Before touching on the subject of so-called "tort reform," let me do what many congressmen and others often fail to do -- disclose my possible conflicts of interest.
While InsiderAdvantage and I survey and comment on major political issues for public consumption, we also conduct research and provide strategy for private entities (as do others in our business). Over the years, we have worked for organizations that both support and oppose certain types of litigation reform. Currently we advise some lawyers on how to be "more Republican" -- not always an easy task! So let me risk all future business opportunities on both sides by bluntly revealing what I consider to be the realities of this truly "insider" political battle. It will be waged both on the federal level and in many states this year.
Medical doctors claim that excessive jury verdicts are driving up their malpractice insurance premiums. They've decided the only prescription potent enough to cure this illness is to limit or "cap" the "non-economic damages," which are damages awarded in addition to lost wages and the like. Their wish is to cap the amount that can be awarded a plaintiff in a medical malpractice lawsuit to $250,000.
Sounds like a great conservative remedy, right? Something that Republican voters would just love. Well, before we award this proposed solution the bona fide conservative/Republican stamp of approval, let's look at the entire truth.
Truth No. 1 is that there does indeed appear to be too many "ambulance-chasing" lawyers out there, just as there are some arrogant, sloppy doctors. And let's not leave out corporate and defense lawyers who pad their bills and milk the system.
Truth No. 2 is that there are too many frivolous lawsuits of all types. Our national surveys consistently show the public wants legislation to help curb the problem.
Truth No. 3 is that when issues like this become political, the motives for the proposed remedies are often more hard-nosed politics than they are sound policy.
Among those of us who have been either Republican candidates for public office or have served as GOP campaign strategists, many have developed an intense dislike for the seemingly virulent manner in which so many members of the trial bar automatically give tons of money to any and all Democratic challengers, even in non-competitive races. So it has only made good political sense to tie up trial-lawyer money by pushing bills and public initiatives designed to make them spend their cash on fighting policy initiatives so they can't spend as much on elections. This trend has accelerated over the past year.
The problem is that when artificial jury-settlement caps as a solution to high-cost health care are polled straight-up with the public -- that is, absent too-typical language like "Today, doctors are ending their practices because of unfair lawsuits . . . " -- Republicans and other conservatives say they prefer other alternatives almost every time.
Why? It's really not hard to understand. Generally, conservatives are devoted to the concept of not tampering with the fundamental intent of the Constitution. We don't like activist judges, and usually the only thing we want capped are taxes.
But many longtime Democratic liberals on the trial lawyers' side also have trouble facing reality.
What many Republicans want are "front-end" filters that can keep bad lawsuits out of the system. They'd like a way for juries to determine whether a lawsuit is frivolous, for example, or a requirement that the loser of a suit should compensate the other side's legal expenses.
A complication is that there is a strong streak of populism that has younger trial lawyers backing GOP candidates. This is happening especially in the South, with its many Republican senators. And retiring Georgia Democratic Sen. Zell Miller has steadfastly refused to accept the $250,000 cap. He's more interested in snuffing out lawsuits in which millions of dollars are paid to plaintiffs in such frivolous cases as a hot coffee cup burning the hand of a fast-food customer.
As the new Congress gathers in Washington, Republican senators from populist states are being asked to risk a growing base of political support. These lawmakers fear seeing future political ads pointing to the harm done to stay-at-home moms and children who might gain little by economic-damage awards, thereby implying that their lives are essentially of less value than those who are employed.
In reality, many GOP leaders view the "get-even" strategy of caps to be a less-than-conservative solution. Just over a year ago, a similar cap proposal by Florida Gov. Jeb Bush faced its fiercest opposition from, of all things, that state's top Republican state senators. The end result was a significant compromise designed to avoid some of the pitfalls of the $250,000 limit.
Clearly there is a need for a re-haul of certain portions of our litigation system. But Republicans would do well to remember that tort reform doesn't list high among the public's concerns. Any reform should stay true to the conservative cause.