I noticed in this morning’s Washington Post that the graphic on Obama’s budget included “limiting awards in malpractice lawsuits” among the ways Obama saves money in his new budget. This is simply not true — the newspaper has been taken in by the president’s rhetorical sleight of hand.
If you look to the budget itself, there is no mention of such caps — only vague talk of “reform” to the malpractice system. The two are most certainly not the same. Obama strongly opposes caps on certain damages in malpractice lawsuits. As the L.A. Times reported two weeks ago:
When he talks about reining in “frivolous” malpractice suits, as he did in his State of the Union address, Obama is using language approved by the the American Association for Justice. (Still, note their “don’t throw me into that briar patch” quote at the end of the L.A. Times article). Obama is talking about the same malpractice proposals that John Kerry and malpractice lawyer John Edwards backed in 2004. These limits on “frivolous” suits are meaningless because very few of the malpractice suits filed today would be considered frivolous.
You can file frivolous suits against your local grocer or dry cleaner and put him out of business, but you can’t do that against a malpractice insurer with a massive legal team and an unlimited budget. The problem in malpractice law is not frivolity, but disproportionately large damage awards, which in turn force disproportionately large settlements (and disproportionately large contingency fees).
When the White House talks about “arbitration systems,” don’t expect it to accept any form of abritration that is binding. And as for special “health courts,” the White House will not likely approve of them unless they are strictly optional for plaintiffs.
Some conservatives like the idea of special medical courts, but they could easily cut either way. Obama will back them as long as plaintiffs have the right to pull out and go to real courts at any time. These courts have the potential to make it easier and less expensive for trial lawyers to litigate cases they would not otherwise take because they are less lucrative. They could well result in more, not fewer malpractice cases, over medical disputes that do not normally enter our legal system today. As long as it doesn’t diminish their ability to exploit the shortcomings of the current system in the courts, AAJ will be on board.
