TorteDeForm

Kia Franklin

A “Blemish” on McCain’s Tort “Reform” Record?

The national dialogue around the election is focusing so much on the Democratic contenders for their party nomination, but I found this really interesting post from the Glub for Growth on the established Republican candidate John McCain. It's interesting because the Club's ultimate weigh-in on McCain was a "no" (now, mind you, this was back when there were other Republican contenders for the nomination) but one thing they considered worthy of praise was McCain's stance on tort "reform".

McCain says he wants to “pass tort reform to eliminate frivolous lawsuits and excessive damage awards" in medical malpractice cases, and "provide a safe harbor for doctors that follow clinical guidelines and adhere to patient safety protocols.”

The Club writes:

Senator McCain's record on tort reform is generally positive. These votes include:

* Sponsored the Class Action Fairness Act of 2005 which sought to curb lawsuits by shifting suits from state to federal courts, by requiring judges to review all coupon settlements, and by limiting attorneys' fees in non-cash settlements[65]
* Voted for a bill that would bar lawsuits against manufacturers, distributors, dealers and importers of firearms[66]
* Voted for a bill that would place caps on damage awards in medical malpractice suits against obstetricians and gynecologists[67]
* Voted for a motion to proceed to a bill that would cap non-economic and punitive damages in medical malpractice suits[68]

Now, for civil justice minded folks, this makes you want to growl a little. But wait a minute--agasp! McCain, at one point in his tortdeform life, openly suported the oh-so-evil Patients' Bill of Rights! You know, that pesky thing that articulates patients' rights to demand information about their treatment? Say it ain't so. Looks like every tortdeformer has at least one skeleton in his or her closet.

The Club shines the light on McCain's treasonous conduct:

This generally positive record, however, is tarnished by Senator McCain's sponsoring of and outspoken support for the Patients' Bill of Rights,[69] which encouraged [by not generally banning patients' lawsuits against hospitals for medical negligence, perhaps?] an increase in the number of frivolous [read: unwanted by hospitals] lawsuits filed against healthcare providers. He also voted against the Litigation Uniform Standards Act, which limited the conduct of securities class actions under state law.[70]

Well, the Patients' Bill of Rights is actually a neutral bill, despite the Club's mischaracterization, so let's not jump to strip McCain of his tortdeform club card just yet. It's not like he supported a bill to reverse damage caps or anything. BUT, it does give me hope (I'm a hopelessly hopeful person, it seems). Maybe there's room for agreement on some issues where even the most avid tortdeformers (or those who want to appear that way to appeal to the tortdeform voter base) can appreciate the harm tort "reform" does to ordinary citizens who need but can't get access to justice through the courts.

Now, if we can only get McCain to reverse his stance on imposing arbitrary restrictions on malpractice victims' legal compensation.

Visit the Medical Malpractice Reform section of the Pro Civil Justice Presidential Platform.

Kia Franklin: Author Bio | Other Posts
Posted at 11:23 AM, Mar 21, 2008 in Decision 2008 | Health Care | Medical Malpractice | Presidential Election
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