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EDITORIAL: Chloroform for tort reform

- The Washington Times - Friday, November 6, 2009

If congressional Democrats want to dispel the impression that they are wholly owned subsidiaries of Trial Lawyers Inc., they need to do a much cleverer job at hiding the evidence.

In the weak guise of offering incentives to states to create "alternative medical liability" laws, House Speaker Nancy Pelosi's big-government health plan actually discourages the most widely used and effective means of reining in lawsuit abuse. The legislative provision isn't just a bait-and-switch, it's more like the bait in a mousetrap designed to snap the neck of any real reform.

Remember the genesis of the Democrats' supposed openness to lawsuit reform. It happened locally in McLean in an August town-hall meeting where former Democratic National Committee Chairman Howard Dean let the cat out of the bag. "When you go to pass an enormous bill like that, the more stuff you put in it, the more enemies you make," Gov. Dean said. "The reason that tort reform is not in the bill is because the people who wrote it did not want to take on the trial lawyers."

All that public confession did, of course, was put pressure on the Democrats to try to appear less frightened of the plaintiffs' attorneys. So when President Obama addressed a joint session of Congress in September, he promised that his administration would offer incentives to states to curb the disease of rampant lawsuit-itis. His promise came amid various reports saying that tort reform could provide health care savings of between $54 billion and $200 billion over 10 years.

Hence the provision in Mrs. Pelosi's gargantuan 1,990-page, trillion-dollar-plus bill. With several restrictive qualifications and entirely at the discretion of the secretary of Health and Human Services, the provision, indeed, promises "an incentive payment" for states to try lawsuit reform. Then comes the kicker, though: The bill allows such incentive payments only if "the law does not limit attorneys' fees or impose caps on damages."

This provision is a poison pill. Fee limits or damage caps are the two most popular lawsuit reforms in states across the country, and they are demonstrably effective at cutting malpractice-insurance rates and attracting more doctors to the states that embrace them. To pretend to encourage tort reform while punishing states that actually implement reforms is akin to encouraging a diet while assessing fines for losing weight. It's dishonest, and it ought to be a deal killer.