Federalism and Tort Reform

[albionmoonlight]

http://www.msnbc.msn.com/id/6789233/

Link goes to a story about Bush pushing for a national cap on damage awards in medical malpractice cases.

I've discussed this issue before and do think that something needs to be done (though an arbitrary cap on awards, while easy to digest and explain, is short-sighted, does not address the real problems, and will create problems of its own. It sounds good on the stump, but shows very little understanding of the issue).

I am not here, however, to discuss what needs to be done about rising health care costs. That can be its own thread.

I am more curious as to y'all's thoughts that a Republican administration is making this a NATIONAL as opposed to state issue.

Have the Republicans simply given up being the party for states rights? Or can someone explain to me how one can reconcile a policy move like this one with a belief in a limited federal government and local control? This proposal is way more intrusive into an area traditionally left to the states than anything that I can recall either party proposing in recent memory.

[GrantDawg]

Bush says tort reform is a key part of his plan to lower health-care costs and help the more than 40 million uninsured Americans obtain coverage. Democrats in Congress say that won’t amount to much savings, pointing to a year-old Congressional Budget Office report that said malpractice costs amount to only about 2 percent of overall health care spending. I can believe that. This has nothing to do with lowering health care cost.

[Franklinnoble]

Are there any states that presently have a cap on damages?

Just wondering...

[GrantDawg]

Are there any states that presently have a cap on damages?

Just wondering...
23, I think the article said.

[albionmoonlight]

Are there any states that presently have a cap on damages?

Just wondering...
I'm not sure, but since this is becomming a hot button issue, there is probably info on the web (though finding an unbiased source may be a problem).

And since this is going off topic . . . what really frustrates me about this issue is that change needs to be made. And it a complex problem that requires a careful solution. With Republicans, however, sticking to this ham-fisted "damage cap" approach which won't lower health care costs at all and won't even stop the vast majority of frivilous lawsuits and with Democrats going to the wall to protect ambulance chasers' right to sue Wal Mart for ten trillion dollars on trumped up claims--nothing productive will get done.

And whatever is done or not done here--the states, not Congress, should be doing it.

[Flasch186]

I always hear the argument of the Companies are regulated and therefore caps are necessary but then I ALWAYS hear about huge companies, right now the Pharmeceutical companies are in the crosshairs, hiding shit and putting the consumers at risk. I firmly, FIRMLY, believe that only Punitive damages, or the threat of punitive damages, keep many, not all, but many companies from risking our lives or putting our safety at risk. Off the top of my head I harken back to Firestone tires and can draw lines all the way up to the Prozac crap right now. Capitalist Companies have it in their blood and in their goals to maximize their profits...this goes against the idea of protecting you and me. ALways, remember that.

[flere-imsaho]

Have the Republicans simply given up being the party for states rights? Or can someone explain to me how one can reconcile a policy move like this one with a belief in a limited federal government and local control? This proposal is way more intrusive into an area traditionally left to the states than anything that I can recall either party proposing in recent memory.

I hate to sound cynical, but I think the Republican Party is now only states' rights when it suits them. The best possible example is the continuing pressure on a national level to outlaw gay marriages. What's ironic is that they're winning that issue on a state level.

Anyway, not that it matters. I'm not sure the average voter understands the true concept of what states' rights is, especially vs. what it isn't. So the Republican Party, in their astute political way, only pull it out as a phrase when it will sound good to make a point.

[Franklinnoble]

23, I think the article said.


Ah. That's a lot. In that case, yeah, there's no need for a federal law.

[flere-imsaho]

And whatever is done or not done here--the states, not Congress, should be doing it.

I disagree. The states taking action on their own has already caused a lot of problems.

Example:

Illinois doesn't have caps. For whatever reason the Insurance Companies in the state have, over the past few years, raised malpractice insurance rates so high that doctors are leaving in droves to either retirement or other states where rates aren't so high (often coincidentally states that have passed caps).

George Bush would have you believe that the reason Insurance Companies are raising their rates so much is that they're getting hammered by evil lawyers in lawsuits, and have to raise their rates to compensate. This ignores a few crucial points:

1. "Outrageous" settlements, while fun for anecdotal reasons, aren't commonplace, and are often reduced by a judge anyway.

