Issues of Civil Justice and Tort Reform:
What Role Will They Play in the Democratic Primaries?

By ANTHONY J. SEBOK


anthony.sebok@brooklaw.edu
----
Monday, Jan. 26, 2004

The early stages of the Democratic presidential primary race have been marked by intense media scrutiny of the personalities of the candidates. Still, it is not too early to begin thinking about where they stand on the issues that matter to the voters and the party that the candidates seek to represent.

On certain "big" issues, such as the war in Iraq and the economy, it is easy to find out what the candidates think, although sometimes it is more difficult to figure out whether they actually disagree with each other. In this column, I will take a look at an issue that does not often get a lot of attention: civil justice and tort reform.

Tort reform may not be a "hot button" issue for many voters in New Hampshire or South Carolina. But it is a very important issue for some of the largest contributors to both parties.

The Democratic Party, especially, has become increasingly more dependent on contributions from members of the plaintiffs' bar. In fact, in my opinion, trial lawyers, in a sense, play the same role in the Democratic Party that the National Rifle Association plays in the Republican Party: The role of the eight hundred pound gorilla no one dares to disobey Even if a Democrat disagreed with the views of the American Trial Lawyers Association (ATLA), I think it would be very difficult for him or her to vote against its wishes.

Because tort reform is not an issue that wins primaries, the candidates have said very little on the subject so far. Still, a lot can be gleaned from their websites and, more importantly, their past statements and actions.

I am going to focus on the major four candidates who are currently leading in New Hampshire; I suspect that some or all of them will be the focus of the primaries until a winner emerges, or is selected in Boston.

Howard Dean's Views on Tort Reform

I begin with Howard Dean because he seems, at first glance, to be the candidate who, for personal reasons, would be ATLA's least favorite candidate. After all, he is a doctor married to a doctor. Last year doctors marched in front of state houses and went on strike in many states demanding tort reform and protection from trial lawyers.

Furthermore, as the website Overlawyered has pointed out, in 1988 then-Lieutenant Governor Dean published a letter in the New York Times that seemed to imply that he would support limitations of tort damages at both the state and federal level.

Presidential candidate Dean has moderated his views, however. The question is whether his current positions fall within the Democratic Party's conventional views on tort reform.

Fortunately, Dean's campaign website is unusual in that it has a section devoted to the candidate's position on medical malpractice. Dean notes that both patients and doctors are ill-served by the current liability system. Dean believes that the states should "discourage frivolous lawsuits while still holding the health care system accountable." This formula seems appealing but vague: The problem is that these two ideals often conflict in practice.

So what concrete state-levels reforms does Dean endorse? On his website, he mentions only "non-binding pre-litigation review" of malpractice suits by expert panels, and the use of arbitration panels as a last resort before litigation. However, these reforms have been adopted by many states already, and, unfortunately, while they are excellent ideas, they do not seem to have effectively addressed the concerns of physicians and tort reformers.

What about on the federal level? Dean says that he opposes the Republican federal medical malpractice reform bill, which would cap damages throughout the nation. Dr. Dean is to be applauded for having broken ranks with the AMA on this issue, although it is hard to tell whether his stand is principled or driven by a realistic understanding of who hold the pursestrings in his party.

In any event, Dean does endorse one federal reform that has been supported by the AMA. He calls for the passage of the Patient Safety and Quality Act, which was co-sponsored by Vermont's maverick ex-Republican Senator Jim Jeffords. This bill tries to promote patient safety by allowing doctors and hospitals to report medical "adverse events" to specially-designated organizations in confidence. The law is based on recent theoretical work by public health specialists who believe that fear of litigation is inhibiting the free flow of information that could be used to review and improve medical procedures.

While I think that the Patient Safety and Quality Act sounds like a good idea, it should come as no surprise that consumer groups, who are traditionally skeptical of any thing that might inhibit litigation, are suspicious of the act. Consumer Union, for example, has said that the bill "would make it nearly impossible for consumers to compare the quality of care provided by doctors and hospitals, as well as keep hospital infection rates from becoming public."

Thus, in this one area, Dr. Dean may have trumped the judgment of Candidate Dean -- alienating numerous consumers and patients, in order to aid doctors and the progress of medicine.

John Edwards's Views on Tort Reform

If Howard Dean might have appeared to be ATLA's least favorite candidate, John Edwards appears to be its poster child. John Edwards was, until he entered the Senate a few years ago, one of America's most successful trial attorneys. He made his fortune, in part, on trying very large medical malpractice suits.

John Edwards is to be credited for using his career as a plaintiffs' attorney as a device to build and bridge between liberalism and the individualism that appears to have led critical voters (especially Southern males) to vote Republican. This view has become very clear both from Edwards' book published last fall, Four Trials and an essay he published in Newsweek in response to their cover story criticizing the tort system. (I discussed the original article in a recent column.)

In his book and in his Newsweek essay, Edwards describes himself as a champion of the "old-fashioned" values of personal responsibility and just deserts. In his view, the doctors and corporations he sued "deserved" to be punished no more and no less than Willie Horton -- the famous parolee used by the Republicans to paint the Democrats as "soft on crime" -- did.

