McCain v. Obama on Tort Reform
August 30, 2008
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
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.
"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."
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.
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 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
