Results matching “demonstration obama”

by Ted Frank

Professor Gilles's last parenthetical confuses me. What is my "typical" objection? For that matter, who is my cohort? I always thought of myself as sui generis.

I honestly haven't paid a lot of attention to the Visa/Mastercard settlement because (1) no class member has asked for my help and (2) there are several competing class-action attorneys who have already (if clumsily) objected, and, thus, there doesn't seem to be a need for my non-profit to get involved to vindicate class members' interests, because for-profit entities with the proper incentives seem to already be on the case. But if one side or another wants to offer me a suitcase of money to consult on the litigation and possible objections as a private attorney, I'll be happy to consider the possibility and try and get permission from CCAF to do so.

Not that I think Visa/Mastercard tells us a lot about AmEx. I can think of exactly one American brick & mortar merchant with more than $100,000 in annual sales that I dealt with in the last five years that wouldn't take my Visa card, and it just went out of business. The case for Visa monopoly power is a different one than that for AmEx, where enough merchants don't do business with AmEx to show that when AmEx makes a take-it-or-leave-it offer that the merchant doesn't like, AmEx doesn't get the business. And DOJ has cried wolf often enough in the antitrust context in the Clinton and Obama administrations that a complaint over a tying arrangement doesn't have a lot of credibility with me: it's at least as likely to be the result of special-interest rent-seeking as consumer protection. In any event, that the Justice Department sued AmEx sort of undercuts the idea that we need a private class action to bring AmEx to heel.

Separately, since I've been critical of the AmEx Italian Colors litigation strategy through now, let me give credit where credit is due to Mr. Kellogg's excellent oral argument--which as Professor Gilles suggests, performed as I hoped and retreated to AmEx's stronger arguments. At oral argument, AmEx disputed the claim that it had not challenged certain factual contentions in the record. I'll note that the dispute exists without attempting to resolve the quibble, since the underlying public-policy question that I'm interested in doesn't turn on how well AmEx litigated its case in the lower courts. I do note that I've certainly been the victim of court opinions that chose to assert that I had not made an argument that I made rather than reach the questions my argument raised.

It's not clear to me why Professor Gilles is upset that a possible consequence of this argument would be dismissal of certiorari as improvidently granted; that result would very much be perceived as a victory by the array of special interests opposing the freedom to contract for arbitration clauses, leaving the broad Second Circuit exception to Concepcion intact.

Does it beg "reality to assert AmEx's arbitration clause doesn't completely preclude vindication of federal antitrust claims"? The Andy Pincus's amicus brief for the Chamber and other business entities suggests numerous ways arbitration proceedings could be aggregated to spread the costs of an expert witness (though I think their reliance on the Honda small-claims-court movement is overstated). It's just that the resulting aggregate litigation would be opt-in rather than opt-out--as it was in American courts during the first several decades of the Sherman Act. And, as Justice Breyer notes, why do we assume that the streamlined and informal procedures of arbitration require the same disastrous litigation expenses of court proceedings? There's certainly nothing in the record about that.

Professor Gilles complains that my floodgates argument isn't "rooted in reality," but my contention is hardly hypothetical: we see it in the Italian Colors case itself. As Justice Breyer noted at oral argument, plaintiffs' expert report about vindication was perfunctory, and didn't even mention arbitration. Yet it was sufficient to put American Express through what must be to date seven digits of litigation expenses, and may even eventually be successful in nullifying AmEx's contractual rights. Anyone who doesn't think it won't be easy to invest a few thousand dollars in a hired-gun expert to create a factual dispute over whether an arbitration clause makes vindication of a cause of action possible hasn't seen how little adverse consequence attaches to attorneys and parties who hire experts to make fantastic claims.

Speaking of vindication, I find it fascinating how often class action advocates speak of the importance of the class action in vindicating rights but how little they speak of vindication when it comes to the class actions themselves. Friday, I was in court watching class counsel argue that it was okay to freeze small shareholders out of a securities settlement because of the administrative expense in paying their claims; in the pending Fraley v. Facebook settlement, I expect to see class counsel argue that it is fair, reasonable, and adequate to pay the class zero cash because there are too many class members who want to be compensated. I find these arguments remarkable: if the class action has such high administrative expenses that after paying for notice and attorneys' fees, the class cannot be paid at all, why are these classes being certified under Rule 23(b)(3) in the first place? Doesn't that rule require a demonstration "that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy"? What makes a class action "superior" in the (b)(3) sense, much less the "vindication" sense, when class counsel takes the position that the class can't be compensated?

