McCain v. Obama on Tort Reform

I try to keep this Blog fairly apolitical, but during an election season that can be difficult.  My feelings about so-called "tort reform" are pretty clear:  it is generally a terrible idea that only hurts the truly innocent- people who have been hurt by someone else's negligence.

That said, where do Obama and McCain stand on Tort Reform?  I've tried to present the information below from the most unbiased sources I can find.

  John McCain on Tort Reform

I've included some links from traditionally conservative voices.  The Club for Growth and an AMA related website.  Most of the information is somewhat critical of McCain for not supporting tort reform "enough."  Because of the nature of the primaries, there is plenty of information about McCain and tort reform from conservative sources (most of which didn't think he was tough enough on tort reform).

From: The Club For Growth:

 

Tort Reform

The American economy suffers from excessive litigation which increases the cost of doing business and slows economic growth. The Club for Growth supports major reforms to our tort system to restore a more just and less costly balance in tort litigation.

Senator McCain's record on tort reform is generally positive. These votes include:

• Sponsored the Class Action Fairness Act of 2005 which sought to curb lawsuits by shifting suits from state to federal courts, by requiring judges to review all coupon settlements, and by limiting attorneys' fees in non-cash settlements^[65]
• Voted for a bill that would bar lawsuits against manufacturers, distributors, dealers and importers of firearms^[66]
• Voted for a bill that would place caps on damage awards in medical malpractice suits against obstetricians and gynecologists^[67]
• Voted for a motion to proceed to a bill that would cap non-economic and punitive damages in medical malpractice suits^[68]

This generally positive record, however, is tarnished by Senator McCain's sponsoring of and outspoken support for the Patients' Bill of Rights,^[69] which encouraged an increase in the number of frivolous lawsuits filed against healthcare providers. He also voted against the Litigation Uniform Standards Act, which limited the conduct of securities class actions under state law.^[70]

And for what it is worth, here is a transcript from a Rush Limbaugh Radio Show where Rush refers to the above website in order to assess McCain's willingness to implement tort reform.  Rush seems to agree with the above- McCain has a good start but could do even better on tort reform.

If we assume that what a politician promises in one election they would support in another election, we can go back to 2000 when McCain was running against Bush in the Republican primary.  McCain's website then stated:

"John McCain has been a leading proponent of lawsuit reform at the federal level. He recently authored the Y2K law that will help limit potential frivolous lawsuits resulting from the Y2K computer problem while also protecting the rights of those truly injured to bring a legal action. The bill addresses the needs of businesses that may find themselves as both plaintiff and defendant, by providing incentives to fix Y2K problems, not rush to the courthouse.

"John McCain has and will continue to fight to reform our nation’s product liability laws. He supports reforms that would establish a time limit on liability for most products and cap damages on small businesses. He has also worked to provide liability relief to small businesses by sponsoring legislation that limits punitive damages and eliminates joint liability for non-economic damages for small businesses that employ less than 25 people.

"John McCain also supports small business relief from 'Superfund' liability. He believes the law imposes too severe a penalty on small businesses. He supports changing the regulations to limit the liability of small businesses to the amount of pollution they directly caused to a site, and no more."  From Freedom Works

Back to 2007.  From a physician website, MedPage Today:

Arizona Sen. John McCain said tort reform is a top priority. He's supported caps on awards and expressed some support for a loser-pays rule. "We cannot let the search for high-quality care be derailed by frivolous lawsuits and excessive damage awards. … Liability reforms should eliminate lawsuits for doctors [who] follow clinical guidelines and adhere to patient safety protocols."

McCain laments increased costs stemming from defensive medicine. "In every other industry when technological advances are implemented, costs to the consumer decreases," he told supporters in South Carolina. "This is not the case in health care. … I can't tell you the number of tests that all of us in this room have taken just so that doctors won't be sued for malpractice."

And while this is not necessarily a "tort reform" issue, McCain supports changes to our health care system which would take most self-funded health insurance plans OUT of ERISA pre-emption.

