A Lawyer’s Delight – An Obama Win Kills Tort Reform

Posted on Wed 10/08/2008 by


The presidential election on November 4, 2008, is a referendum between doctors and businesses and trial lawyers. If John McCain is elected, the doctors and businesses win. If Barack Obama is elected, the trial lawyers win. McCain wants to eliminate frivolous lawsuits and have a cap of $250,000 for patient compensation.

It is not true that tort reform is a “catch-all phrase for legislation designed to make it harder for individuals to sue businesses.” Many fort reforms make it easier for persons with legitimate claims to sue. Tort reforms are simply ways to improve the accuracy and efficiency of the civil justice system. They are opposed by trial lawyers who derive billions of dollars from them, and they are supported by businesses and consumers that are victims of them. The trial lawyers also want to blur the role of the Supreme Court by implicitly endorsing the liberal idea that the Court is a super legislative rather than a judicial body with an obligation to follow the law. If Obama is elected, there are dozens of pro-trial-lawyer lobby bills pending in Congress that are likely to be passed. McCain would not hesitate to veto these giveaways to the trial- lawyer lobby if they are in single purpose bills and not attached as hidden amendments to omnibus legislation.

The legal establishment is overwhelmingly liberal, with a 3:1 fundraising advantage for Obama. He is getting money from defense firms, or, more accurately, attorneys who work for defense firms. These attorneys are perfectly happy with a status quo that requires companies to pay them millions of dollars to continue doing business. Some are too happy, and have vocally supported ABA resolutions that would harm their clients. Plaintiff’s law firms contributions are often coordinated, sometimes a bit illegally. One firm was caught reimbursing their employees for donating to John Edwards. A Chicago-based firm named Kirkland and Ellis has a disproportionate number of attorneys that are former classmates or students of Harvard Law graduate and Chicago Law lecturer Obama, and have six and seven figure incomes to give maximum contributions. It only takes a few dozen $4,600 contributions to make a firm look like a big contributor. The fundraisers who gave money to Edwards, Clinton, and Biden during the primaries are now doing business with Obama.

In legislation concerning medical malpractice, Obama voted for the eminently sensible Class Action Fairness Act – CAFA The litigation lobby and the usual cast of suspects opposed the bill. Various members of the lunatic left thought this minor procedural reform protecting against abusive forum shopping (filing in 2 or more district courts or in several states) by plaintiff’s attorneys had much larger consequences and expressed outrage against Obama for voting for it. So Obama may have annoyed the crazies with his vote for CAFA, but eighteen other Democrats also voted for it. It would have passed the previous Congress except for the unfortunate timing of Edwards being named the VP nominee, so Democrats fell in line and filibustered the bill. Passing civil justice reform at that time would remind people of Edward’s unsavory means of acquiring his fortune on the backs of pregnant mothers and obstetricians. Obama didn’t participate in any of the negotiations to get Democrats support, and he voted for every Democrat attempt to eviscerate the bill. He didn’t break with Democrats on any of the serious tort reform, and he filibustered malpractice reform, including no caps on awards. He claimed to support medical malpractice in his Senate campaign, but so did Kerry and Edwards in their 2004 campaign.

Obama co-sponsored the MEDiC bill with Hillary Clinton; it was a federally funded variation of the so-called “Sorry Works” proposal that the plaintiff’s lobby had proposed as an alternative to medical malpractice reform. This idea would have doctors apologize to patients for harmful errors toward improving the quality of a medical system that kills thousands of patients a year inadvertently. Many doctors have been afraid that admitting and describing their errors would only invite a costly lawsuit. To encourage greater candor, more than 30 states have enacted laws making apologies for medical errors inadmissible in court. Patients seem less angry when they receive and honest explanation, an apology, and prompt, fair compensation fro the harm they have suffered.

If Obama is elected president, the outlook for tort reform is grim. If McCain is elected, there is a real possibility of meaningful reform, including caps for pain and suffering. There may even be a chance for loser pay legislation (as in the U.K.) that would dramatically reduce frivolous lawsuits.

See Marlin6’s previous article: Doctors Vs. Lawyers