Chronicling the high cost of our legal system
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Did they pave the way for the now-disgraced lawyer’s efforts to obtain lucrative securities class-action work from the state of Florida? [Sydney Freedberg, St. Petersburg Times]
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Florida’s Sugar Bowl blowout of Cincinnati (the game wasn’t even as close as its 51-25 final score, given the 37-3 third quarter lead) is a rebuke to efforts to regulate the BCS, though admittedly the US would be better off if Congress dropped its current agenda and spent 2010 in hearings and debates over the optimal means of determining the college football champion.
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A source on Capitol Hill who asks not to be identified writes:
The “tort reform” section of Senator Reid’s substitute amendment is not merely meaningless, but is actually a significant giveaway to the trial lawyers. It is essentially a 5-year, 50-million dollar grant program to encourage states to develop more plaintiff-friendly alternatives to the current medical liability system.
Section 10607 (p.344 of the Manager’s) establishes a 5-year grant program. The program is administered by the HHS Secretary (Sebelius), in consultation with a review panel. The review panel is structured to ensure that trial lawyers are amply represented, with seats specifically reserved for “patient advocates,” “attorneys with expertise in representing patients,” and “patient safety experts.”
Grantee states will merely be required to “develop an alternative to current tort litigation” that:
(A) allows for the resolution of disputes over injuries allegedly caused by health care providers or health care organizations; and
(B) promotes a reduction of health care errors by encouraging the collection and analysis of patient safety data related to disputes resolved under subparagraph (A) by organizations that engage in efforts to improve patient safety and the quality of health care.
Nothing about this language requires that the “alternative to litigation” decreases litigation costs. And many of the “patient safety” organizations who will collect data under subsection (B) will likely be trial lawyer ["consumer" or "patient-safety"] front groups…
The conditions tied to the grants ensure that the “alternative to litigation” established under the grants will, in practice, increase doctors’ liability and trial lawyers’ paydays. Most importantly, the grantee-State is required to “provide[] patients the ability to opt out of or voluntarily withdraw from participating in the alternative at any time and to pursue other options, including litigation, outside the alternative . . . .” If the plaintiff has a unilateral right, at any time, to pull out of the “alternative” and pursue litigation, then the “alternative” will only be used when the plaintiff’s lawyer believes that the “alternative” is more plaintiff-friendly than the litigation system.
The demonstration project also cannot “limit or curtail a patient’s existing legal rights, ability to file a claim in or access a State’s legal system, or otherwise abrogate a patient’s ability to file a medical malpractice claim.” This language means that damage caps and statute of limitations reforms would likely be off the table in any “alternative to litigation” established under the grants.
The closest that the bill comes to implying that these “reforms” reduce rather than increase litigation costs is by listing “encouraging the efficient resolution of disputes” and “improv[ing] access to liability insurance” among the goals that grantee-States are supposed to advance. But other goals include “increasing the availability” of dispute resolution, and “the disclosure of health care errors.”
In conclusion, Sen. Reid’s bill spends 50-million taxpayer dollars on a grant program run by trial lawyers for the benefit of trial lawyers. The money will be spent to establish “alternatives to litigation” that are even more lucrative for trial lawyers and costly for doctors than the current broken system.
More: Point of Law. And welcome Coyote, For What It’s Worth, Darleen Click/Protein Wisdom, TigerHawk, ShopFloor, Point of Law, Cultural Offering readers.
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The Progressive Policy Institute (!) criticizes a provision almost snuck into the health-care bill that would have been a windfall for trial lawyers at the expense of the rest of us. Earlier and earlier on Overlawyered, which was the first to publicize the provision.
I’ve got a new piece up at City Journal on Tuesday’s sensational Westchester County upset, in which GOP challenger Rob Astorino knocked off Andy Spano, the longtime Democratic incumbent county executive, by a convincing 58-42 percent margin. Taxes were a key issue, but so was the county’s consent to what was billed as a landmark housing-reform settlement in which it agreed to arm-twist affluent towns into accepting low-income housing. Many Westchester residents were wary of the potential consequences — and downright insulted when Spano suggested that to resist the lawsuit further would be to make the generally liberal-leaning county a “symbol of racism”.
The federally brokered settlement is itself of interest far beyond Westchester, if only as the occasion of a truly remarkable rhetorical flourish from an Obama Administration official, HUD deputy secretary Ron Sims: “It’s time to remove zip codes as a factor in the quality of life in America.” It was also hailed at once in some quarters as a model for similar legal action against other suburban jurisdictions considered guilty of not being hospitable enough to low-income housing. The Westchester voter revolt, I argue in the piece, may serve as a signal to local officials elsewhere to fight, rather than roll over, when the social engineers and their lawyers come knocking (cross-posted from Point of Law).
