// ]]>

Even Tort Reform Proponents Oppose National Texas-Style Law

On September 12, Texas Governor Rick Perry called for federal tort reform during the GOP Presidential debate. "You want to talk about some powerful job creation, tell the trial lawyers to get out of your state and to quit costing businessmen and women. That's what needs to happen in the states. and it's also what needs to happen at the federal level, passing federal tort reform at those federal levels." As I wrote on September 17, Gov. Perry now stands against some of the most respected Tea Party-side and conservative legal experts in America, who have written that a federal tort reform law is as unconstitutional as ObamaCare, and for the same reasons. But Gov. Perry also ignored two of the leadingproponents of tort reform, who conceded months ago that a Texas-style national limit on medical malpractice lawsuits is clearly unconstitutional.

Walter Olson of the Cato Institute has been dubbed the "intellectual guru of tort reform." He was previously a senior fellow at the Manhattan Institute, and his writing appears regularly in all of the major newspapers and networks. But on May 24, Mr. Olson wrote that conservative and anti-ObamaCare Professor Randy Barnett of the Georgetown University law Center was right in stating that tort law is strictly a state power and not subject to federal oversight. A short segment of his concession post: "Thanks to star libertarian lawprof and Cato senior fellow Randy Barnett for pointing out something that has needed saying for a while: most proposals in the U.S. Congress to address medical malpractice law run into serious federalism problems. Most medical malpractice suits go forward in state courts under state law. If the U.S. Congress wishes to impose a nationwide rule on these suits, such as by limiting damages for pain and suffering, it first needs to answer the question: under which of the federal government's constitutionally prescribed powers is it acting? Even if it can identify such authority, it should also ask: is it a wise idea--consistent with what one might call a prudential federalism--to gather yet more power in Washington at the expense of the states? Unfortunately, the backers of the current federal med-mal bill have chosen to rely on the Supreme Court's very expansive "substantial effects" doctrine..."

Ted Frank, Adjunct Fellow with the Center for Legal Policy at the M..., is described by the Wall Street Journal as a "leading tort-reform advocate." He's also the Editor of the pro-tort reform Point of Law blog; president of the Center for Class Action Fairness; has written for law reviews and numerous media outlets; and has testified before Congress multiple times. Mr. Frank is one of the chief theorists and spokepersons for the pro-tort reform movement. But also on May 24, Ted Frank conceded that Prof. Barnett and another conservative and anti-ObamaCare Professor, Ilya Somin of the George Mason University School of Law, were correct in their criticism of a federal tort reform law. Mr. Frank's quote: "It's easy enough for Congress to condition portions of Medicare block grants on a state establishing reasonable medical-malpractice litigation guidelines, or for Congress to prohibit certain types of lawsuits over federally-funded medical care. It doesn't need to impermissibly federalize all medical malpractice litigation to accomplish reform."

So the "intellectual guru of tort reform" says that a national, one-size-fits-all law killing medmal lawsuits would have "serious federalism problems," while "a leading tort-reform advocate" says a Texas-style federal medmal law is "impermissible." Between them and the five conservative legal experts, such as Randy Barnett, it looks like the case is closed.

Is Rick Perry listening? Maybe we'll find out during the next GOP Presidential debate on Thursday. Personally, I'm not optimistic, since he ignored the writings of the five conservative legal experts and two pro-tort reform experts on the Internet months before he went nuclear on the subject.

Comment

You need to be a member of Tea Party Nation to add comments!

Join Tea Party Nation

Comment by CoChair on September 24, 2011 at 1:28pm: Although being a Perry supporter I think he went overboad on some Federal Tort reform, it would only be administerd in federal courts. However, in th past 3 weeks, I've interviewed two trial layers and one judge for an open District Judge seat, each of these indiviuals said our Tort Reform legislation has certainly deterred alot of trivial suits and that our last legislature strenghtened it by adding "Looser Pays". This is a "States Right" issue but one that should be inacted in every state. Texas has become very friendly for practicing doctors.

Comment by Kristin Fecteau on September 23, 2011 at 5:42pm: Willard, I notice you say "you BELIEVE" the reason is lawsuits. Where is your proof?

Comment by Willard A. Flippin on September 22, 2011 at 6:59pm: I believe that the largest reason for the high cost of medical insurance and medical costs are the number of frivolous lawsuits undertaken against doctors and hospitals. This nation has become "suit" happy. Although there are a number of legitimate complaints, these should have a certain cap placed on the amount that can be awarded. Is it appropriate for a family to receive two hundred million dollars because the breadwinner died under questionable circumstances while in the care of a doctor?

If a person is permanently disabled and has to be cared for in a special facility for the remainder of his life because of medical malpractice, then his family should be compensated for his loss of potential income,his total care, and a reasonable settlement for his family's loss. But even this scenario should have a limit placed on it.

