Symbolism 1, Substance 0
August 23, 2004
By Walter Olson
Guess who's suddenly saying nice things about litigation reform? None other than John Kerry. Explains his campaign Web site: "There is no question that abuses of our legal system have hurt companies and individuals who are acting responsibly." The scarcity of insurance for doctors should spur us to action: "Access to care is threatened. . . . Lawsuits should be the last, not the first, line of defense." You might almost think the Massachusetts senator had just accepted the Republican nomination.
There's more. In recent weeks John Kerry has repeatedly told audiences that he thinks he can achieve medical-liability reform much as Richard Nixon could pull off a foreign-policy opening to China -- presumably because he and his running mate have the kind of credibility with the litigation lobby that the late GOP president had among dedicated anticommunists. A Kerry adviser says doctors can hope for "meaningful but enactable" malpractice-suit relief if the senator reaches the White House.
Feeling skeptical? With reason. In the Senate, to begin with, Mr. Kerry has cast a routine vote against restrictions on suing. 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. (He did, it's true, vote to curb shareholder suits -- but even Ted Kennedy agreed on that.) "Kerry has just about a perfect record on issues that interest lawyers and trial lawyers," says prominent tort lawyer John Coale, quoted in the June 18 Legal Times. And the plaintiff's bar has responded by opening its wallets in a major way to Mr. Kerry's campaign, even before he named John Edwards as his running mate.
Then there's the suspicious nature of the timing. The Edwards pick brought both volunteer enthusiasm and favorable press coverage, but it also acted as a jolt to business and medical groups, many of which vowed to jump in off the sidelines and actively combat a ticket that would bring the Association of Trial Lawyers of America (ATLA) so close to the seat of power. By putting out a surprisingly conciliatory line on tort issues, Mr. Kerry may hope to de-energize these potentially troublesome adversaries.
There's also something odd about proclaiming a contemplated Nixon-to-China stroke to a public audience, and doing so before facing the voters rather than afterward. Nixon's overture to Peking, after all, came as a deeply unwelcome shock to some of his staunchest friends. The Californian would have been foolish to demoralize and embitter those backers at a point when their help was crucial in reaching the Oval Office. What are we to think when a candidate suggests, months before an election, that he's going to disappoint some of his biggest supporters, even as he keeps hitting them up for gobs of money? (Organizers of a July 15 fundraising event for Mr. Kerry in Philadelphia acknowledged that more than half of the $500,000 raised came from trial lawyers.) Are they being foolish to sign the checks?
Most likely not. "Our Plan for America," the Kerry/Edwards policy document, lists five proposals for addressing the medical-liability crisis. Some of the five are helpful and constructive and some the reverse, but taken together they give Mr. Kerry's backers in Big Law no reason to feel threatened or betrayed:
• Certificates of merit: Before a malpractice suit could go forward, under this idea, the lawyer would have to get a qualified medical specialist to sign off on it. Already in effect in roughly a third of the states, this proposal almost certainly does more good than harm. Its main effect seems to be to inhibit filings by amateur-hour lawyers who have little experience suing doctors but figure they'll give it a try. It does little to cramp the style of seasoned malpractice lawyers: Those with choosy case-selection standards already arrange for their cases to get a vetting beforehand, while those with laxer standards can retain rubber-stamp dial-a-medics who'll sign whatever they're asked to. (In Illinois, amazingly, the medical reviewers can even remain anonymous.) Not surprisingly, some of the states which already have certificate-of-merit laws, like Pennsylvania, are also states suffering severe malpractice crises. In a 1995 interview, Mr. Edwards himself suggested that this rule would not make much difference.
• Require non-binding mediation of malpractice claims before trial: Many such claims do respond well to mediation, which means that, depending on how the details are handled (see below), this idea is also potentially helpful.
• Rule out punitive damages for conduct that's not intentional, grossly negligent or recklessly indifferent to life: Punitive damages are a huge issue in many areas of litigation, including product liability, but not nearly so much so in suits alleging malpractice. This proposal would add little to the protections most states already afford doctors.
• "Three strikes and you're out" for frivolous claims: An Edwards favorite, this is the flashiest and also the least likely of enactment of the five ideas. Supposedly, lawyers who filed three bad suits would lose their right to sue for 10 years. Sounds like strong stuff, no? But as Mr. Edwards must be aware, the prevailing definition of "frivolous" in our courts is so narrow that very few malpractice claims currently expose the filing lawyer to a realistic threat of being sanctioned even once. For example, it's widely acknowledged that some lawyers file "shotgun" complaints against all the doctors who took part in a patient's care before sorting out later who will be the real target. Yet it's exceedingly rare for a lawyer to be hit with a successful sanctions motion over shotgun filings. In addition, relatively few malpractice suits are filed in federal court, and any third "strike" would most likely consist of a referral to state-bar disciplinary authorities who might be in no way obliged to act on it. Score for symbolism, 1; for substance, 0.
• Stick it to insurance companies: Just in case you were forgetting that this is a national Democratic ticket, there's talk of hanging insurers out to dry for the putative antitrust offense of sharing information with each other, even if the result is to make it harder for underwriters collectively to identify high-risk medical practices and sectors. Along the same lines, the document criticizes "arbitrary caps" on damage awards, arguably leaving open the door to caps that are not so arbitrary.
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With each of these proposals, the details left blank are likely to be crucial. For example, during this year's "med-mal" debate on Capitol Hill, several of the ideas above surfaced in an amendment that Rep. John Conyers put forth as a Democratic alternative to the GOP-backed reform bill. But the pleasant-sounding generalities concealed some nasty traps: The language prescribing nonbinding mediation turned out on inspection to include a kicker that would have pre-empted and invalidated all forms of alternative dispute resolution other than mediation -- including arbitration programs that work well in some states in forestalling litigation -- as well as all contractual barriers to suit.
Until we see more details on the Kerry proposals, we should resist the temptation to dismiss them as no more than an insincere feint to the center. At worst they'll turn out to be mere lip service; but lip service to an opponent's issue is itself important in electoral politics: It can signal when a fight over principle is ending and a new consensus has begun to emerge. On curbing the excesses of the American litigation system, we may be nearing the end of a national debate on whether, and moving on to a debate on how.
Mr. Olson is senior fellow at the Manhattan Institute and author most recently of "The Rule of Lawyers" (St. Martin's, 2002).
©2004 The Wall Street Journal
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