The senator does suggest he would change current pre-emption provisions in the Employee Retirement Income Security Act, when he says he would "give states the flexibility to, and encourage them to experiment with: alternative forms of access; risk-adjusted payments per episode covered under Medicaid; use of private insurance in Medicaid; alternative insurance policies and insurance providers; and, different licensing schemes for medical providers."

ERISA adjustment is also implied by his call to "build genuine national markets by permitting providers to practice nationwide" and his proposal to "allow individuals to purchase health insurance nationwide, across state lines, to maximize their choices."

Obviously, in North Carolina, taking self funded health plans out of ERISA would have a "pro-plaintiff" benefit because self-insured entities would be subject to NC's anti-subrogation rule.  Clearly, this is an unintended consequence for our state.

Finally, according to AllBusiness.com, McCain has publicly lamented increased costs stemming from so called defensive medicine, where doctors allegedly over-cautiously order multiple tests in the hopes of avoiding any mistakes or liability. "In every other industry when technological advances are implemented, costs to the consumer decreases," he told supporters in South Carolina. "This is not the case in health care.... I can't tell you the number of tests that all of us in this room have taken just so that doctors won't be sued for malpractice."

Barack Obama on Tort Reform:

  As a lawyer and constitutional law expert, Obama has spoken favorably of civil litigators at times, but has also been noted in the press to be somewhat more critical of "trial lawyers." While campaigning for the Senate in Illinois years ago, he said, "Anyone who denies there's a crisis with medical malpractice is probably a trial lawyer." [Unsubstantiated info ahead] Furthermore, it has been noted that Obama voted in favor of caps on non-economic damages in medical malpractice cases when he served in the Illinois General Assembly. [NOTE: I pulled this quote from a business website doing a neutral review of the tort reform stances of the candidates.  It was old (pre-nomination) and fairly balanced.  Of course, there was no reference in the article.  I've been questioned on this now, so I'm trying to verify the so-called votes.  Frankly, I was suprised that Obama would vote for any type of cap given his Constitutional experience, so this could be my bad reporting compounding someone else's bad reporting.  Good thing I'm not a reporter!]

 

In 2005, Barack Obama voted for CAFA, the Class Action Fairness Act of 2005. Who voted against it? Hillary Clinton, Dick Durbin, Ted Kennedy, Pat Leahy, Joe Biden, Barbara Boxer and other progressive Democrats.  The Class Action Fairness Act was strongly supported by business groups like the US Chamber of Commerce.

The ABA describes CAFA in this way:

In a nutshell, the Class Action Fairness Act has two principal parts. One set of provisions establishes new procedural and substantive standards applicable to class action settlements. Some of these merely duplicate (or add little to) existing practice under the Federal Rules of Civil Procedure, but others — such as new limitations on attorneys’ fees in coupon settlements and requirements that government officials be notified whenever a class action settles — are brand new.

In addition to the CAFA bill, Obama has taken a position on medical malpractice tort reform which focuses on improvements in patient care and lower error rates.  In fact, Obama and Hillary Clinton co-authored an article in the May 25, 2006 issue of the New England Journal of Medicine, entitled "Making Patient Safety the Centerpiece of Medical Liability Reform."

In conjunction with the publication of their article, Obama and Clinton introduced and co-sponsored the National Medical Error Disclosure and Compensation (MEDiC) Act of 2005, a bill that, in part, would have required hospitals to disclose errors to patients and would have also created a national patient safety database. The bill further proposed to create a Department of Health and Human Services program that would seek early compensation for patients and offer liability protections to doctors in exchange for their disclosure of errors and apologies. This legislation was never realized and died in 2006.

The Last Frontier:  The Supreme Court of the United States

Other than the candidate platforms and positions, many would argue that the real "tort reform" is accomplished by appointing Judges who will take "tort reform" positions on legal cases.  Justice John Paul Stevens (88 years old) and Justice Ruth Bader Ginsburg (74 years old), are both considered to be left leaning and potentially ready to retire in the next four years.

