Should Tort Reform Be Part of Health Care Reform? A ‘Liberal’ Thinks So
This is a discussion on Should Tort Reform Be Part of Health Care Reform? A ‘Liberal’ Thinks So within the Law News forum, part of the FORUM INFORMATION category; Lanny Davis , a former lawyer in the Clinton White House and current partner at McDermott, Will & Emery has, ...
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|Mar 5th, 2010, 07:30 PM||#1|
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Should Tort Reform Be Part of Health Care Reform? A ‘Liberal’ Thinks So
Lanny Davis, a former lawyer in the Clinton White House and current partner at McDermott, Will & Emery has, since the middle of 2008, written a column that he calls “Purple Nation” for a variety of publications, including the Washington Times, Huffington Post and The Hill.
Purple Nation represents a rarity in our uber-polarized political world. In it, Davis attempts to bridge the gap between right and left, and proposes solutions that are decidedly centrist. Along the way, he’s taken heat from all sorts — from conservative Republicans to liberal Democrats to members of the Fourth Estate. (Salon’s Glenn Greenwald last year in this column accused Davis of “limitless whoring” and being an advocate for special interests masquerading as a political pundit.)
In any event, we’ve found many of Davis’s columns throughout the months provocative and refreshing, largely because they attempt to reconcile, to bridge, to do something other than broadcast, at full volume, across an ever-widening gulf.
So we were curious to hear his thoughts on whether tort reform should be part of the health-care bill. We came across this article in The Hill, from Wednesday, in which Davis talks about health care. His brief mention on tort reform, however, we found, well, more than a little uninspired. Wrote Davis:
On the complicated issue of tort reform, perhaps the best compromise for now would be the same type of bipartisan blue-ribbon commission Obama has just established for budget reform.A blue-ribbon commission? Let us guess, perhaps one chaired by George Mitchell or Sam Nunn? How predictable! How empty! How lame!
Unsatisifed, we got Davis on the phone with the goal of pushing him on the issue of tort reform, which has recently been rumored to be one of many Republican proposals in the debate that President Obama is considering adopting.
The following is an edited transcript:
Hi Lanny. So, let’s talk tort reform. Frankly, we thought your suggestion in The Hill was a bit of a cop-out.
I wouldn’t call it a cop-out, exactly. I’d call it a ‘wimp out.’ It’s not the greatest excuse, I know, but I didn’t have much space to talk about tort reform. I do, however, think assembling a bi-partisan commission to examine the issues is a good idea, though. The issues are incredibly complex.
A ‘wimp-out’? Okay. Well, we’ll give you the space you need here. So where are you on the tort-reform debate?
I’m about to offend everybody who considers him or herself a liberal Democrat, which I consider myself. Tort reform is the third rail among liberal Democrats. It’s unmentionable. The Republicans have their third rails, too. I suppose tort-reform on the left is a little bit like raising taxes on the right. If you’re a conservative Republican, you just can’t go there.
Really? How does that manifest itself?
If you’re among a group of liberal Democrats and you utter something in support of medical malpractice reform, it’s akin to saying you care nothing about the deaths and horrible tragedies done by negligent doctors. In liberal circles, this happens every time I argue that something needs to be done because my doctor can’t afford to pay his malpractice insurance, that there’s this wonderful doctor who I’ve known for dozens of years, makes house calls and knows the names of all my children, who’s about to go out of business.
The liberal response, of course, is that it’s the fault of price-gouging on the part of the insurance companies. But when I say that to my doctor he tells me he has to do 22 different tests that are complete [bull] because his insurance company requires 22 tests in order to get reimbursed.
Why do you think liberal Democrats feel this way? Is it because they’re so close to the trial-lawyer lobby?
No. I don’t. No one’s giving me money to be quiet or vote their way. It’s a social and cultural pressure. If I’m in the world of liberal purists, you can’t start a conversation on tort reform without being viewed as hard-hearted. It’s a cultural third rail. Of course, it’s a political third rail if you’re running for office, because you do depend on the contributions of the trial bar.
Okay, so where do you stand on tort reform generally?
I’m for it. I am. And I really think that it can’t be achieved by Republicans or conservatives alone. This is Nixon-goes-to-China time for Democrats. Liberals are the ones who can get this done, much like Nixon was the only one perceived as hard enough on communism to get away with a trip to Red China.
But for now, it’s unspeakable in liberal circles. We have to start making it speakable.
Okay. Let’s drill down a little bit. What specific sorts of reform would you want to see?
Well, keep in mind, we’ve got two competing interests here. On the one hand, you’ve got to take care of malpractice victims while also taking care of doctors without pushing them over a precipice or, short of that, making them practice defensive medicine, which is at the heart of the inflationary pressures of the health care system.
I think a good place to start is to look at whether juries are making decisions on non-economic damages. Economic damages are as simple to calculate as looking at a bill and punching numbers into a calculator. If I’m injured and it costs me money to get fixed, well, those damages are recoverable.
The problem in the system comes when you move beyond compensatory damages and into the realm of punitive damages. That’s when you penalize a doctor for gross negligence or recklessness.
Now, I understand the rationale behind punitive damages. You want to be able to set an example, to deter bad behavior. But I’ve come to question the degree to which punitive damages really deters bad behavior. How do we know they do? How do we know that an out-of-whack penalty is going to deter the next doctor from being negligent?
