Sarah and Tort Reform

I have a different perspective on this, as set forth in my letter to Mrs. Palin, as follows:

Dear Governor Palin:

I must respectfully part ways with you on this issue. We both believe in limited government, the primacy of the individual over the state, the sanctity of the Constitution, and the power of the free market. We both believe in the power and strength of the ordinary citizen. So please explain to me how those principles can be squared with the idea of the federal government setting universal limits on the amount of damages that can be awarded by a panel of 12 ordinary citizens sitting as a jury?

I am also troubled by the term “frivolous lawsuit.” I understand your personal concern about the flood of ethics complaints that were filed against you. However, those were truly frivolous as they were all dismissed. However, how can a lawsuit against a negligent doctor or hospital be “frivolous” if it survives the rigorous pre-trial process, well paid and highly skilled insurance defense lawyers, often skeptical judges, and then a trial by jury? If the jury then awards significant monetary damages because the plaintiff was badly injured, then by definition that case is not “frivolous.”

Furthermore, there are other, less intrusive ways to minimize the possibility of “frivolous” lawsuits. For instance, here in Pennsylvania we have a rule that requires a “certificate of merit” in all professional negligence cases, including medical malpractice cases. If the case has not been reviewed by an appropriate and qualified expert, it gets tossed before it even sees the light of day.

I must also question some of the studies you cite. There are numerous studies that show that malpractice costs add very little to the cost of health care. As for so-called “defensive medicine” I hear about this all the time; but have seen little actual evidence to show that doctors routinely order unnecessary tests in order to avoid malpractice suits. Indeed, wouldn’t it be better for a doctor to order an additional test just to be certain there is not a more serious problem going on with the patient. Based anecdotally on my own experience as a personal injury lawyer, I find that very often patients/clients have to literally beg a doctor to order MRIs, EMGs etc. I also believe that if “unnecessary” diagnostic tests are ordered, it is because of lucrative reimbursement rates, not “defensive medicine” concerns. One prominent hematologist here in Pittsburgh told me he gets $5.00 for each patient consultation, but his clinic receives $10,000.00 a day for interpreting blood studies.

Your Facebook message also discusses reducing attorneys’ contingent fees and imposing a “loser pays” rule. Obviously trial lawyers have a financial stake in this issue; but it is important to recognize that the contingent fee is one of the great “levelers” of the playing field in litigation. The contingent fee allows the person of limited or modest means to hire competent lawyers to battle big insurance companies and other corporations who have the power to literally crush the little guy. Putting limits on contingent fees smacks again of big brother paternalism, and will make it more difficult for injured people to find attorneys to handle their cases. Yes, trial lawyers make good money for the most part; however, we often handle cases that turn out poorly, and we get nothing, or even lose money because of significant costs advanced. Caps on fees, and “loser pays” will simply close the courthouse doors to most ordinary American citizens.

Trial lawyers are the first and best defense, against “frivolous” lawsuits. I routinely turn away 3 or 4 cases a week that I feel have no merit. I know my colleagues do the same.

This issue has unfortunately become p0liticized. Most of my fellow trial lawyers are liberal, even very left oriented, Democrats. The trial bar is probably the biggest single contributor to President Obama and the Democratic Party. Reforms of our legal system are needed, but they must be balanced with our constitutional liberties and fundamental principles of fairness.

Governor Palin, I believe that history (and God) call certain individuals at critical times in our history. I believe this is such a time, and God and history are calling you. I will march with you to protect the unborn, the free market, to promote energy independence, a strong national defense, an aggressive policy against Islamic jihadism, and our right to bear arms. That is why I drove from Pittsburgh to Auburn, New York in June just to have the opportunity to meet you and Todd for a few fleeting moments. I know you will study this issue more closely, and reconcile your views to be consistent with your otherwise strong support for the Constitution, the primacy of the individual, and free market principles.