I’m against tort reform in the way some people are against gun control.  I’m just a crazy First Amendment absolutist who believes that the right to redress grievances with my government should actually means I have a right to redress grievances with my government.  Call me crazy, but I think the wording is pretty damn clear.  Even clearer than the stuff about militias and “the people”.

Actually, you should call yourself a Seventh Amendment absolutist.  Which I am.

BASKETBALL!

Not to be all pedantic about this stuff, but for some reason I’m up early and I have nothing better to do.  When you are a victim of medical malpractice, your beef’s with the doctor, not the government.  Hence the Seventh Amendment reference—the often-forgotten Seventh Amendment purportedly guarantees your right to have disputes with other people (such as doctors) heard by a jury, and to have the jury’s decision be the end of the story.  Your right to sue the government (as opposed to a company or private individual) for damages is another story . . .

. . . and here I go.  It’s not a First Amendment issue.  The First Amendment protects your right to bitch at the government, but it’s got nothing to do with your right to sue the government for damages in court.  In fact, the old rule (called “sovereign immunity”) was that you couldn’t sue the government for damages like, ever, unless the government consented to submit itself to the court and allow you to sue it.  Congress has enacted a set of laws, known as the Federal Tort Claims Act (FTCA), that establishes the circumstances under which you can sue the Feds for damages if, say, a federal employee runs you over with a car or a federally-employed doctor (like a VA doc) screws up a procedure.  But if the FTCA wasn’t there, you’d be SOL.

Seventh and First both, then.  I get to complain to the government, the government hears the complaint, then both parties get a chance to say their piece, the jury and/or judge decides the merits, the dispute ends with one side or the other or neither prevailing, and that’s how it’s supposed to be.  The Seventh Amendment is the right to a jury, but the First Amendment is what says the government can’t put up huge roadblocks to a trial happening in the first place.  The right to petition government to redress grievances only matters if it’s possible to have a trial, while the right to a jury trial isn’t quite as important as the right to have a trial in the first place.  Tort reform is a way to undermine that right.

I wasn’t saying the Seventh Amendment isn’t important by any means (since it really is vital to our society,) but it is quite dependent on a right to a trial being there in the first place.

. . . the first amendment’s got nothing to do with your right to be heard in court.  Trust me on this, really.  I’m a lawyer with a particular interest in these things, and believe me, if the argument could be made I’d have made it at some point or another.

So just to be clear, we have a right to a jury if there is a right to have access to the courts, but the right to access the courts doesn’t come from our right to petition the government (of which the courts are a part) but instead from a right to have a jury decide upon the facts heard in trials that happen just because something something mumble mumble.  Plus, private people and entities that aren’t governments can be sued because of this right to a jury, but governments can decide whether or not they want to be sued.

I’d like to say I understand, but I just don’t.  I really believe you, nolo, but there’s a certain amount of crossing information that isn’t getting to me.  I say the right to petition government to redress grievances encompasses the right to complain about government action, things a company does, things that just happen (like winds and erosion,) or things someone does or does not do.  My petition can be in the form of a letter to a Congressman, shouting at the President, calling the police (and hoping for a public lawsuit where the government does the suing,) or in a private lawsuit.  But you say that’s not always so.  I don’t believe the Congressman is obliged to read the letter and respond within a certain number of days, nor do I believe I can yell just anything at the President, but I do think the courts have a duty to at least see if there is merit to claims and act accordingly (which may include asking the aggrieved to fuck off) or at least redirect the complainer to the appropriate venue.  Call me crazy, but that seems to be part of our rights somewhere.  And I see that somewhere as the First Amendment.

Also, (and it’s nice to go back to the subject) it sounds like socializing healthcare is the same as tort reform, since doctors are then agents of the government and can’t be sued unless the government says so.  It’s so wonderfully simple how conservative memes fall apart with the simple application of truth.  I remember reading that HMOs can only be sued for the cost of the procedure not provided, and not the damage caused by the lack of the procedure.  So tort reform has already failed to rein in healthcare costs, so why this is expected to work now I can’t imagine.  I guess the Republicans decided they needed to have some sort of a proposal, and this one was the only thing they could agree on.  They’ve tried saying that “only” 10 or 13 million are uninsured, but I guess someone told them that’s still a hell of a lot of people.  They also tried saying that it was socialism, which people on Social Security and Medicare and Medicaid and Veterans medical care don’t seem to mind too much.  Attacking the Federal Government just isn’t as easy a sell to the general public as it seems when surrounded by mobs of Yes Men who only know two things about government: they love their flag and hate their taxes.  Most thinking people know that government is worth it to a good extent.  So now it’s time to pick on the lawyers, but I can only wonder for the millionth time: why don’t those supposedly frivolous lawsuits always lose when they come to trial?  It’s almost as if those frivolous lawsuits aren’t always frivolous, but any Republican could tell me that’s crazy talk.