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Commentary’s Jennifer Rubin notices:
A friend points out a little nugget of absurdity and political mendacity in the Pelosi health-care bill. Remember Obama’s effort to try a “test” for tort reform? (We don’t actually need a test, since it has worked to lower medical malpractice coverage and help increase access to doctors in states that have tried it.) Well, Pelosi’s bill has an anti-tort-reform measure. On pages 1431-1433 of the 1990-page spellbinder, there is a financial incentive for states to try “alternative medical liability laws.” But look — you don’t get the incentive if you have a law that would “limit attorneys’ fees or impose caps on damages.”
In other words, Congress is providing a financial incentive to uncap damages. Marvelous.
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They ask about whether the GOP should get closer to the Tea Party movement; my answer is that the response of a party to a protest movement should be to coopt its legitimate grievances. More: David Kopel, Volokh.
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The hot blog topic of the moment is over the size of the crowds at yesterday’s “9/12″ Washington rallies critical of the Obama administration’s direction. As we noted back in 2004, U.S. National Park police, who are in charge of the Mall and related public spaces, used to estimate crowd sizes, but when their assessment of attendance at the Million Man March differed from that of march organizers, the organizers threatened to sue. So park police stopped putting out crowd estimates, which now seem to be left to the probably less expert D.C. fire department. Don’t we all feel better informed now?
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Next Tuesday Jacksonville-area Republican voters will vote in a primary to fill a state senate vacancy, with a leading candidate being John Thrasher, who was instrumental in helping the administration of Gov. Jeb Bush steer liability reform through the legislature in 1999. As a result, Thrasher has drawn frenetic attack ads from the state’s personal injury bar and its allies, including a group calling itself Conservative Citizens for Justice, which turns out to be led by a past president of the state’s AAJ affiliate, the Florida Justice Association. [Dan Pero, American Courthouse; Times-Union and more; Jacksonville Observer] In response, Jeb Bush has cut a TV ad for Thrasher pointedly directed at the lawyers. [Miami Herald]
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Perhaps the most buzzed-about story while I was on vacation (I’m back now) was the frank acknowledgment by former Democratic Party chairman (and former physician) Howard Dean when asked why liability reform was omitted from the health care redesign. 
From the New York Times “Prescriptions” blog:
The man then asked why tort reform was not part of any health overhaul.
Dr. Dean replied that the more items in a big bill, the more enemies it will have. “The people who wrote it did not want to take on the trial lawyers in addition to everyone else,” Dr. Dean said.
Dr. Dean also said he believed that patients should be able to bring actions against health care professionals, but they should go to arbitration. Then the case could go to trial, he said, but the arbitration verdict should be submitted as evidence. Not much reaction to that either way.
Mr. Moran [Northern Virginia Congressman Jim Moran] then apologized to the man whose identity he had questioned and added his 2 cents about why tort reform was not part of any bill. He said if it were, such a bill would have to go through the judiciary committee, which he said was one of the most partisan in Congress and would never have reported it out.
Commentary: Mark Tapscott/Examiner, Washington Times, Darrin McKinney/ATRA, Dan Pero linking Tiger Joyce/Investors Business Daily, Charles Krauthammer/FoxNews.com via Carter Wood/PoL and NRO “Corner”, Fred Barnes/Weekly Standard.
Relatedly, Philip K. Howard writes on “Stonewalling Legal Reform“, citing a Jon R. Gabel piece in the Times that rebuts a much-touted-by-trial-lawyers Congressional Budget Office report minimizing the likely cost reductions from malpractice reform. From the American Spectator Blog, “Conservative Leaders on Costly Lawsuits and Health Care Reform“. And Ramesh Ponnuru at NRO reiterates his argument that while malpractice reform is a good idea, it shouldn’t be imposed on the national level by the federal government.
More: Jim Lindgren at Volokh Conspiracy skewers an appalling report on health care “myths” which received, but did not deserve, the imprimatur of Indiana University.
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Or at least that’s the theme of a panel discussion this week from the lefty Kossack folks, claiming that card check will consign conservatives to “permanent minority” status. [ShopFloor]
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The Corzine Times, a website of the Republican Governors Association publicizing negative news stories about the politically vulnerable New Jersey governor, received a cease and desist letter from The New York Times, which so far doesn’t seem to have seen fit to include that fact for its readers, though other papers have at least blogged about it. [WaPo; USA Today]
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Point of Law