2. When the Insurance Companies cry about being financially drained, one could ask them to explain the somewhat dubious investment and cash-flow decisions these companies have made over the past decade, which haven't left them in a great position, financially.

3. Yet, the industry managed over $8 billion in profit last year.

A cynical person might say that the Insurance industry is simply pressuring the Republican Party to move legislation that will increase their margins, and the Republican Party is happy to do so in this instance because 1) the issue (vs. evil lawyers) is good for campaigns, 2) Insurance industry money is good for campaigns and 3) they apparently hate trial lawyers, who've had a long association with Democrats anyway.

The truly cynical person might say that the Insurance Industry's practice of raising rates outrageously in states without caps is not a financial strategy, but in fact a political one, and they're using their position in the marketplace (and they are the marketplace) to influence politics.

[Fonzie]

Well said, flere-imsaho.

[John Galt]

It always seems strange to me that caps are justified to reduce frivilous lawsuits. Caps do NOTHING to stop frivilous suits and only decrease the money obtained for genuine malpractice. Believe it or not, the system works pretty well at ensuring frivilous suits do not result in positive jury verdicts, much less outrageous damages. That isn't to say the frivilous suits don't exact a cost, but caps do nothing to cure them. The frivilous suit proceeds not to obtain a multi-million dollar verdict, but rather to obtain a cost-of-litigation settlement.

If you really want to stop frivilous suits, you need to change pleading and other procedural requirements like the PSLRA did to securities litigation. The GOP solutions to the problem are just horrible.

[I. J. Reilly]

Caps do NOTHING to stop frivilous suits and only decrease the money obtained for genuine malpractice.
I guess your screen name should have been enough for us to know that you don't believe additional legislative guidelines are the answer.

While I'm a Federalist at heart, in this case I'm not sure that state laws are the answer. The targets in these cases will be multi-national corp.'s that will surely have exposure in all fifty states. It would be easy for any lawyer to chose the most pliant state and file suit.

[McSweeny]

did anyone else read this as "trout reform"? or is it just me?

[QuikSand]

While I'm a Federalist at heart, in this case I'm not sure that state laws are the answer. The targets in these cases will be multi-national corp.'s that will surely have exposure in all fifty states. It would be easy for any lawyer to chose the most pliant state and file suit.

I don't know that's the case, Ignatius. The targets in most of these cases are not huge insurance companies, they are doctors and hospitals. It's just that the insurance companies end up footing the bill in the end. I don't think that if a New Orleans (I just assume you're from there) doc gets sued by a New Orleans patient and his attorney, that the plaintiff can shop to Vermont for a better judicial venue.

[chinaski]

How can you award someone a mere 250k for a lifetime of medical treatment? Isnt this current notion of tort reform insulting to people? If just one person is harmed to the point where a.) it was clearly a hospital mistake and b.) they will need constant care as a result of that mistake - then tort reform cannot occur. that has to be the end of the story.

[Bubba Wheels]

Same old story. Democrats are in the pockets of the trial lawyers, Republicans are in the pockets of the innsurance companies. Who really has all the money in America? (I don't mean one or two geeks that have cornered the computer software market.) Its the lawyers and insurance companies. Maybe if we could agree to truly let certain issues be decided by states, like abortion and gay rights (under penalty of death if that gets violated!) then we can cobble together a national party not in the pockets of one of the above. Just a thought.

[Flasch186]

Same old story. Democrats are in the pockets of the trial lawyers, Republicans are in the pockets of the innsurance companies. Who really has all the money in America? (I don't mean one or two geeks that have cornered the computer software market.) Its the lawyers and insurance companies. Maybe if we could agree to truly let certain issues be decided by states, like abortion and gay rights (under penalty of death if that gets violated!) then we can cobble together a national party not in the pockets of one of the above. Just a thought.


