The North Carolina Legislature is considering passing a law which was written, largely, by multinational pharmaceutical corporations. The Bill would make NC the worst state in the nation in terms of protecting its citizens from wrongdoers.
The legislators who have bought into the corporate lobbyist's money agenda in Senate Bill 33 would gladly sacrifice the liberty of the citizens at the throne of the new "King": international pharmaceutical corporations and insurance companies.
This BOLD parts are from the "core values" listed for the "Tea Party Patriots" and serve as an example of Tea Party values. http://www.teapartypatriots.org/mission.aspx
Core Values of the Tea Party
- Fiscal Responsibility
- Constitutionally Limited Government
- Free Markets
Fiscal Responsibility: Fiscal Responsibility by government honors and respects the freedom of the individual to spend the money that is the fruit of their own labor. A constitutionally limited government, designed to protect the blessings of liberty, must be fiscally responsible or it must subject its citizenry to high levels of taxation that unjustly restrict the liberty our Constitution was designed to protect. Such runaway deficit spending as we now see in Washington D.C. compels us to take action as the increasing national debt is a grave threat to our national sovereignty and the personal and economic liberty of future generations.
Why "tort reform" proposed by the NC legislature is contrary to these values:
Fiscal responsibility emanates from the individual and is embodied by the government which derives its existence from the will of the people. "Tort reform" in the form of arbitrary caps on damages and immunity from certain forms of negligence by certain "classes" of individual (for example, immunity for negligent emergency room doctors) shifts the natural consequences of actions from the wrong doer to the government. Individuals who do harm should be held personally responsible for the full extent of their harm and not shift financial responsibility to government entitlement programs.
"Tort reform" in the form of NC Senate Bill 33, simply redistributes the cost of individual harm from the wrong doer to the tax payer. More specifically, by providing immunity to certain types of negligent physicians, when those physicians cause great harm to individuals, the harmed individual will eventually take tax dollars in the form of entitlement programs such as medicare, social security disability, and medicaid. The harmed citizen will be a drain on our government and our taxes.
Fiscal responsibility demands that the individual causing harm rely on their own resources and insurance converge in a robust free market- not the government to use tax dollars to bail out the negligent.
"Tort reform" is not fiscally responsible.
Constitutionally Limited Government: We, the members of The Tea Party Patriots, are inspired by our founding documents and regard the Constitution of the United States to be the supreme law of the land. We believe that it is possible to know the original intent of the government our founders set forth, and stand in support of that intent. Like the founders, we support states' rights for those powers not expressly stated in the Constitution. As the government is of the people, by the people and for the people, in all other matters we support the personal liberty of the individual, within the rule of law.
Why "tort reform" proposed by the NC legislature is contrary to these values:
There is no question that our founders believed in, and enshrined with the Constitution, the unalienable right to a jury trial for civil suits, which our Founding Fathers protected through the 7th Amendment to the Constitution after centuries of recognition in British law and Judeo-Christian writings.
Historically, the right to a trial by jury was the basis for "The Declaration of the Causes and Necessity of Taking Up Arms," which was a document issued to explain why the colonists had initiated armed conflict against Great Britain, and was written by John Dickinson of Virginia based on a draft by Thomas Jefferson.
Dickinson wrote in the Declaration, "Parliament was influenced to adopt the pernicious project, and assuming a new power over them, have in the course of eleven years, given such decisive specimens of the spirit and consequences attending this power, as to leave no doubt concerning the effects of acquiescence under it. They have undertaken to give and grant our money without our consent, though we have ever exercised an exclusive right to dispose of our own property; statutes have been passed for extending the jurisdiction of courts of admiralty and vice-admiralty beyond their ancient limits; for depriving us of the accustomed and inestimable privilege of trial by jury, in cases affecting both life and property..." -- Declaration of the Causes and Necessity of Taking Up Arms, enacted July 6, 1775 by the Second Continental Congress
The "tort reform" proposed by the North Carolina legislature fundamentally deprives citizens of the right to a trial by jury in several ways. First, it grants blanket immunity from suit to certain classes of citizens, namely, emergency physicians and emergency room personnel, and corporate producers of pharmaceuticals (drugs). The proposals say, quite plainly, that a citizen injured or killed by any of these privileged groups can not sue and have a jury determine the fairness of their claim.
The Constitution clearly guarantees the right to a trial by jury to all citizens in the 7th Amendment.
John Adams wrote:
As the Constitution requires that the popular branch of the legislature should have an absolute check, so as to put a peremptory negative upon every act of the government, it requires that the common people, should have as complete a control, as decisive a negative, in every judgment of a court of judicature.
He also wrote, "Representative government and trial by jury are the heart and lungs of liberty. Without them we have no other fortification against being ridden like horses, fleeced like sheep, worked like cattle and fed and clothed like swine and hounds."
Thomas Jefferson, the author of the Declaration of Independence and the third President of the United States, said, "I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution."
James Madison, the author of the Constitution and the fourth President of the United States, said, "Trial by jury in civil cases is as essential to secure the liberty of the people as any one of the pre-existent rights of nature."
"Tort reform" as proposed in SB33 and other bills curtails the natural right to trial by jury and should be opposed.
Free Markets: A free market is the economic consequence of personal liberty. The founders believed that personal and economic freedom were indivisible, as do we. Our current government's interference distorts the free market and inhibits the pursuit of individual and economic liberty. Therefore, we support a return to the free market principles on which this nation was founded and oppose government intervention into the operations of private business.
Why "tort reform" proposed by the NC legislature is contrary to these values:
A free market economy rewards entrepreneurs for their actions that benefit society. The manufacturer who builds a superior product wins in the marketplace, and few would question that manufacturer's right to reap the rewards of its own ingenuity. This is largely because the manufacturer has, in the effort to succeed, shouldered a risk of failure. It is the marketplace, comprised of ordinary people, rather than the government, which determines whether the manufacturer wins or loses.
If the efficient production of material wealth is all that concerns us, then the marketplace needs no other rewards or penalties. Most will agree, however, that manufacturers should be encouraged to create safe as well as efficient products, for the number of deaths and injuries annually caused by defective products is astronomical. According to the 2003 Annual Report of the U.S. Consumer Product Safety Commission, there were 4,509 deaths and 13,690,526 injuries associated with just 15 categories of consumer products during that one-year reporting period. Deaths and injuries caused annually by toxic pharmaceutical products also rival these numbers.
By making manufacturers liable to the people they have injured, the once-revered common law tort system creates an incentive for the manufacturer to build a safer product. Those who advocate more government might suggest that safety can best be engineered from above, by governmental regulation, but true advocates of a free market will agree that it is better to permit the manufacturer to determine how to make its own product safe for consumer use, rather than some government bureaucrat. In exchange for the right to determine the most efficient way to make its products safe, however, a manufacturer must be subject to suit for failure to perform this undertaking.
"Tort reform" as proposed by the NC legislature in SB33 relieves manufacturers of defective products and providers of negligent services from the natural free market consequences of their actions. This creates imbalance in the market and also encourages an increase in governmental regulations.
The free market demands that consumers have a right to recoup their losses through the fundamental right of trial by jury. This provides natural incentives for "good behavior" in the marketplace.
Looks like the physicians have finally reigned in their own insurance company by realizing that the "crisis", if there is one, is mostly in the minds (and wallets) of the insurance industry.
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.
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.
Back to 2007. From a physician website, MedPage Today:
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
Posted by Chris Nichols on August 30, 2008 at 06:49 PM in General Comments & Feedback, News and Law for Non-lawyers, Tort Reform | Permalink | Comments (6) | TrackBack (0)
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