About the Supreme Court, Obama has said in a July 7, 2007 speech  "We need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom. The empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old. And that's the criteria by which I'm going to be selecting my judges."

McCain has said, "I tell you I will nominate only people who have a clear, complete adherence to the Constitution of the United States and do not legislate from the bench. That's who I'll nominate to the U.S. Supreme Court."

This article will not attempt to futher address the issue of Supreme Court appointments, though obviously the candidates would presumably appoint Judges who agree with their general philosophy on the law.  Whether that position is "pro-consumer" or "tort reform" will be for the reader to decide.

I'll update this article as I find more information.  Obviously, John McCain has a long voting record, so there can be much more analysis of his voting positions than of Obama.  I may also try to take a look at the positions taken by Biden and Palin, although, again, Biden will have a much deeper record than Palin.

----Chris Nichols

Nichols Law Firm

Comments

[David Damick]

We would be very interested in the source for your comment that Sen. Obama voted for caps on any civil cases in the Illinois legislature. As a practicing attorney in that fine state, I am unaware of such a vote, and it would be of significance since this has been an issue of brutal contention here. Note that your statement as to Obama's vote has been picked up and repeated elsewhere, so I hope there is something to it, as the damage done by rumor is next to impossible to undo.

[Chris Nichols]

http://www.allbusiness.com/government/elections-politics-campaigns-elections/10594612-1.html

I have tried to go behind this source and verify the so called votes for caps but have been unable to verify them myself. I'll place an edit above to note that.

If anyone can help me navigate the IL General Assembly Website, I'm happy to hear from them.

I'd guess that the economic caps bills are well know in IL. I know one was passed in 2005, a year after Obama left the Senate in 2004.

Chris Nichols

[Thomas Sharon, R.N., M.P.H]

It seems as though tort reform has become a religious belief and a rallying cry. McCaine is no surprise, but Obama confirms the adage that if you repeat a lie often enough it becomes the truth.

[Clinical Trial Regulations]

Thanks for this great post.......

[Felix Chesterfield]

Does anybody have any experience with these North Carolina Lawyers ?

[aghadilbar]

Peace & Prosperity
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Agha Dilbar