nolo, help me understand this better. The Seventh mentions that the jury’s findings of fact cannot be overturned. Doesn’t that still mean that the judge can decide the jury has awarded too much to the plaintiff, and lower the award, perhaps even to $1?

The confusion you’re experiencing, I think, is between the political notion of “petition” (i.e., engage in political speech) and the legal notion of “petition” (i.e., filing a lawsuit).  They’re not the same thing.  Consider this—the same Founding Dead Guys who came up with the First Amendment and its guarantee that you can petition the government also drafted a Constitution that created a federal court system that strictly limits what kind of cases the federal courts are even allowed to hear.  It’s true!!  Article III of the Constitution, which deals with the judicial branch of federal government, requires exactly one court—the Supreme Court—and it grants that court only a limited range of issues that it can consider.  It allows for (but arguably does not require) lower courts, but their jurisdiction is limited as well.  Under the Constitution, federal courts only get to hear (a) federal constitutional issues and issues of federal law; (b) cases involving foreign diplomats; (c) maritime cases; (d) cases where the federal government is a party; (e) cases between two states; (f) cases between citizens of different states; (g) certain specific types of land right cases; and (h) suits against foreign governments.  That’s it.  If your dispute doesn’t fall within one of those categories, it doesn’t go to federal court.  As for courts having a duty to decide the merit of claims and act accordingly, yeah, they have that duty—but if you bring a claim that’s not within their jurisdiction (and that would include purely political issues), what they’re going to do is tell you they don’t have the jurisdiction to hear the claim, and kick it out on those grounds.  In fact there is a whole tradition, which is built into the whole “separation of powers” idea, of courts declining to consider questions that are “political” rather than legal in nature.  The courts simply aren’t set up to handle the kinds of issues that the First Amendment addresses. 

As for congresscritters that don’t read letters, you’re right:  The First Amendment doesn’t compel them to do so.  But the First Amendment guarantees our right to send them, and if congress-peeps fail to read and respond to enough of them, they get voted out of office.

Back to the subject!!!  Yeah, the comparison between “socializing” health care and tort reform has a lot of irony-value to it.  Crony capitalist conservatives are all in favor of government regulation when the “regulation” basically protects them from any accountability, but not so excited about it when it might protect ordinary folks . . ..  But the HMO thing’s not entirely true, I don’t think.  If all you sue for is breach of contract, sure—all you’ll get is the value of the care they should have provided.  But when an insurance company breaches its contract with no reasonable excuse for doing so, in most states you can also bring a bad faith claim that will allow you to recover for the additional damages you suffered as a result of the contract breach.  There was a big case here in Ohio a few years ago—article here—where Anthem got nailed for bad faith in denying benefits to a woman who died of brain cancer as a result.  Huge damage award, including beaucoup bux in punitive damages.  The breach of contract claim netted only a couple of grand, but the jury awarded over 2 million in compensatory damages on the bad faith claim—which were the damages for the poor woman’s pre-death suffering, and the family’s damages for her death.  Of course, depending on the law in any particular state, YMMV . . .

hi asdf—the important qualifier on the Seventh Amendment’s prohibition of re-examining jury findings is that phrase at the end of the sentence:  “according to the rules of common law.”  There are all sorts of bases upon which a court can review a jury’s findings under common law—though the standards are pretty strict, since the general rule is that the court’s supposed to be deferential to a jury’s findings.  A verdict can be tossed out if it is “against the manifest weight of the evidence,” for instance, or if the jury totally ignored the law (there are different issues on this in criminal cases, but I’m not going there right now).

When a court reduces a jury’s damage award, it’s actually doing an old common-law trick called “remittitur.”  If a judge thinks the jury’s damage award is too high, what the judge will do is enter a post-trial order that says, “I think the damage award is too high, and that it should have been $x instead.  Plaintiff, you can either accept this reduced damage amount, or I am going to order a new trial.”  The plaintiff then has a choice—take the lower amount, or take a shot at another jury, or take an appeal from the trial judge’s post-trial order.  So that’s how that works.

