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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).
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, 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 1.800.906.5984

NC Trial Law Blog hits 30,000 views

Well, the world's ugliest law blog has hit 30,000 unique visitors after a little less than 2 years of operations.

Not bad for a blog concentrating on one of the more boring topics in the world:  liens and subrogation.

Here are the stats as of today:


Maybe I'll set my summer intern loose on trying to make this Blog look slick and sophisticated....  probably not.

Chris Nichols 1.800.906.5984

NC Trial Law Blog hits 10,000

I'm happy to say that today turned "10,000" so to speak.  I've had 10,000 visitors since the "launch" of the Blog last August.

Honestly, I have no idea if this is "good" or not, but it averages out to about 30 new visits per day, so I think in general, it's been a good thing.

For those very few that subscribe to an RSS feed, sorry I've not been posting a whole lot lately.  I had a month long trial in Charlotte, back in March, and that kept me pretty busy for the two months before, and the two months after.

I'll be posting some new lien resources in the next few weeks, and I'm working on a neat little software package that might just help the lawyers out there.

As always, send me your suggestions by email to [email protected], if you have them.

Chris Nichols

10000_hits 1.800.906.5984

Preview my new Website

My new law firm website is almost ready to go "online" now.

I need to upload some articles and make a few typo corrections, but it is ready to be viewed and critiqued.


New Nichols Law Firm Website(beta)

Check it out and feel free to comment here, or send me an email privately.


Chris Nichols 1.800.906.5984

North Carolina Trial Law Blog

This post is being placed under this heading in order to allow people to find this Blog easier with Google searching.   The website is

The topics of this Blog include:

medicare, medicaid, trial law, liens, subrogation, personal injury, ERISA, lawyers, and law

The North Carolina Trial Law Blog is published by Nichols Law Firm and attorney Christopher R. Nichols.  My office is based in Raleigh, NC but I also have an office in Hendersonville, NC.  I practice across North Carolina, and work a lot in Durham, Chapel Hill, Greenville, Fayetteville.  In the western part of North Carolina I have worked extensively in Asheville, Hendersonville, Hickory, Morganton, Franklin and all areas in bewteen.

Chris Nichols 1.800.906.5984

Thanks to Health Plan Law for the positive mention

Fine Discussion!

Thanks to Health Plan for the positive mention of my recent post setting out practical guidelines for using the recent Supreme Court Ruling in Ahlborn to reduce Mediacid liens in personal injury settlements.  Here is what they had to say:

Nonetheless, U.S. Supreme Court has held that these provisions do not support State statutes that claim more than the portion of a Medicaid recipient’s settlement that represents medical expenses. See, Arkansas Department of Health and Human Services v. Ahlborn, 126 S.Ct. 1752 (2006). A fine discussion of the implications of this case appears in the North Carolina Trial Law Blog. Thus far, little guidance has developed from the courts as to the implications of this May 1, 2006 decision, but its taming effect on Medicaid reimbursement demands should be evident in future developments.

Good News, Bad News

I will admit that the only downside is that since is a web site for Health Plan Administrators, they probably like Ahlborn because it means more money for them to subrogate against (ala, ERISA claim for reimbursement).  (Warning:  self congratulation ahead)  Oh well, at least they know good analysis when they read it .  The good news is that the tone of the Health Law Article suggests that they too think that Medicaid liens can be "Draconian" (their words).  Sounds like we may have some health plan administrators out there with some real heart and understanding of what happens to a severly injured Plaintiff who receives nothing from a settlement because they have to "pay back" Medicaid, ERISA, etc. makes for interesting reading too.  If you want to see the challenges of regulatory, statutory, and monetary red tape, check out some of the things these folks have to handle.

-Chris Nichols 1.800.906.5984

Bored by the law

My dog, Winston.  About as excited as he ever gets when I'm blogging.

I really do not intend to make the NCTL blog into some sort of law-like "My Space" and I promise we will keep things serious and on point, but I gotta tell you, when I'm reading articles on thrilling topics like "liens and subrogation" it's nice to have a dog photo thrown in from time to time to break things up.  I hope you think so too.

Besides, Winston is my blogging buddy, hanging out with me when I work on the computer. 1.800.906.5984

Thanks to Insurance Coverage Blog for the mention

Well folks, a momentous day for the NC Trial Law Blog....this Blog was actually mentioned and linked in another legal Blog, Insurance Coverage Blog

A positive review

Here is the specific post  from Insurance Coverage Blog that starts with an analysis of the "family member exclusion" and ends with the comment about my Blog.  For you long time legal bloggers out there, that's probably no big deal, but considering how new NC Trial Law Blog is, I'm pleased to have received an unsolicited positive mention on a very well written legal Blog.

Here is what David Rossmiller said:

As a bonus, I offer a blog post from North Carolina on a related subject: the household exclusion in umbrella policies.  This post is a call to arms against this exclusion -- sort of the French National Anthem of insurance coverage ("To arms O citizens of France") -- and I can't say I particularly agree, but I did find this post to be well-written and interesting.

(OK, I admit I added the underlining- CRN)

I know David takes issue with my objection to the family member exclusion, but that's fine, I realize that I was doing a bit of flag waving regarding what I consider to be some bad insurance law in NC.  I would argue, however, that I was waving the American flag, or at least NC's flag when I did it.  Not that there is anything wrong with France.  But then again, I do represent the families that have dead husbands and wives, orphaned children, and get denied insurance coverage when they thought they had it and had been paying for it.  That does make me a bit slanted toward people and away from insurance companies.

Anyhow, I'm just happy that we got a mention on what is now NC Trial Law Blog's 24th day of being "online."  We've barely removed the "sanitized for your protection" paper.

Thanks David, we've added your great Blog to our Blog Roll.

-Chris Nichols 1.800.906.5984

General Comments

This is the area to make any general comments about the Blog.  You can comment below, make requests, complain, compliment, or whatever you would like.  At some point, we will enable the function to allow other authors to post on this blog.

Thanks for posting,

Chris Nichols 1.800.906.5984