Dean: Lawmakers scared to tick off trial bar

By John O'Brien | Sep 1, 2009


WASHINGTON (Legal Newsline) – Darren McKinney, spokesman for the American Tort Reform Association, concluded Monday that former Presidential candidate Howard Dean is a man with a history of speaking his mind.

Dean did just that at a recent town hall meeting in Virginia when he said those who crafted President Barack Obama's health care reform package were too afraid of trial lawyers to include any tort reform measures in it.

Rep. Jim Moran, D-Va., was asked why tort reform hadn't been considered. Dean, a doctor and former Democratic governor of Vermont, took the podium.

"When you go to pass a really enormous bill like that, the more stuff you put in it, the more enemies you make," said Dean, who has also served as the chair of the Democratic National Committee.

"And the reason tort reform is not in the bill is because the people who wrote it did not want to take on the trial lawyers in addition to everybody else they were taking on, and that is the plain and simple truth."

McKinney obviously agreed with Dean's assessment.

"As a former practicing physician – and I'm not certain of this but his wife may still be, I know she was at one time – certainly as a couple I'm sure they have had their experiences with unfounded malpractice lawsuits," he said. "Every doctor does.

"My guess is he was wound up. It was a sizeable crowd and well-attended, like packed-to-the-rafters-attended, and my guess is he got a little excited and his candid nature got the best of him and he said what was on his mind."

The ATRA says campaign contributions are to blame for the lack of tort reform, claiming the Democratic Congress and president do not want to ruffle the feathers of some of their heaviest donors.

The American Association for Justice, formerly the American Trial Lawyers Association, did not respond to a message seeking comment.

McKinney said the AAJ is probably planning to stay quiet in the debate, though the president of the Iowa Association for Justice did submit an opinion piece that was published in the Des-Moines Register.

"When medical-industry lobbyists talk about medical negligence 'reform,' they are not talking about reducing the alarming number of medical errors; they are talking about restricting injured patients' rights to hold negligent medical providers accountable," Tom Semelroth wrote.

"Putting aside the obvious injustice of shifting the burden from the wrongdoer to the victim, a careful investigation shows that limiting the rights of injured patients does little to treat the most significant symptoms of our ailing health-care system."

McKinney said tort reform in the health care industry could benefit it in three ways. The first would come in the form of lower insurance premiums because health care professionals and insurance companies would spend less fighting meritless lawsuits, while a cap on non-economic damages would lower the amount they pay to plaintiffs, he said.

The second would diminish the role of defensive medicine, practices designed to limit the possibility of malpractice suits, and the third would recruit young people to become doctors.

"Whether we want to expand the number of primary doctors, as Obama suggests we should, if we're going to do that, much less maintain the number of doctors we have now, we as a society have to continue to attract bright young people to the study of medicine," McKinney said.

"If you're 22-year-old, are you going to think about going through 10 more years of study and hundreds of thousands in student loan debt, not to mention countless sleepness nights, if some slippery shyster could allege negligence at the drop of a hat without having to make worthy case?

"The common-sense argument is you gotta get the ambulance chasers off their backs."

Obama told the American Medical Association in June that he had no plans to put a cap on jury damage awards in malpractice suits. Another option, McKinney feels, would be to establish health courts.

Judges specifically trained to deal with medical issues would oversee malpractice cases. Suits filed in those courts would need to initially present facts that raised the question of whether malpractice had been committed.

"Considering a Harvard study showed four out of every 10 malpractice suits were meritless, they ought to be treated that way," McKinney said.

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