The REAL Reason Why There is NO Tort Reform in Obamacare

Many experts have pointed to tort reform as a key element of any effort to hold down the costs of health care:

Old Democratic presidential aspirant John Edwards won $175 million in judgments over a 12-year period suing doctors, hospitals and insurance companies, everyone but the candy stripers, over infant cerebral palsy cases allegedly caused by mishandled deliveries.

As the American College of Obstetricians and Gynecologists noted in a study in 2003, cerebral palsy could not be blamed on delivery trouble in the “vast majority” of cases.
Using bad science, Edwards enriched himself by bankrupting innocent physicians.
The effect is not restricted to insurance costs. Lawsuits cause doctors to run additional and possibly unessential procedures:

The New York Times has reported that as a result of such lawsuits, “doctors have responded by changing the way they deliver babies, often seeing a relatively minor anomaly on a fetal heart monitor as justification for an immediate cesarean.”

Though an obvious contributor to health care problems, tort reform is not part of any of the Democratic Party bills for revising the United States health care system. Back in June, President Barack Obama said to the American Medical Association:

Now, I recognize that it will be hard to make some of these changes if doctors feel like they’re constantly looking over their shoulders for fear of lawsuits. I recognize that. (Applause.) Don’t get too excited yet. Now, I understand some doctors may feel the need to order more tests and treatments to avoid being legally vulnerable. That’s a real issue. (Applause.) Now, just hold on to your horses here, guys. (Laughter.) I want to be honest with you. I’m not advocating caps on malpractice awards — (boos from some in audience) — (laughter) — which I personally believe can be unfair to people who’ve been wrongfully harmed.

Fairness may very well be the president’s reason for not backing tort reform, but other elements of the plan seem unfair, such as the prospect of rationing health care, and that hasn’t stopped him. It seems that the president should be desperate to find some savings in his health care plan, as the Congressional Budget Office has said almost every Democratic Party idea increases rather than decreases spending. Tort reform may very well be the ticket to heath care savings that President Obama was looking for:

The accounting firm Pricewaterhouse Coopers says about 10 percent of the cost of medical service is attributable to medical malpractice lawsuits. Roughly 2 percent is caused by direct costs of the lawsuits; an additional 5 percent to 9 percent is due to expenses run up by defensive medicine.

So why the lack of tort reform in ObamaCare? Start with the campaign dollars the president received from the legal industry:

But its not Just the President, trial lawyers have a lock on many Democrats in Congress:


Trial lawyers buy Democrats in Congress

Neither of the Obamacare proposals now before Congress includes a medical malpractice reform provision despite the fact that the public wants one -- and that it would cut annual health care costs by $200 billion. A medical malpractice reform provision would protect doctors from expensive lawsuits filed by avaricious class-action plaintiffs' attorneys who have driven malpractice insurance rates into the stratosphere. Judging by Federal Election Commission data on the political contributions of people associated with the top 15 class-action plaintiffs' law firms, it's no accident that malpractice reform is not part of health care "reform": Trial lawyers are investing heavily in their Democratic friends who control the White House and both chambers of Congress.

Since Jan. 3, 2009, 581 contributions worth $1,261,023 have been made by donors identifying themselves as employees of the 15 firms (contributions by employees who did not identify their employer are not reflected in this data). Democratic candidates and committees received $1,241,978, or 98 percent of the total. The most generous of these lucrative sources of Democratic campaign cash was the Dallas-based Baron & Budd, best known for the late Fred Baron, who was finance chairman for former Sen. John Edwards' 2008 presidential run. Thus far in 2009, Baron & Budd employees have contributed $212,958 to 21 Democrats, and not a cent to Republicans. Second on the list is the New York-based Grant Eisenhofer firm, with employees contributing $184,078 to seven Democrats and no Republicans. Of the 138 total recipients from employees of all 15 of the firms, 122 were Democrats and just 16 were Republicans. The Democrats received contributions averaging more than $4,700, while the GOPers averaged $646.

Has the investment paid off? Besides preventing the inclusion of medical malpractice reform, the Democratic majority in Congress has included multiple trial lawyer earmarks in the House version of Obamacare. Section 257 authorizes state attorneys general to sue companies that violate any federal health care provision and to delegate the work of such suits to class-action plaintiffs' firms. Another trial lawyer earmark in the bill pays states not to enact caps on attorneys' fees or lawsuit settlements.

Besides provisions of Obamacare, class-action trial lawyers are getting their money's worth in other ways. The Ledbetter bill signed by President Obama overturned a Supreme Court ruling upholding deadlines for plaintiffs to file class-action lawsuits, thus clearing the way for class-action suits to be filed years after alleged damages supposedly occur.

Among the pending bills that favor the trial attorneys is one to allow "guilt-by-association" class-action suits against firms doing business with a defendant company. These examples only skim the surface of what Democrats have been doing for their trial lawyer friends this year, but it's enough to make clear the trial bar knows where to invest its settlement fees.