Reuters fact check - PointOfLaw Forum

An excellent Mark Hemingway Weekly Standard piece explored the intellectual dishonesty of supposedly neutral "fact-checking," which often turns into a way for reporters to insert their opinions into a contentious political debate. Recently, I noted hypocrisy in President Obama's State of the Union speech: "It is ironic that Obama is calling for a 90-day 'simple up or down' vote on judicial nominees when he is the only sitting president in American history who has voted to filibuster a judicial nomination." Reuters decided to fact-check this. Of course, a fact check that is a fact-check would be a single word long: "true." Obama is the only sitting president in American history who has voted to filibuster a judicial nomination. Even aside from a discussion of the Fortas nomination controversy that never mentions the severe ethical issues that caused him to resign from the Court entirely (instead it was the opposition of "Republicans as well as Southern Democrats"), the article is a nice demonstration of how much in the tank the media will be for Obama this year. Reuters went on at length how my analysis was "disingenuous"; after all, many presidents were never senators, so never had the opportunity to vote against cloture on a judicial nomination. Which misses the point. Obama isn't any less hypocritical if JFK or Warren Harding had also filibustered judicial nominations. But anything to discredit criticism of Obama.

Last Friday, the Department Health and Human Services announced $25 million in grant awards under its The HHS Patient Safety and Medical Liability Initiative, the Administration's attempt to neutralize the tort reform element in the campaign debates over health care. Whether it was the timing or the underwhelming nature of the announcement -- grants! to universities! -- the major news media barely noticed. California Health Line has a good summary of the thin coverage, some written in anticipation of the reports. (Earlier POL post.)

In a post at the White House blog, OMB health care advisor Dr. Ezekiel Emanuel took note of the support of the American Medical Association:

The grants were praised by J. James Rohack, M.D., the President of the American Medical Association who said "The AMA is pleased that federal medical liability reform demonstration projects are quickly moving forward, with $25 million in grants to state programs announced today."

Such effusive praise. The entire statement from Dr. Rohack is at the AMA website, "AMA-Supported Federal Medical Liability Grants Move Forward," and its most interesting point is the lack of any reference to damage caps, long an AMA priority.

Medical liability reform, the White House version - PointOfLaw Forum

Dr. Ezekiel Emanuel, a health care advisor in the Office of Management and Budget, used the White House blog to provide the Administration's rationale for the $25 million in grants awarded for patient safety and medical liability projects. (Earlier POL post.) Emanuel writes, "An Important Step on Medical Malpractice Reform":

The 20 grants awarded today by the Agency for Healthcare Research and Quality (AHRQ) are an important step in the right direction. They will fund programs that aim to reduce avoidable injuries. For instance, one program in Massachusetts aims to reduce errors in primary care physician offices, particularly concerning medications and referrals. Another in Minnesota targets patient safety around childbirth by instituting best practices at 16 hospitals statewide and determining if there is a correlation between fewer complications in childbirth and malpractice suits targeted at obstetricians. A third, in Oregon, will develop and work to implement a "safe harbor" system in which physicians who prove they adhered to evidence based guidelines are protected from frivolous lawsuits.

Many of these grants will rigorously test so-called "disclosure and early offer" interventions, which was the keystone of a 2005 medical malpractice bill proposed by then-Senators Obama and Clinton. These interventions inform injured patients and families promptly and make efforts to provide prompt and fair compensation.

Philip K. Howard, head of the legal reform group Common Good, issued a statement following Secretary Kathleen Sebelius announcement of the grant awards. Howard said:

While some of these projects might improve the process when patients are injured by medical error, none of them protects doctors from lawsuits where there were no errors. This unreliability drives defensive medicine. The Department of Health and Human Services is avoiding the reality that a new reliable system of medical justice is needed to end defensive medicine, a practice which contributes to the unsustainable growth in health care costs. The trial lawyers, a major contributor to Congressional campaign coffers, are the only beneficiary of the current system, and Washington appears unwilling to take them on, especially in an election year. We'll see in the fall elections if voters are still happy to have special interests put ahead of the public interest.