My Open Letter (Blog) has been sent Eight Lak (800000) to International Community for the welfare of Humanity till today. I Agha Dilbar authorize Newspapers, Magazines, Internet, to Publish and Radio, T.V. Channels to broadcast this letter all round the World.
Website: http://aghadilbar.webs.com
Dear President Barrack Obama
the Great Leader of the World
I Agha Dilbar have sent Mr. President 100 registered research Letters (1000 new ideas to develop America and to Change the World for Peace and Prosperity)
Through Embassy of USA Islamabad till today and also direct sent these registered Letters to Whitehouse Washington DC 20500.These letters have been written on the guidelines of CHANGE WE NEED. And these letters are about the Common Men Problems of respected American Peoples and their Solutions. To end, Economic Recession, Unemployment and to Finish War, all round the World for Peace and Prosperity. In these letters I have sent one thousand new scientific Planning /Suggestions, about every walk of life for Peace through Friendship Progress and Prosperity all over the World.
My dear Barack Obama, the great leader of the world, my friend, my brother, provide an opportunity to Agha Dilbar to pay an official visit to America, that we two brothers sit together and by halt this horrible war. if this war continues for 10 20 or 50 –year, it will never end.
In this war 1-million people have died from 9/11 till today, if this war continues, it will become the 111- World War.200-Million people would die, if 111-World War is triggered) can take out 6.5 billion people of the World from abyss of destruction .We two brothers Barack Obama+ Agha Dillbar can put them on the road to Progress and Prosperity through Peace.
Dear President Barrack Obama considers, from 9/11 till today, America has conducted many war operations in connection with War on Terror, resulting the circle of war has spread hundred times. Millions innocent persons have died.
In this war. Many have been rendered homeless. One Lak (10000) war affected youth joined the army of Al-Qaida and Talban by the help of anti American countries have begun gorilla war in a horrible manner. It is the result of wrong war strategy. I Agha Dilbar desire to solve all above mentioned problems in a meeting with President Barrack Obama by adopting new revolutionary planning by bringing an end to present gorilla war in Iraq, Afghanistan and Pakistan. As a result the World can enter in a peaceful, advanced and progressive world, May it be so!
I Agha Dilbar have a new War Strategy to achieve success through Table Talk between Talban, Pakistan and American Gov. 90% of Talban that are fighting against Pak Army belong to Swat and Tribal Areas of NWFP. I can provide America all realistic facts in such manner that their implementation could convert these Talban into Patriotic Citizens of Pakistan.
In this War Strategy Pakistan Gov will never send his Heavy Artillery, Tanks, Cannons and Air craft in war. In this way 5-million persons will never Displaced. In the end Talban by their will handover, their Weapons to Pakistan Gov, they will come to Table Talk and Suicide Bombing will come to an end in Pakistan. Through this War Strategy Pakistani and American Gov can save expenses on war. Through this planning American and Pakistani Gov can utilize their saving on war budgets for development of Schools, Hospitals, Colonies, Markets, Industry, Roads, Bridges, Dams, Canals of Swat and Tribal Areas of NWFP that are war affected.
Due to wrong war strategies of the American and NATO forces.
The war on terror is getting worst mainly due to use of air craft, tanks, Cannons.
Because nine innocent people are killed for a single terrorist this way in these circumstances thousands
of innocent people lose their life or properties and any other source of income.
In the result many people join terrorist or become suicide bomber. As they think there is no other way to take revenge of the innocents killing of their relatives these are the basic reasons that hundreds of suicides are generated very quickly and easily in Pakistan, Afghanistan, Iraq particularly who further kill thousands of other innocent public.
On account of present war strategy, Billion Dollars are being wasted yearly.
This war can cause Fall of America instead of continuation of war; my best suggestion for America must keep his Supper Power on the World and should conquer the World instead of war, but by his No-1 scientific technology spending on agriculture, industry, trade, education, scientific development and tourism, all round the World. Making an end to Economic Crisis in America.
A new Global Package is being offered for your kind consideration America will have to make complete and final announcement that in future all Multinational American Companies will get free land on 20-years lease and will set up under the BOOT agreement (in undeveloped and poor countries) factories, mills five star hotels, schools, colleges, universities, hospitals, air companies, shipping companies, latest railway, bus transport and steel mills. All these companies will be bound to handover without any cost to under developed and poor countries well as their machinery and transport after 20-yaars.
A new suggestion in connection with Global Peace is offered that in return of export American Agriculture and Industrial Products, will give his 50% profit to the exporting countries and utilize as Aid on the development of agriculture, industry, trade, education and tourism. This suggestion, making an end to American Economic Crisis and get full support to enhance his Foreign Public Relation
. May it be so!
To make successful American Foreign Policy at Global Level the following planning is put before:
a) America will have to provide free scholar ships at least to ten top master students (in each country) of medical and science in underdeveloped and poor countries of the world.
b) Highly educated and well trained one hundred cultural groups (each group contains 100 persons) will have to arrange one hundred cultural shows for three months in big cities of underdeveloped and poor countries.
c) America will have to arrange exhibitions through his Embassies for his latest products, in the underdeveloped and poor countries .All these mentioned above industrial exhibitions will be arranged continuously for two months. In the above mentioned exhibitions present products will be sold except export order booking. In these exhibitions, American Cultural Programs will have to arrange and American Traditional Dishes will be kept for sale. In these exhibitions American Tourism Stalls will also be put-up.
Following rules and regulations will be undertaken for the progress and prosperity of American students.
a) Among metric, Fsc, Bsc, (eng} .Mbbs, Llb, Ca and diploma holders in all institutions, all those receiving degrees at the state level, ten each from girls and boys by cash prizes will be announced on behalf of the gov during invitation on lunch.
b) For above mentioned top ten intelligent students boys and girls each, tours for different historical and healthy sites will be arranged free of cast.
c) Sport Talent Schools of international level will be set up over the country at the district level, in which students of extra-ordinary sports talent taught from class one to Fsc level.
d) American states gov will announce free transport, free medical facilities and free lunch during education to all school, college and university students.

