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August 24, 2004
Kerry on med-mal: symbolism over substance
For those who missed it, our editor Walter Olson had an opinion piece in yesterday's Wall Street Journal examining Democratic presidential nominee John Kerry's recent proposal on medical malpractice reform. Walter notes that it makes sense to "feel skeptical" about Kerry's proposal, since in the Senate 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."
Kerry has pitched his idea on the stump by noting that trial attorney John Edwards might actually be able to persuade trial lawyers to accept changes, much as "only Nixon could go to China." Our editor's column pokes holes in this analogy and points out that any conclusion that Kerry might effect a significant reform contrary to lawyers' interests requires assuming that those same lawyers are "being foolish to sign the checks" that have so dramatically financed the Edwards and Kerry campaigns.
Olson then addresses each point in Kerry's proposal, one-by-one, finding them in general to be "symbolism" over "substance":
* "Certificates of merit" requiring a "medical specialist" to approve a suit before the case proceeds is a net positive, but probably of very limited impact, as Edwards himself noted in a 1995 interview;
* "Non-binding mediation" before trial is a good idea, but the details are crucial -- past Democrat proposals have included such provisions to preempt stronger, and effective, state laws promoting alternative dispute resolution;
* Eliminating "punitive damages for conduct that's not intentional, grossly negligent or recklessly indifferent to life" is of little significance in the medical malpractice arena, for which pain and suffering, not punitive damages, escalates damage awards;
* "Three-strikes-you're-out," an Edwards favorite, is of little to no significance, given that it's almost impossible for a lawsuit to be found "frivolous" under current rules, particularly in the medical arena.
Finally, Olson's piece tackles the favorite trial lawyer/Democratic shibboleth, i.e., that the medical malpractice insurance crisis is basically caused by those big, bad insurance companies, and thus that any reform should "stick it to 'em." We've addressed that claim in this forum elsewhere, here, here, here, here, and here.
Also, contrary to the Kerry-Edwards press release claims, which recycle some discredited reports to suggest that pain and suffering caps are ineffective in reducing medical malpractice claims, see this PointOfLaw entry with a link to the recent RAND report demonstrating the efficacy of California's $250,000 MICRA cap on pain and suffering med-mal damages. See also Ted Frank's discussion of the topic of whether tort reforms affect med-mal insurance rates here and here (cross-posted from Overlawyered.com), and the links listed by our editor on Overlawyered here.
Posted by James R. Copland at 11:54 AM
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