Personal Injury Law

Medical Malpractice Tort Reform and Obama's Health Care Plan

Real Clear Politics has a blog post suggesting that the Democrats are going to flip at the last minute on medical malpractice tort reform to save President Obama's health care bill.

The theory on which this premise rests is that the only real obstacle for Democrats to malpractice tort reform is that Democrats do not want to offend trial lawyers.

I think the premise fails for reasons I'll get to in a minute. But let's play along for a minute and assume this is true.

The author's theory is that trial lawyers will not abandon Democrats because they have nowhere else to go. He writes: "As a trial lawyer friend admitted to me, 'I hate to lose medical malpractice, but there's a whole lot of suing to do out there that has nothing to do with doctors.'"

This argument fails because a party's base always has somewhere to go: home. Trial lawyers are not going to put their significant economic support behind candidates who support malpractice tort reform, and the doctors' lobbyists are still going to stay home and support the GOP. But trial lawyers might support defecting Democrats' opponents in the primaries.

More importantly, losing the money and the passions of trial lawyers would be a meaningful loss to Democrats, even if they have nowhere to go. Republicans learned this lesson when the Republicans who are just in it for the money triumphed over the conservative Republicans whose primary concern is social issues. Sure the social issue Republicans voted for McCain over Obama because they too had "nowhere to go." But they didn't put their hearts and their wallets into it, even with Sarah Palin on the ticket.

As I mentioned earlier, I don't agree with the view from the cynical seats, because I think Democrats care about the minority of people that are being treated unfairly. Isn't this what health care reform is about, insuring many people who don't have a voice? Medical malpractice victims also don't have a voice, and deep pocket medical malpractice lawyers do speak for them, regardless of the true motives of at least some malpractice lawyers.

So I think most Democrats have a problem with malpractice tort reform because it hurts people that need the civil justice system the most and because of that pesky little thing call the Seventh Amendment that everyone has forgotten about in this debate. But I'm also not going to pretend that the millions that trial lawyers give to candidates every year is not a factor in the calculus for some Democrats who are sitting on the fence.

(Note: The Real Clear Politics post is confusing to the extent that it says "we're talking a cap on punitive damages" and not meaningful tort reform, but also writes that Democrats have to "put some skin in the healthcare reform game and accept caps on pain and suffering malpractice awards." I think he means the latter and is using punitive damages synonymously with pain and suffering damages.)

Full post as published by Maryland Injury Lawyer Blog on August 20, 2009 (boomark / email).