Perhaps national tort reform is unconstitutional, possibly then states should be encouraged to adopt such reform. There could be a free market solution. States that refuse to pass such reforms could face high premium increases from insurance carriers. That would certainly inspire true change.

Comment by Kristin Fecteau on September 22, 2011 at 2:39pm: anyone who thinks medical malpractice is the cost of high healthcare, please post your proof, or are you just parroting what you've been told? The reason health care is so high is because consumers are not involved in paying or watching the costs, because it's "paid for" and they don't care if an MRI or CAT scan costs, $5000 or $1000, they are not paying for it.

Comment by Dorothy Delisle on September 22, 2011 at 2:09pm: I don't know what all this fuss is abut.First of all We the People wanted Tort reform,now Texas has it. Do not look for the perfect cab\ndidate. He does not exist.I believe Rick Perry is on the right travk. Lets remember this is OUR COUNTRY we are talking about. I am for saving it from a Marxist regime.I am for abolishing Obamacare. I am for revoking all the regulations of the past 4or 5 years that has stopped job creation.I could go on,but I am sure you get the picture.

Tort reform is one of many reasons healthcare costs so much.

We had all better start attacking obama and not each other or this country is DOOMED

Comment by Kristin Fecteau on September 22, 2011 at 1:23pm: Medical malpractice cases are the only ones touched by so-called "tort reform," so all y'all crying out hot coffee and pants at the cleaners don't know what you are talking about. Second, malpractice cases are nearly always STATE claims, and the Feds have no jurisdiction over what happens in a state claim, so if you are a TRUE conservative you MUST be consistent and say "no unconstitutional Federal intrusion into what the States are doing." Why are only doctors limited in how much they pay for their negligence, which ruins human lives by injuring people? Also, most "ambulance chasing" attorneys do not to medical malpractice, they do car wrecks and slip n' fall cases, as Med Mal cases are extremely complex, difficult, and exorbitantly expensive to prosecute. Furthermore, why would you want further intrusion from the Fed into your State, if your State has already passed medical malpractice reform, as Texas, Florida and Tennessee have? Did you know in Tennessee you MUST consult with and hire a doctor to say your case has merit BEFORE you can file it? Now what do you say about someone who has been hurt having a "frivolous" case? Why a random cap on damages then? Why not let a jury of 12, who hears all the facts in the case, decide how much to award, like we do on ALL other cases? In addition, in Tennessee, if a jury "goes wild" with a verdict, a judge has the power to reduce the verdict himself. There are already MANY checks and balances. Be a TRUE conservative and think about what you are arguing for when you want Big Daddy to tell your state how to handle medical malpractice.

Comment by Andrew Cochran on September 22, 2011 at 9:54am: Thank you for your comments to date. A couple of brief responses while I wait for a business meeting to start: Of the seven experts I quote in this and the linked post, not only are none employed by the ANA, but none of them are trial lawyers and none of them work for trial lawyers. ALL of themthe believe thatit ObamaCare is unconstitutional, and two of them worked in the court cases attacking ObamaCare as unconstitutional. If and when the Supreme Court hears the multistate case against ObamaCare, Randy Barnett will probably be among the counsels sitting there urging the Supremes to declare it unconstitutional, and he says that federal tort reform laws limiting suits filed in federal or state courts are also unconstitutional. I'll return to discuss the Texas state constitution later, it's a good question worthy of discussion. For the person who wrote, "A woman buys a cup of HOT coffee and spills it on herself, then gets awarded over a Million dollars, give me a break," the facts of that case are more complex and deserving of another post.

Comment by Douglas W. Dragert on September 22, 2011 at 9:18am: If we read medical statistics we find that your doctor is more likely to kill you than a car wreck or a terrorist. Doctors have set themselves as "gods". Due to their own inabilities and wrong guesses someone dies. Who's supposed to hold the bag for that?

Comment by Scott Casteel on September 22, 2011 at 8:15am: the consumer pays for the high costs of malpractise insurance that doctors and hospitals get charged. if the patient is a welfare receipient or on the dole in one of the other socialist programs we have in this country, then We The People pay for it. there needs to be limits on every type of suit filed. negotiations with insurance companies to lower rates if caps are established should be on the table at the same time though. case in point- we were all told to go along with seatbelt laws and our ins. rates would be reduced.... Lies

Comment by Brenda Choate on September 22, 2011 at 8:03am: Tort reform should be a state-by-state issue. The run away lawsuits have put many physicians out of business, especially the OB/GYN doctors. Tort reform would do much for the medical profession, but the legal profession would suffer. No longer could they ambulance chase, looking for a profitable lawsuits. Texas's tort reform dealt with the amount of pain and sufferring awards. It is quite rediculous to award someone millons of dollars for supposed injury which far exceeds the amount they could have earned in a lifetime of work. Medical lawsuits are two parts; the actual damages and the pain and suffering. It was the second part that is being abused by the legal profession. The bigger the settlement the more money in their pocket.

‹ Previous
1
2
3
Next ›