Minimize the aforesaid differences, which I will deliver to president
the increasing distress and hatred between the Muslim world and America is the major cause of weak relationship on public and government level.
As a sincere friend I have practical suggestions to Barack Obama in my official visit to America.
I request the government of America to allow me to describe (first of all my briefing with president’s advisors). My one thousand plans & ideas for changing the world before one to one meeting with the president Barack obama.thanks
Today we are presenting a new planning in America for the rapid progress in industry.

American government will allow to 50% relief in the following things. Petrol, dizel, electricity,
gas and water bills

For the establishment of new industries in industrial zone American government will allow 25%relief in taxes .

1) Sugar mills, textile mills, Garment Industry
2) Shoes tire tube factory.

3) Milk powder industry, tin pack fruit industry, ornament industry, carpet industry.
4) Frozen fish, chicken beef, and meat industry.
6) Dairy forming, poultry forming, fish forming, cattle forming, fruit forming.
7) Vegetable forming biscuit sweet industry hotel industry.
8) Electronic industry, sanitary industry paint industry.
9) Furniture industry.
10) Steel mill industry.
11) Engine industry.
12) Aero plane industry and shipping industry.
13) Computer and mobile industry.
14) Medicine industry fertilizer industry and insecticide industry.
15) Car, bus truck loader, harvester industry.

I Agha Dilbar have sent Ten Million research Peace Letters to International Community from 9/11 incident till today. This letter is my Great Peace Mission plan which is continued. Present Global Economic Crisis is the result of War on Terror. This Crisis if further accelerates could initiate a 111-World War. Please hear my Voice of Truth; I can save the World, for my Great Peace Mission, with the help of President Barrack Obama, Peace and Prosperity.
The Government of America will announce to provide free home facility to employees after 20 year of service as per following rules and regulations.

1. For providing free home facility to their employees after retirement the government will deduct 2 ½% amounts for their monthly salaries.
2. The government of America will deduct 2 ½% amounts of salaries to the employee and will deposit the same in government treasury which shall be paid to the housing company on allotment of plots.
3. The housing company shall provide beautiful home to the government or non government employee after 20 year of service.
4. The people not acquiring home after 20 year of service shall be paid in whole by deducted total amount from their salaries during their employment.
The government of America should follow the below regulations immediately. For giving facilities to the government and
private employees.

The employees working in America shall be given pension from the government treasury equivalent to 50%
Of their salaries.

Such employees who suffer from disabilities shall be given insurance benefits for their whole lives for the government treasury.
And their children of the employees who face death also be paid insurance to their parent’s salary.

All the employees working in America shall given free transportation, medical facility, food and living during their tenure.

Employees leaving their jobs in America shall be paid given 3 months advance salary.

President Barack Obama will become more popular by taking above action, and industry wills also prosper more in America.

Ten thousand small dams planning during seven years in USA as a result of this planning ten million
people shall obtain employment. Other than doubling the electricity shall also benefit fish forming, tourism, agriculture
and trading.

To obtain the subjective following rules and regulation shall be observed.

Government and private institutes of America shall pay 5%share of their income
In the new international development of corporation (IDC).


2.IDC shall invest to build ten thousand new hydro electric dams adjacent to all the rivers
with 100 km.

3.From these small dames network of rivers shall be obtained this benefit fish forming and tourism spot.