We tend to think the primary reason for the grants is a political one. During the general election campaign, if a challenger charges, "Congress and the Administration just ignored tort reform in the health care debate," the incumbent can say, "That's not true. The Administration right now is examining what works and what doesn't..."

Background ...

UPDATE (12:55 p.m.): We should note that Common Good advocates creation of "health courts" to handle medical liability cases. Other groups like the American Tort Reform Association hold up caps on non-economic damages as more a direct reform, already proven successful in Texas and other states.

From the Department of Health and Human Services, a news release announcing the HHS Patient Safety and Medical Liability initiative.

The Department of Health & Human Services' (HHS's) Agency for Healthcare Research and Quality (AHRQ) ) today announced grants to support efforts by States and health systems to implement and evaluate patient safety approaches and medical liability reforms. The demonstration and planning grants are part of the patient safety and medical liability initiative that President Obama announced during a September 9, 2009, address to a joint session of Congress.

The Wall Street Journal previewed the announcement, "U.S. to Begin Handing out Grants to Reduce Medical Malpractice Suits."

Overall funding for the initiative is $25 million, with $23 million allocated to grants and $2 million for the final evaluation contract. The three funding areas:

  • Grants to jump-start and evaluate efforts. Three-year grants of up to $3 million to States and health systems for implementation and evaluation of patient safety and medical liability demonstrations.
  • Planning grants. One year grants of up to $300,000 to States and health systems in order to plan to implement and evaluate patient safety and medical liability demonstrations.
  • Review of existing initiatives. In December 2009, AHRQ issued a review of reforms to the medical liability system and their impact on health care quality, patient safety, and medical liability claims.

Here's the list of awards for the demonstration grants, and this is the list of planning grants. From just a quick read of the limited materials that are available, the emphasis appears to be on making more information available for patients and encouraging communication with medical personnel on the theory this will reduce litigation. For example, from the demonstration grants:


President Obama's signing of the health care legislation into law has liberated the trial lawyers lobby to take credit for all the reforms it blocked. In a March 26 message to members of the American Association for Justice, AAJ President Anthony Tarricone takes a victory lap, hailing the AAJ's strategy of recasting (misrepresenting, in our view) medical liability reform as an attack on patient safety.

Tarricone states: "I am very pleased to report that the health care bill is clear of any provisions that would limit an injured patient's rights concerning medical negligence claims. While there is a provision for demonstration projects, it provides an absolute opt-out clause for plaintiffs at any time. While some states may embark on demonstration programs we find objectionable, the opt-out provision for plaintiffs minimizes this concern."

President Obama claimed the demonstration projects showed his willingness to compromise with Republicans on tort reform. But since the projects never really contemplated a serious attempt to fix liability laws, it was always an empty claim.

Tarricone lists the AAJ's victories, calling them "highlights of AAJ's efforts and the obstacles we overcame":

  • In the House, AAJ defeated tort reform amendments that were offered in all three committees that amended the original bill.

  • As the House voted on the health care bill in October, AAJ defeated the GOP's malpractice cap "motion to recommit," the only opportunity they had to kill the entire bill. Former AAJ Board Member, Rep. Bruce Braley, deserves special recognition for speaking in opposition to the motion amidst a vitriolic attack against trial lawyers.

  • In the Senate, 28 tort reform amendments were defeated in the two committees that marked up the bill.

  • On the Senate floor, AAJ decisively defeated a cap on attorney's fees by a bipartisan 32-66 vote. Many of you spent the weekend emailing and calling your members of Congress.

  • AAJ unveiled one of its largest media campaigns ever - - to educate the public and lawmakers about the 98,000 deaths that occur every year from preventable medical errors.

  • In addition to print, radio and online advertising, AAJ bought all the billboard space in the Union Station subway for the month of December, specifically targeting Senate staffers who use that station for their daily commute.