Insurance companies have not once considered lowering premiums eventhough they constantly institute new way to fight fraud (and they never will). A company does not have to settle (but they do - why? to avoid ruining their name, so perhaps their sales of a substandard products can continue) out of court if they dont choose to. Consumer protection in AMerica only comes from courts, the FDA wont do it, federal regulation wont do it, and 250k to a victim wont deter an enormous company from continuing to sell bad products or services to unsuspecting victims. This is bad, bad, bad and the slippery slope would be catastrophic IMO




EDIT : A limit to lawyers "takes" would be helpful and filter out some frivilous lawsuits....so im for that too.

[clintl]

Are there any states that presently have a cap on damages?

Just wondering...

You're living in a state that did it over a quarter of a century ago.


http://www.cnn.com/2003/ALLPOLITICS/01/16/bush.malpractice/

Bush urged lawmakers to follow the example of California, which capped damages from malpractice lawsuits more than 25 years ago, "and the law has worked," he said.

[ISiddiqui]

I love the fact that Bush said the law has worked! California has seen its insurance premiums go through the roof recently!

[stkelly52]

http://www.msnbc.msn.com/id/6789233/

Link goes to a story about Bush pushing for a national cap on damage awards in medical malpractice cases.

I've discussed this issue before and do think that something needs to be done (though an arbitrary cap on awards, while easy to digest and explain, is short-sighted, does not address the real problems, and will create problems of its own. It sounds good on the stump, but shows very little understanding of the issue).

I am not here, however, to discuss what needs to be done about rising health care costs. That can be its own thread.

I am more curious as to y'all's thoughts that a Republican administration is making this a NATIONAL as opposed to state issue.

Have the Republicans simply given up being the party for states rights? Or can someone explain to me how one can reconcile a policy move like this one with a belief in a limited federal government and local control? This proposal is way more intrusive into an area traditionally left to the states than anything that I can recall either party proposing in recent memory.My first thought to this (without being someone who is really into studing polical things like this) is that this is an issue that greatly affects interstate trade. If the tort was a bunch of people in New Jersey suing a company in New Jersey then the federal government doesn't have any reason to get involved. But once you start adding plantiffs/defendents from out of state that is where the Federal government should step in.

[Sharpieman]

http://www.msnbc.msn.com/id/6789233/

Link goes to a story about Bush pushing for a national cap on damage awards in medical malpractice cases.

I've discussed this issue before and do think that something needs to be done (though an arbitrary cap on awards, while easy to digest and explain, is short-sighted, does not address the real problems, and will create problems of its own. It sounds good on the stump, but shows very little understanding of the issue).

I am not here, however, to discuss what needs to be done about rising health care costs. That can be its own thread.

I am more curious as to y'all's thoughts that a Republican administration is making this a NATIONAL as opposed to state issue.

Have the Republicans simply given up being the party for states rights? Or can someone explain to me how one can reconcile a policy move like this one with a belief in a limited federal government and local control? This proposal is way more intrusive into an area traditionally left to the states than anything that I can recall either party proposing in recent memory.
Its interesting you mention the states rights issue because it seems to me there has been a role reversal during the Bush presidency. Democrats, who've traditionally supported federalism have taken States' sides in many issues while the Bush admin has supported federal changes in laws. A few examples, the constitutional ban on gay marriage is somewhat of a federal vs. state issue. California and maybe Mass. want to support some kind of compensation for gay and lesbian couples and California has gone as far as contemplating gay marriage itself. Another example was when Ashcroft went into California and arrested that dude who was growing medical marijuana for citzens who had cronic pain. California somewhat won that fight, the guy got off with a slap on the hand and has probably started up his growing again. If there was a Democratic president in the white house I doubt that he would go after the medical marijuana issue in California.

But anyways, I'm kind of glad this has happened, because maybe it will show people the benefits of federalism and the benefits of state rights.

[Tekneek]

I'm of the mindset that tort reform is unnecessary. I believe civil awards should be whatever a Court decides is appropriate. The job of the government should be to make sure that these avenues are available for people who have civil disputes with those they do business with (reality of malpractice is that you feel you were provided negligent service by the Doctor you contracted with, basically). Beyond that, they should back off. The market will determine who survives and who does not. People say that the Democrats are tied to the trial lawyers, but don't say that the Republicans are tied to the insurance companies.

Either way, it makes more sense to leave it to the states. The federal government has grown more powerful than ever before under George W. Bush, and these sorts of things are just another power grab.