4.1500 hundred Dams shall be built each year at every cost.

5. To speed up the progress of IDC government state government, arms forces and semi government
organizations shall help and support the implementation of these small dams.

The following regulations would be implanted to install American institutions of international standard for progress and construction in all the backward countries of the world.
In the suggested institutions, the 50% investment would be done by American government, and these institutions would work private autonomous bodies.
In the underdeveloped countries, the developmental institutions would sell these services privately in the following fields, in collaborations with the suggested institutions.
Roads and bridges
Industrial zones
Housing projects
Car, bus and truck industries
Agriculture projects
Schools, colleges and universities
Hospitals and nursing training institutes
Poultry fish and cattle farm training institutes
Paper sugar and furniture industries
Textile and garment industries
Milk powder and tin pack fruit industries
Ghee oil and soap industries
Electronic and electric industries
Engineering industries
Steel railway aero plane and shipping industries

To bring an agriculture and industrial revolution, the following regulations would be implemented
a) In America, all the agricultural and technical institutions would be given following concessions instantly.
1) All the new and old agriculture and technical institutes would be from all kind of taxes i-e income Tex, sales tax and property tax
2) In America, all technical and agricultural training institutes would get 50% investment from federal and provincial governments
3) Free books would be provided to students studying in these institutes of international stand red.
4) All the expenses of students studying in these institutes would be borne by the federal and provincial governments.
5) New courses of international stand red would be planned to teach in these agricultural and technical institutes.
.

During the next seven years in America, the foiling rules and regulations would be observed to install one million wind mills and one million off shore tide tribunes.
In the result of implanting the suggested plan, besides a large scale of production of pollution free electrical energy, there will be great development in employment, agriculture and industry
1) Federal and states government would announce no tax on wind mills and off shore tide tribunes.
2) To install wind mills and off shore tide tribunes the federal and states governments provide free land near off shore.
3) To act upon the above mentioned plan, the federal and states governments America would announce to provide 50% capital to initiate the business.

To develop agriculture, industry and business to increase production and to provide employment resources, the following rules and regulations would be implemented.
a) There would be a 50% tax relief to all factories, mills, schools, collages and universities and commercial institutions, which are working in double shifts. The number of workers the second shift would be equal to the workers in the first shift.
b) In America , all federal and state government factories, mills, schools, colleges universities and all commercial institutions would be given 100% tax relief , which are running on triple shifts i.e. 24-hours,in such cases, the number of workers in second and third shifts should be equal to the number of first shift.
c) All the exporters in America, increase their exports in comparison to last year by 50%, would get 50%tax relief.
d) Those exporters who would double their exports 100% in comparison to last year would get 100% tax relief by the government.

Mr. Barack Obama you are not only the Leader of America, you are Great Leader of the World. In this connection I am waiting for your Email response, dated 2.10.2009.
Please Confirm.
Thank you, God blesses you and God bless America.
Agha Dilbar (founder)
International Revolution Movement
64-neelum block ait Lahore (Pakistan)
Phone: 0092427830084
Cell 03224628349
Email aghadilbar4@gmail.com
Website http://aghadilbar.webs.com/
This Open Letter has been sent Eight Lak (800000) to International Community for the welfare of Humanity till today. I Agha Dilbar authorize Newspapers, Magazines, Internet to publish and Radio, T.V. Channels to broadcast this letter all round the World .
I Agha Dilbar challenge with 100% trust that own result of my meeting with Barack Obama war on terror and suicide attacks in PAKISTAN, AFGHANISTAN ,IRAQ And all over the WORLD could be put to an end and due to this great success Barack Obama would be able to rule the America till 2016. And on my return of my official visit from America the world will be set on the way of implementing the CHANGE WE NEED. Live with Dignity and Die with Grace.
It has been extraordinary to read and hear, some of the things I did my decision alone by the voice of God, who called me in my heart.
Mystery of success to rule the World
Peace through friendship progress and prosperity.
Thanks
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