Does anyone have any links to studies of how tort reforms influence health care costs? I saw the article at the Washington Independent, but it was low on citations of actual academic studies, so if anyone has a few on hand, I (and I’m sure many others) would appreciate the information.

PS 3letterjon—health care plans that are subject to ERISA (the federal law that covers most employer-provided health care plans) are protected from the bad faith claims I described, which just figures . . .  See?  I learned something today!!

Jerry—Salon had an article earlier this year with links to a number of resources on this issue.  Link here.

Here’s an even better source of quick info that one of Andrew Sullivan’s guest bloggers just posted . . .

Thanks, folks. A few things I found while googling:

A study by the Harvard School of Public Health and a book by Tom Baker.

Thank you, nolo.

Saw the video of a Townhall in Missouri where upon being asked about tort reform as the end all and be all of reforming healthcare, the Rep said,

“Two years ago in Missouri, we enacted the most stringent tort reform in the United States.” (or something to that effect.)

The wing nut crowd cheers.

Until Rep finishes with, “But you may have noticed that your thealth insurance premiums didn’t go down at all.”

But unless we fight for it, none of us will have true healthcare.

In five days, FireDogLake and partners raised nearly $400,000 for 60 progressive members of Congress who agree to draw a line in the sand over a public plan.

An object lesson for Republicans, Blue Dogs. You, too, can offer carrots to these progressive politicians at ACT Blue:

http://www.actblue.com/page/theytookthepledge

Jesse:

Palin didn’t write that FB post on tort reform. It’s way too coherent.

There is no way that the person who wrote Palin’s babbling resignation speech, and the even worse one delivered on her final day in office (e.g. Palin herself) could possibly be the same one writing her FB posts unless Palin’s writing skills took a quantum leap forward in the past 30 days.

Palin’s FB materials are clearly being written by a policy wonk on Palin’s staff, then OK’d by her before being posted.

I’m for tort reform in the same way I’m for gun control—it’s not particularly at the top of my list of priorities, and it doesn’t mean the same thing to me that it does to a lot of other people. So, for example, I think that reform should focus on increasing sanctions for attorney misconduct and SLAPP filings, and that arbitration and choice-of-venue clauses should be taken as prima facie evidence of intent to breach.

But insurance premiums (which are only a teeny part of medical costs anyway) are so overwhelmingly dominated by the performance of insurance-company portfolious that duh.

the only relevant variable in a practitioner’s liability is the income of the person they’re operating on,

So, with the threat of a big malpractice award taken away, doctors would have less incentive to give Grandma quality care, because Grandma is not earning the big bucks.

I think I would rather have rationed care than crappy care, but that’s just me.

Exactly, Hector—that’s why the kind of tort reform caps that tort reformers advocate are so pernicious.  They’re always caps on what are called “noneconomic” damages—stuff like pain and suffering, loss of quality of life, the things that can’t be quantified in terms of a person’s earning potential.  Which makes it cheaper to hurt the poor, the disabled, and retired people.

It doesn’t make it cheaper. It makes it free.

“Tort-reform” advocates are not going after how much money the jury awards; they are going after your ability to hire a lawyer in the first place. Remember that in malpractices cases, the plaintiff’s attorney essentially works on commission. This means that if a drunk doctor kills a patient on the operating table, the attorney you want to hire has to make this calculation: after I front all of the fees and costs in a lengthy, complicated case where the other side is getting paid by the hour by a big insurance company, estimating the likely settlement or verdict, am I going to make enough money to pay the bills?

When the patient is a middle-aged man who was in good health, who had a good-paying job and supported young children, there are high economic damages. The case is “worth more”. When the patient is Grandma, who had other health problems and whose kids are financially self-supporting, the damages are almost all “non-economic”. The case has “low worth”.

Malpractice attorneys of my acquaintance tell me they reject probably 90% of the cases they get. Actual studies of malpractice cases suggest that only 2% of people affected by malpractice ever sue. You kind of have to wonder what, exactly, “tort reformers” think the problem is, and the answer is that they have a deep moral belief that lawsuits are wrong.

As an attorney with a firm that does medical malpractice work, I concur completely with mythago.  That’s exactly the calculus we have to do with our cases.  It’s very sad.