[BrianD]

I love the fact that Bush said the law has worked! California has seen its insurance premiums go through the roof recently!

But the law has worked. There is a cap in California. :)

[albionmoonlight]

Its interesting you mention the states rights issue because it seems to me there has been a role reversal during the Bush presidency. Democrats, who've traditionally supported federalism have taken States' sides in many issues while the Bush admin has supported federal changes in laws.
For the first time in my life, the Republicans have control of the executive and legislative branches at the federal level. So they all of a sudden think that federal control is not such a bad thing. For the first time in my life, the Democrats have control of neither the executive nor the legislative branches at the federal level. So they all of a sudden think that federal control may not be such a good thing.

Academics and intellectuals may care about federalism as a concept. Politicians simply want the decisions made by the bodies that they control. If they can dress up that want in intellectual sounding language, it makes their base desire for control seem a little less naked and gross.

[Warhammer]

I love the fact that Bush said the law has worked! California has seen its insurance premiums go through the roof recently!

But how much of that is due to illegals and those with no insurance having to be covered by the hospitals. That raises the cost to those patients that have insurance. The insurance companies then raise their rates to compensate for the additional cost.

[Radii]

What I find the most interesting is that the MSNBC article is for the most part about health care lawsuits and presenting this as a healthcare issue.

The story I heard on NPR yesterday treated this as purely a tort reform issue, briefly mentioning Vioxx but not focusing on healthcare at all other than that. The story was entirely about class action lawsuits in general against any big business, and about how consumer groups feel that federal courts(where class actions would have to be brought if this passes) are much more corporation friendly as opposed to consumer friendly and that this would lessen the threat to corporations for lawsuits if they screw up, allowing them to take less safety measures b/c of a lessened fear of penalty if something goes wrong with a product.

At the time that all made perfect sense and jived with everything I know about class action lawsuits holding corporations responsible for their actions, but it's interesting to see the msnbc article go in such a totally different direction.

[Flasch186]

But how much of that is due to illegals and those with no insurance having to be covered by the hospitals. That raises the cost to those patients that have insurance. The insurance companies then raise their rates to compensate for the additional cost.


So then the gripes about caps would help lower or freeze rates is hogwash because the insurance companies will find other excuses to raise their rates.

[Leonidas]

I hate to sound cynical, but I think the Republican Party is now only states' rights when it suits them. The best possible example is the continuing pressure on a national level to outlaw gay marriages. What's ironic is that they're winning that issue on a state level.

Anyway, not that it matters. I'm not sure the average voter understands the true concept of what states' rights is, especially vs. what it isn't. So the Republican Party, in their astute political way, only pull it out as a phrase when it will sound good to make a point.

Dead on brother. The Republicans pretend to stand for certain beliefs right up until those beliefs threaten their ability to raise money and get re-elected.

Remember the days when Republicans used to scold the Democratic controlled Congress for running up huge budget deficits?

And the states rights deal. What a laugh. Roe V Wade is the ultimate States Rights judgement, yet the Republicans are all over that one. They'd just about kill the whole States Rights argument completely if they ever managed to kill Roe V Wade.

[Desnudo]

I vote for this thread title as the most likely to induce a yawning fit.

[SunDancer]

Insurance companies have not once considered lowering premiums eventhough they constantly institute new way to fight fraud (and they never will). A company does not have to settle (but they do - why? to avoid ruining their name, so perhaps their sales of a substandard products can continue) out of court if they dont choose to. Consumer protection in AMerica only comes from courts, the FDA wont do it, federal regulation wont do it, and 250k to a victim wont deter an enormous company from continuing to sell bad products or services to unsuspecting victims. This is bad, bad, bad and the slippery slope would be catastrophic IMO




EDIT : A limit to lawyers "takes" would be helpful and filter out some frivilous lawsuits....so im for that too.

What would by be a limit? I would propose maybe making plantiffs paying the expenses of the other parties if they lose. But I know that has some drawbacks.

Personally, on the healthcare reform, why is it our responsibility as taxpayers to pay for health care for those illegal immigrants who have no health insurance. If we ended that, would that help relieve anything in the costs?