Medical malpractice lawsuit promises 

In last week’s State of the Union address, President Barack Obama seemed to support medical-malpractice reform, and Republicans, legal reformers and the Chamber of Commerce cheered. Such reform — which could improve health care results, save taxpayers billions of dollars a year and save the economy as a whole even more — has consistently been blocked by Democrats and special-interest trial-lawyer lobbying.

But I am skeptical that Obama’s olive branch has much meaning. The president’s phrasing was distinctly President Bill Clinton-esque: “I’m willing to look at other ideas to bring down costs, including one Republicans suggested last year — medical malpractice reform to rein in frivolous lawsuits.” Because all Obama is promising is a willingness to “look at” reform, he is not obligating himself to do anything.

The restriction of “frivolous lawsuits” is not all it is cracked up to be, at least the way Democrats tend to think of it.

When a doctor or a layperson talks about “frivolous lawsuits,” they use the term colloquially to include the 40 percent of medical malpractice lawsuits that are meritless. But when Democrats say they are for restricting “frivolous lawsuits” — as presidential candidate John Kerry did in 2004 — they use a narrow, technical definition of “frivolous” that affects only a tiny number of lawsuits, most or all of which are already covered by existing laws.

This would not be the first time Obama has made noises about legal reform that have been mainly for show.

In his presidential campaign, Obama sold himself as a bipartisan willing to buck the Democratic Party’s special interests, citing his vote for class action reform in 2005. But even with this very basic, good-government reform, then-Sen. Obama repeatedly voted for trial lawyer-supported amendments that unsuccessfully attempted to eviscerate the bill.

The media never called Obama on his “I was against-it before I was for it” voting record, and he was able to portray himself as a centrist.

We saw it again earlier this year: Obama published an op-ed in The Wall Street Journal calling for regulatory reform, and announcing an executive order that would, in part, “root out regulations that conflict, that are not worth the cost, or that are just plain dumb.”

But the president’s executive order had a giant loophole — regulatory agencies were allowed to rationalize even the most inefficient job-killing regulations by reference to incommensurate “values” that would trump any meaningful cost-benefit analysis.

Overall, the Obama administration’s record on legal reform has been poor. The Solicitor General’s Office has asked the Supreme Court to expand product liability and securities litigation, and Obama has signed several bills that expand liability.

All this benefits trial lawyers at the expense of jobs and the economy.

The medical malpractice bill Republicans have created is not perfect. For example, its “collateral source” provisions, which require damages to be offset by insurance recovery, act to punish plaintiffs for buying insurance. And unlike product liability or nationwide class actions, medical malpractice is more of a local than a federal issue: If Pennsylvania or Illinois want to chase their doctors away to Texas with a bad legal environment for medical malpractice, why should the federal government care?

Obama may be sincere about the need for legal reform. But before we give him credit, legal reformers should insist on something more than words.

Theodore H. Frank is an adjunct fellow at the Manhattan Institute Center for Legal Policy and editor of its Web magazine, PointofLaw.com.

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