In his State of the Union address, President Barack Obama said he wants to "look at ... medical malpractice reform, to rein in frivolous lawsuits." His budget, released this week, names "reform our medical malpractice system" as one of its tools for finding savings in the federal health budget.
Does this mean Obama supports doing what House Republicans are trying to do, and what several states have done, in limiting noneconomic damages in medical malpractice lawsuits? Of course not.
And just to make that clear, Obama’s aides explained to the Los Angeles Times after his big speech that he strongly opposes malpractice caps. Trial lawyers did not give 99 percent of their political contributions to Democrats in the 2010 election only to have Obama stab them in the back.
Obama has very different ideas from Republicans on how to deal with the $56 billion in costs that malpractice adds to our health care system each year. But his misdirection could easily fool you.
A graphic in The Washington Post this week stated, incorrectly, that Obama’s budget includes savings on health care costs from "limiting awards in malpractice lawsuits." If you look to Obama’s budget, there is no mention of caps.
There was no mention of them in his speech either. So he has created enough ambiguity about his position to fool some of the savviest observers in Washington.
To understand what Obama is up to, look back to 2004, when the presidential ticket of John Kerry and John Edwards did precisely the same thing. Edwards, one of the nation’s top malpractice lawyers during the mid-1990s, had made millions selling dubious medical theories to North Carolina juries.
The campaign’s "Victory Committee" was co-chaired by Fred Baron, a former president of the Association of Trial Lawyers of America. Like Obama, this extremely trial lawyer-friendly ticket endorsed a reform that sounds tough — to punish lawyers who file "frivolous" malpractice suits — but it is not.
Here’s the catch: None of Edwards’ cases, and very few malpractice suits in general, would be considered "frivolous." Any lawyer can file a frivolous suit against a dry cleaner, but they rarely do so against well-funded and lawyered-up malpractice insurers.
The problem in malpractice law is not frivolity, but the disproportionately large damage awards (and lawyers’ fees) that juries give when there are no limits. Any limit on "frivolous" suits is meaningless in this context. And that is the whole point.
In addition to a meaningless crackdown on frivolity, Obama has endorsed something the health care reform bill refers to as "alternatives to current medical tort litigation," aka special "health courts" for malpractice cases.
These are provided for in Obamacare as state-level experiments, but they will not reduce malpractice costs. In fact, "health courts" could actually increase the number of malpractice cases.
Because they are, under law, required to let plaintiffs "opt out or voluntarily withdraw" and go back to the real courts to sue, they will not improve on the existing system. More likely, they will make it less expensive for plaintiffs’ lawyers to litigate minor medical disputes that do not normally enter our legal system today.
Ultimately, Obama will embrace any malpractice reform that does not stop the gravy from flowing to plaintiffs’ lawyers at the expense of health care consumers.
David Freddoso is The Washington Examiner’s online opinion editor.