  • AAJ staff, officers, and members did hundreds of interviews and letters to the editor submissions, reaching print and broadcast outlets nationwide. Thousands of messages were sent to members of Congress through AAJ's grassroots portal.

For all that activity, the lobbying and PR campaign by the trial lawyers received relatively little news coverage.

Before the Blair House confab on health care and then in a March 3 letter to members of Congress, President Obama made much of his acceptance of Republican ideas on health care reform, such as medical liability reform. The President's "compromise" was to express a willingness to support a $50 million appropriation for state demonstration projects on patient safety and medical liability, language contained as an authorization in the Senate bill.

The Congressional Budget Office on Thursday issued its analysis of the $940 billion House reconciliation package, H.R. 4872, Reconciliation Act of 2010. The charts cover estimated direct effects on spending and revenues.

On page 18 there is an indeed a reference to "State Demonstration Programs: Alternatives to Litigation." Total revenue and spending effects over the 10 years of the bill: $0.

Neither is there any reference to medical liability in the House bill text nor the supplemental materials.

(See below for the additional materials supplied the House majority leader.)

President Obama, speaking to House Republicans at their policy retreat in Baltimore Friday:

From the start, I sought out and supported ideas from Republicans. I even talked about an issue which has been a holy grail for a lot of you, which was tort reform, and said that I'd be willing to work together as part of a comprehensive package to deal with it. I just didn't get a lot of nibbles.

Beyond talking, the Administration's nod to medical liability reform is a Health and Human Services program of demonstration grants to states, the Patient Safety and Medical Liability Reform Demonstration announced Sept. 17, 2009. (Presidential memo, and White House fact sheet.)

HHS's Agency for Healthcare Research and Quality (AHRQ) is running the $25 million grant program. The panel called to provide input on the process, the Patient Safety and Medical Liability Reform National Advisory Council Subcommittee, held a little-reported meeting on Oct. 26, and the deadline for submitting grants was Jan. 20.

Is this a serious effort to bring exorbitant legal costs of medical care under control? Reading through the online materials, we find this, "Clarification and Update Notice for AHRQ Medical Malpractice Funding Opportunity Announcements (FOAs): RFA-HS-10-021 and RFA-HS-10-022":

The Research Objectives Section in both FOAs currently provide background information and descriptions in the areas of 1) Patient Safety and Risk Management and 2) Medical Liability. This Notice clarifies that AHRQ requires all applications for both of these FOAs to address both of these two areas in order to be responsive to the FOAs. Applications that do not address both patient safety/risk management and medical liability will not be considered responsive, and will not be reviewed by AHRQ.

So don't bother making straight-forward tort reform proposals like limiting non-economic damages.

AHRQ says peer review will take about four months, with the grants to follow four months later. That schedule puts us into the early fall, i.e., campaign season, and will give candidates an opportunity to say things like, "The Administration actually proposed health care tort reform."

(Hat tip for the President's statement, Philip Klein.)

Around the web, January 18 - PointOfLaw Forum

  • Massachusetts Senate race could give Republicans the added vote they need to block EFCA [Cal Labor Law] New poll shows union members opposing card check [Workforce Fairness Institute via Eric B. Meyer]
  • ObamaCare demonstration projects: "Oregon Seeks $300,000 Tort Reform Grant" [Lund Report]
  • Employers advised to make staff "sign and acknowledge receipt" of not-so-favorable performance reviews [Schwartz]
  • Any and all tactics? Website of Center for Justice and Democracy offers "kudos" for disruption of Detroit Auto Show [Pop Tort]
  • Market for directors' and officers' insurance on the rise in Europe as lawsuit risks mount [Kevin Lacroix]
  • Kirk Hartley of the Global Tort blog, a key stop for coverage of asbestos and bankruptcy issues, is switching law firms.