Furthermore, while Edwards is a vociferous critic of tort reform, he is willing to admit that the medical malpractice system has been abused by his fellow lawyers. On his campaign website he suggests, like Dean, that before a medical malpractice suit can be filed, a lawyer should be required to get an expert physician to certify that there may be a valid medical complaint. As I noted above, however, this type of expert-based reform is pretty weak stuff.

But then Edwards goes on to make a more daring suggestion. He suggests that a lawyer who brings three frivolous lawsuits should be forbidden from bringing another one for ten years. Constitutionally, this reform would probably have to be enacted on the state level -- outside of the President's bailiwick. Nonetheless (or, perhaps, for this reason), it's very smart of Edwards to support it..

The truly brilliant part of Edwards's proposal, is how it once again uses criminal justice rhetoric associated with the Republican Party. At the end of his proposal on sanctioning lawyers, Edwards says, "in other words, three strikes and you're out."

Later on, Edwards says the same thing about sanctioning doctors who have been proven to have committed malpractice. I have no idea whether Edwards really wants to adopt the "three strikes model" for professional malpractice, but the net effect of this language is to make it harder for his opponents to paint Edwards as a knee-jerk defender of the tort system.

John Kerry's Views on Tort Reform

John Kerry has been in the Senate longer than any of the other leading candidates, and so, along with Joe Lieberman, he has had the most opportunities to actually respond to national tort reform efforts. However, Kerry seems to have stayed on the sidelines as much as possible with regard to questions of civil justice.

Kerry voted for the 1995 Private Securities Litigation Reform Act, a Clinton-era limitation on the right to sue for federal securities fraud. The Act was passed in part because in the mid-90's, the Democratic Party was sensitive to the concerns of a new group of wealthy funders--Internet entrepreneurs who thought the class action plaintiffs' bar was unfairly targeting Silicon Valley.

Later, Kerry voted against the Common Sense Product Liability Reform Act of 1996. But that was unexceptional: Almost all of the Democratic Party (Lieberman excepted) opposed the Act.

Finally, and curiously, Kerry was absent for the vote to end the Democrats' filibuster of the Class Action Fairness Act, a major recent tort reform effort.

Kerry's website says nothing specifically about tort reform. But he does, in an oblique way, suggest that he wants to see more federal civil litigation in one area--RICO, the Racketeering-Influenced Corrupt Organizations Act. (RICO was enacted to address organized crime, but by its language may reach a number of different kinds of patterns of conduct involving criminal activity.) Kerry, who was once a prosecutor, suggests that one step he would take as president is to propose that RICO be expanded so that "investors who have lost money due to late-trading schemes" can sue in federal court to recover their losses.

Obviously, Kerry's view on RICO, in particular, does not tell us much, if anything, about his true feelings about civil litigation in general. What this view does tells us, though, is that Kerry understands that Americans are quite angry about corporate fraud.

Wesley Clark's Views on Tort Reform

For obvious reasons, Wesley Clark has had the least opportunity of all the other candidates to experience the civil justice system firsthand. Thus, it is very hard to predict from his background and past actions what, if anything, he thinks about the civil justice system.

Clark's website does, however, have a section devoted to civil justice. It reports that Clark opposes the major recent Republican tort reform efforts to cap medical malpractice awards and to shift class actions from the state to the federal courts.

The site suggests that Clark, or whoever is advising him, understands what is at stake in debates over tort reform. It notes that President Bush described the medical malpractice system as a lottery where plaintiffs enter hoping that they hold "winning tickets" -- and strongly counters this view of our system. As Clark points out, it is not true -- as Bush suggests -- that patients who sue and win are not really suffering, and thus feel like lottery winners when they get compensated. More likely, the patients breathe a sigh of relief that the jury recognized that they were truly injured, and compensated them accordingly.

Clark is also right to the extent that he suggests that if our medical malpractice system does need to be reformed, it is because many of the injuries suffered by plaintiffs were not caused by anyone's carelessness -- and thus, it is unfair for corporations to pay the bill for these injuries. (Yet on the other hand, it would be tragic if plaintiffs were left uncompensated because they lacked health or disability insurance.)

Overview of the Candidates: Democrats Who See Some Need for Tort Reform

This brief review of the four leading candidates tells us as much about the current state of debate over tort reform in the United States, as it does about the differences between the candidates.

This composite picture of the Democratic Party shows that the party is not unaware of the need to reform parts of the civil justice system. Even the positions taken by Dean and Edwards--though the two are members of professions that view each other as natural enemies--are nuanced and reasonable, and not so wildly dissimilar.

The message I take from the candidates positions, then, is an optimistic one: If the special interests that control the Democratic Party can be kept at bay, it is possible that the party may be able to develop a true "common sense" approach to tort reform.


Anthony J. Sebok, a FindLaw columnist, is a Professor of Law at Brooklyn Law School, where he teaches Torts, among other subjects. His previous columns on tort law can be found in the archive of his columns on this site.

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