Friday, June 22, 2007


Federalist Fred eats a Tort

It appears Fred Thompson is starting to show what his agenda will be as president, and that agenda is decidedly federalist.

his radio commentary yesterday, Fred was applauding the state of Texas for their solution to rising medical malpractice insurance rates (bold parts added by me):
"Out-of-control medical malpractice lawsuits have been a problem in many parts of the country for a long time. Malpractice insurance costs can be driven so high, that doctors and insurance companies flee to more reasonable business climates. With too few doctors, it’s the patients who suffer the most.

In the past, those who want to solve this problem have tended to ignore our Federalist tradition. They've driven right past their state houses to their airports and flown to Washington to ask for national legal remedies. Fortunately, now we're seeing that states can take effective action themselves.

Only a few years ago, Texas was losing doctors fast. Rising malpractice insurance rates were fueling what analysts called a crisis. In some parts of the state, emergency wards were closing and residents were facing long trips for even basic medical care. The doctors who were most likely to leave the state were those hit hardest by malpractice insurance premiums -- the "high risk" specialists such as neurosurgeons, cardiologists and obstetricians.

Then, in 2003, Texas passed Prop 12, capping non-economic damages in medical malpractice suits to $750,000. $250,000 of that applied to physicians. There were no limits put on damages for medical expenses or economic expenses such as past and future lost income.

At the time, there were only four insurance companies left in Texas willing to cover doctors, and they were scheduling rate increases. Now 30 insurers are doing business in the Lone Star State and others are moving into the market. Rates have fallen on an average of more than 20 percent. Malpractice lawsuits have fallen 50 percent,

So many doctors have now requested Texas medical licenses that thousands are backlogged and an emergency appropriations was passed to help the Texas Medical Board speed up their processing. Now, other states are considering similar legislation to stop the loss of their own doctors to Texas. I consider this a small but important victory for the principles of Federalism.

Mind you, Fred is not opposed to federal solutions where needed. Back on May 24th in his radio commentary, Fred had this to say about medical records:
If a used car salesman can check your credit in minutes, doctors ought to be able to pull up your vital records. If you can trade stocks online, doctors ought to be able to chart blood pressure or cholesterol levels over the years instead of making decisions based on a couple of recent readings. If the police can find outstanding parking ticket in seconds, emergency medical workers should be able to get information to save your life, or your child's, as easily. If you can access your bank account online, you ought to be able to check your own medical records, and fix them if they're wrong.

President Bush has been asking for such a system, with proper privacy protections, since he took office. Last year, both the senate and the house passed bipartisan bills designed to help bring our medical records into the modern era, but the differences between the two versions were never reconciled and nothing came of them.

It's pretty clear that this is one of those wheels that isn't going to get any grease until it starts squeaking.

The fact that Fred is not opposed to federal solutions, where they are called for, is important to consider within the framework of tort law.

Back in April,
Ramesh Ponnuru over at National Review took Fred to task for his views on tort reform:
"Thompson didn’t oppose all types of tort reform, as some outlets have reported. When President Clinton vetoed the Securities Litigation Reform Act, Thompson voted to override the veto. (John McCain voted with Clinton.) After Sept. 11, he voted to protect businessmen from liability for terrorist attacks. And he voted for class-action reform, too.

On some issues, however, he voted against tort reform. In most of these cases, he objected to the reform on federalist grounds. For example, he voted against a federal reform of medical malpractice law, arguing that states should enact any needed reforms. There is a strong argument for Thompson’s position. If a state makes it too easy to sue doctors, most of the costs of that policy will fall on the state’s own residents. Doctors, especially in specialties that tend to draw litigation, may leave the state for more welcoming jurisdictions. So there is a built-in incentive for states to get the policy right.

But sometimes the incentives don’t line up so conveniently. The worst jurisdictions effectively set product-liability law for the entire country, because they apply their standards to companies everywhere. The litigation explosion is a symptom of a breakdown of federalism, which wasn’t meant to let the judges of Madison County, Illinois, regulate interstate commerce.

While Fred did respond to Ponnuru, his response did not get to the heart of Ponnuru's argument, specifically about product-liability law in the last paragraph above. Fred's response:
"That's why I suggested to Mr. Ponnuru that if conservatives use Federalism as a tool with which to reward our friends and strike our enemies, instead of treating it as a valued principle, we are doing a disservice to our country -- as well as to the cause of conservatism."

Fred also responded to Ponnuru on the National Review website, and again did NOT respond to the product-liability issue.

Ponnuru responded to Fred's response, although Ponnuru did not bring up the issue again either, unfortunately.)

When lawyers farms localities, looking for the most favorable place to file a product-liability lawsuit, are they not, in effect, performing interstate commerce?

Fred needs to be careful about how he applies the federalist principle. If he is willing to accept federal oversight of medical records, but NOT federal product-liability tort reform, then he runs the risk of appearing sympathetic to tort lawyers.


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