After all, negligence is not an intentional act. It’s an unintentional act. If it is intentional, then it moves into the realm of the criminal, and that’s really not what people are worried about here.
So, one idea is to have lay juries not make these decisions, develop a system in which medical experts are judging the evidence and are limiting non-economic damages. Now, look, it’s a horrible term in the world of trial lawyer lobbyists, but it’s this: cap. A cap on non-economic damages. We’ve got to talk about reasonable caps.
But to me, perhaps the most important idea of all is to eliminate trials altogether, to go to a mandatory arbitration system. You’d have arbitrations with limited periods of discovery. Each party would propose a figure and put it on the table. It’d be a little like the way it works in Major League Baseball arbitrations. The arbitrator at the end of the day can pick one number or the other. It keeps either side from putting forward a number that’s way too high or way too low.
But look, this isn’t easy and I have a lot of questions. I don’t know how much the tort law issue contributes to the overall costs of medical care. I know that in many states that have enacted tort reform, the premiums are just as high. That’s a counter-fact. It’s something I need to look into further.
Okay. Anything else you’d do?
There is. I really believe that some plaintiffs’ lawyers misuse the courts with frivolous lawsuits.
The problem is this: You can file a suit that doesn’t have much substance to it, and you’re not violating your ethical duty as a lawyer so long as there are a couple legitimate claims in it. There’s no cost to filing a frivolous lawsuit. And so there’s no reason not to do it. The bogus lawsuits that I’ve seen — the false claims cases, the securities fraud cases, the cookie-cutter complaints — all this has proven to be enormously lucrative in recent years. If you get to be lead plaintiff in one of these cases, you can get a settlement and retire forever. You know that the insurance company isn’t going to risk going to trial, and you’re going to get a big settlement.
I’m not exactly sure what the best way to do this would be, but I’d look seriously at fee-shifting. In England, when you lose, you pay the other side’s legal fees most of the time. Here, you can ask a court to award legal fees after a win, but it hardly ever happens. So I think we need to look at this, at why it works in England. They’re not a bunch of right-wingers over there in England. Not by a longshot, but they’ve managed to make it work.
One idea might be that if you get knocked out early, at the motion to dismiss phase, then you have to pay the other side’s fees. I’m not exactly sure what the right place to draw the line is here, but I think it’s important we look at the facts and move away from ideology.
So if President Obama came to you, you’d urge tort reform? Lanny, you’re a self-described liberal Democrat!
I’d go farther than that. I’d say, Mr. President, our legal system is broken, because the plaintiffs’ bar misuses it. You need to fight this and fix it. A Republican can’t do it. This is Nixon to China.
You know, somewhere I bet former Clinton administration folks are kicking themselves for not having started with welfare reform in 1993 or 1994 before moving to health care. Health care might have been easier.
It’s the same thing here. I think if the President is willing to say to [Senators Lindsay] Graham (R-SC), [Orrin] Hatch (R-UT) and [John] McCain (R-AZ) ‘look, guys, I’m willing to take on my base on this issue,’ he’s going to get mileage out of that. People get that. It’s why Clinton got so much traction running up to the ‘96 election — because he took on his base. He took on organized labor on NAFTA and also tackled welfare reform. At the time I was totally against welfare reform. I thought it was hard-hearted and it turned out I was completely wrong. The welfare system was totally wrong. We were hurting people by providing incentives for them to stay out of the workforce.
You don’t sound so “Purple Nation” here, Lanny. You sound more “Red Nation.”
Well, no. I’d also say to Graham and Hatch and McCain, ‘what are you going to do about the kid who is disfigured by a grossly negligent doctor. How are you going to compensate him for the suffering he’ll have his entire life?’ There has to be a system that takes this situation into account.
I think conservatives would say, look, if you get a lean and clean [legal] system in there, it’s something we’d be able to work with. But you just cannot solve any problem this big without an honest dialectic going on with facts as the fuel, not ideology. I think Obama and McCain need to go behind closed doors and work something out, out of sight of cameras and C-SPAN.
So tell us. With your ‘Purple Nation’ push, are you picking up friends on the other side of the aisle or just losing them on the left?
I’m just losing them. When I first started doing this, my son [and CBS college basketball analyst] Seth called me up and said ‘Dad, don’t Google yourself. It’s getting ugly out there.’ I figured well, if you’re hated that much by the left and right, you must be doing something right.
And how about the Greenwald piece? What are your reactions to that?
I had several chats with Glenn after the piece ran. I was very upset with the article, which was inaccurate in many places. The fact is that I’m working for clients when I’m working as a lawyer. But when I’m writing a column or giving an opinion publicly, I’m doing this for myself. He attacked me personally, attacked my integrity, which I thought was unfair.
Are you currently doing any work for anyone with an iron in the tort-reform fire?
No. I don’t lobby for or against tort reform.
You recently left Orrick for McDermott Will. Why?
The short story is that I wanted to do more lobbying, and McDermott offered me more than I’d been doing at Orrick. They gave me and a partner a unique opportunity to start a unique practice on representing clients on three fronts: litigation, media and lobbying. Our practice is called the legal crisis and strategic communications group.
Okay. Well, thanks much for taking the time.
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