The Obama White House puts to use the website -- its blog -- to rebuke columnist Charles Krauthammer by name for Krauthammer's column, "Kill the bills. Do health reform right." Krauthammer's case included an argument for step-by-step measures, starting with tort reform:

This is money -- the low-end estimate is about half a trillion per decade -- wasted in two ways. Part is simply hemorrhaged into the legal system to benefit a few jackpot lawsuit winners and an army of extravagantly rich malpractice lawyers such as John Edwards....[snip]

In the 4,000-plus pages of the two bills, there is no tort reform. Indeed, the House bill actually penalizes states that dare "limit attorneys' fees or impose caps on damages." Why? Because, as Howard Dean has openly acknowledged, Democrats don't want "to take on the trial lawyers." What he didn't say -- he didn't need to -- is that they give millions to the Democrats for precisely this kind of protection.

The White House's incoming communications director, Dan Pfeiffer, responds in a blog post, "Reality Check: Column Ignores Facts about Health Reform." On tort reform, he writes:

President Obama issued a Presidential Memorandum directing the Secretary of HHS to move forward with an initiative to give states and health systems the opportunity to apply for medical liability demonstration projects. Section 2531 of the House bill also includes a voluntary state incentive grants program to encourage states to develop alternatives to traditional malpractice litigation.

Yep. And the Senate bill includes a "sense of the Senate" statement expressing some support for state demonstration projects. The legislative provisions and the Administration's $25 million HHS grant program are the bare minimum needed to claim, "There is TOO tort reform in there."

Not that they support it.

White House announces med-mal demonstration grants - PointOfLaw Forum

The White House today announced a $25 million grant program to fund demonstration projects on alternatives to the current system of medical liability. In a memorandum to the Secretary of Health and Human Services, he wrote:

In 1999, the Congress authorized the Agency for Healthcare Research and Quality, which is located within the Department of Health and Human Services, to support demonstration projects and to evaluate the effectiveness of projects regarding all aspects of health care, including medical liability. I hereby request that you announce, within 30 days of this memorandum, that the Department will make available demonstration grants to States, localities, and health systems for the development, implementation, and evaluation of alternatives to our current medical liability system, consistent with the goals and core commitments outlined above.

The Boston Globe has the background memo laying out the framework for the studies and reporting the AAJ's response.

It's a more formal and timely proposal than we had expected from the White House while serving the same political strategy -- kicking serious efforts toward medical tort reform a year or more down the road.

UPDATE (4:25 p.m.): Secretary Sebelius comments at the daily White House press briefing today. Robert Gibbs jumps in, too, disputing support of trial lawyers for Obama candidacy.

"Obama's Medical-Malpractice Opportunity" - PointOfLaw Forum

"In his speech tonight, the president shouldn't forget tort reform." (John Avlon of the Manhattan Institute, City Journal).

P.S. Maybe he was listening. In his speech tonight, Obama made a non-trivial gesture toward critics' views on the subject, acknowledging that defensive medicine drives up costs and "prompting an eruption of applause from Republicans at Wednesday's joint session of Congress." [UPI]. From the same article:

"I know that the (George W.) Bush administration considered authorizing demonstration projects in individual states to test these issues," Obama said. "It's a good idea, and I am directing my Secretary of Health and Human Services (Kathleen Sebelius) to move forward on this initiative."

On the politics of the gesture, see Jake Tapper/ABC, news-side WSJ.

Some reactions: Dr. Wes notices language recycled from the med-mal plan championed earlier by then-Sen. Obama and Sen. Hillary Clinton (D-N.Y.) My reaction? I think trying a bunch of demonstration projects to see how they work is actually one of the better reform ideas at the federal level, but obviously a great deal depends on how the demonstration projects are picked and designed. Projects might be selected from a list of ideas pre-vetted for acceptability to the litigation lobby, or at worst might even be designed to fail. I agree with Ron Miller: when it comes to actual policy, "Let's just say President Obama is keeping his options open." (bumped Thurs. a.m.)

And more: okay, maybe I gave the President too much credit above on having acknowledged the costs of defensive medicine: his exact wording was "defensive medicine may be contributing to unnecessary costs" (emphasis added). Ramesh Ponnuru: "A demonstration project for med-mal reform -- don't we already have one, called Texas?" Carter Wood notes that demonstration projects on med-mal reform have been shot down by Congressional Democrats in recent years. Dan Pero calls the gesture an "olive twig".