored to meet conditions in the individual states. The people in Topeka may approach the same problem differently from the folks in Tallahassee. They may be experiencing different problems, or perhaps, none at all. In any event, the residents of Attapulgus, Georgia don’t want Chuck Schumer and Olympia Snow dictating the remedy they can pursue when a doctor leaves a pair of scissors in the site of their incision or causes avoidable brain damage to their newborn.
Tort reform subsidizes wrongdoing by shielding wrongdoers from accountability for the consequences of their misconduct. It is an affirmative action program for corporate miscreants. Incorporating tort reform into health care reform will do nothing to cut medical costs. It is, however, guaranteed to result in more, not fewer, cases of medical malpractice. Furthermore, federalizing tort laws will only result in the accretion of more power in the hands of the central government and the emasculation of the rights of states and individuals.
Thanks for sharing this.
Please note that this outstanding gentleman’s name is Ken Connor, no “s” at the end. He is a dear, personal friend of mine who I once practiced law with and who has, among other things, formerly headed up the (fantastic) Family Research Council.
Once again, Ken is absolutely, unequivocally spot-on.
I am for reasonable tort reform, if there is abuse, at the individual state level. Each state can handle this just fine on their own, and if the cure proves worse than the disease (so to speak) it is that much easier to deal with it.
The feds should stay out of it. And while I get many conservatives feel tort cases are a problem, the best place to address that is at home in your own state first.
Sorry JL, we part ways on this. I’ve been involved personally on both ends of civil suits. The system is broken and the fox is in charge of guarding the hen house – nothing personal.
“Incorporating tort reform into health care reform will do nothing to cut medical costs.”
That has to be one of the most ill-informed and wrong-headed statements I’ve ever read. Malpractice premiums, the practice of “protective medicine” are having a heavy impact on costs. Of course, state mandates and too much govt. involvement are also problems.
I am, however, sympathetic to leaving it to the states, but it is a HUGE problem.
JL: thanks for the correction on my typo. I, too, know Ken. I should have caught it!
The thrust of Ken’s argument is to leave it to the states. Let me ask: if congress finally and legitimately uses the commerce clause and the barriers between purchasing health insurance across state lines are dropped, will this prompt states to reform their tort systems lest they loose insurance business to neighboring states? Thinking out loud here…
No worries Davy, no need to apologize either. I’d worry if we agreed on every, single thing.
In my many years of practice, I too have represented plaintiffs (along with Ken) and also spent years on the defense side of things, representing, among other entities, insurance companies, employers and “mom-and-pop” businesses/practices. In so doing, I feel I’ve developed a good sense of both aspects of litigation.
While I may not necessarily harbor the identical, precise sentiment as that single sentence quoted above, I am in agreement with Ken that efforts to incorporate tort reform, particularly at a Federal level, into health care reform will have very little impact and, certainly, not at all the level of lowered health-care costs some suggest. I believe that any nominal reduction to the costs of health care that *might* be achieved by tort reform, would be drastically outweighed nad offset by the loss of rights (of ability/potential to recover, amount of recovery, etc.) of the individual/patient/victim/potential litigant/what-have-you.
I just do not agree that (med)malpractice cases are driving up the costs of health care to those levels claimed, anymore than massive strict-liability verdicts, catastrophic p.i. verdicts and the like are driving up costs in their respective industries.
Again, overall, in his point and premise, I think Ken nailed it.
Thanks again to Mr. Hurtado for sharing Ken’s work.
I am all for reasonable protections for medical providers (because most doctors are excellent and the sad fact is many patiets will die and mistakes happen that should not automatically be deem liable) in the civil context and getting rid of punitives and excessive judgments except in the most eggregious of cases, but I also recognize that medical boards have to do a better job policing their own. There are a lot of repeat offenders out there who should not be practicing medicine.
These arguments should work at the state level nationwide (and the dirty secret is there is tort abuse in both blue and red states). For example, California and Texas took steps to address this issue. Why can’t other states follow their example?
AH –
I think you are correct in your assessment of Ken’s overall point; that, ultimately, if tort reform of some manner is to be implemented, leave it to the states to decide what is an appropriate measure of reform for themselves. I agree with that point as well, just, as I stated in my previous comment, I believe that tort-reform, as it is being discussed, will not have the substantial impact many claim.
And yw in re the typo – it happens all too often with Ken!
“Incorporating tort reform into health care reform will do nothing to cut medical costs.”
That has to be one of the most ill-informed and wrong-headed statements I’ve ever read. Malpractice premiums, the practice of “protective medicine” are having a heavy impact on costs. Of course, state mandates and too much govt. involvement are also problems.
Have we actually seen medical costs go down in states that have instituted tort reform? It doesn’t seem to have happened in Texas (the state with which I am most familiar), which instituted the reform conservatives generally favor: capping damages.
http://www.newyorker.com/reporting/2009/06/01/090601fa_fact_gawande
Also, what does Mr. Connor think of the White House proposal to allocate $25 million in grants to the states for them to pursue pilot projects on reducing the impact of medical liability on health care costs? Still too much federal interference, or the appropriate level of intervention for the federal government to encourage experimentation in the laboratories of the states?
The grants could create an incentive in state governments that are influenced by the plaintiff attorneys’ lobby to actually attempt reform, if only for the sake of not leaving federal funds on the table.
If I were a conspiracy theorist, I’d have reason to pause over the fact that my two of my prior posts within this commentary have vanished and/or not been posted.
Outside of their amazing wit and profoundness, among other things, I told Davy that if we were to always agree, then I’d be worried.
Jacksonian Lawyer: FWIW – I had some difficulty earlier today editing a post so there may be a technical problem. Petigru’s Ghost
JacksonianLawyer,
The spam filter is setting yours to be moderated (that is, an admin, like yours truly, has to approve them before they show up). That’s probably due to you posting a lot of comments in a relatively brief amount of time. Hopefully, the system will “learn” not to flag yours as requiring moderation.
Petrigu’s Ghost,
Mind shooting me an e-mail on what difficulty you had?
Corporations aren’t our God either. Surely we shouldn’t trust them any more than we trust government.
Corporations prefer civil suits, which are only money, over having their executives tried in criminal courts for their bad faith—negligent homicide? Depraved indifference?—when their policies result in human tragedies.
So in the meantime, civil suits are the only means of justice available.
I agree with Alberto, if I follow his meaning. This is something that’s not talked about much, and we the American people need to discuss it. “Greedy lawyers” is a straw man, scapegoats.
If we want health care delivered by non-government means, they need a chack-and-balance too.