This city erects formidable political levies blocking swift passage of public policy change. Institutional checks and balances, interest groups, time and inertia are among the bulwarks holding back torrents of new legislation and regulation. On those relatively rare occasions when these levies break, the impediments to public policy change get swamped.
For a variety of reasons, the levies holding back change in two areas of tort reform medical malpractice and asbestos litigation are beginning to leak, splinter and, in some cases, collapse. Consequently, legislation in both areas is possible in this Congress. Nevertheless, a number of serious obstacles still exist. Reformers will have to be clever, cunning, and lucky in order to succeed.
Before the levies strained, both areas of tort reform confined the battle to discrete groups. Medical malpractice pitted rich doctors against even richer trial attorneys. Asbestos litigation featured the trial bar suing for a limited number of claimants suffering from mesothelioma, a life-ending disease caused by asbestos exposure.
Yet, over the past several years, the pressure for change began to spill into other areas, posing a threat to people heretofore unexposed. Moreover, policy-makers finally began to focus on the adverse economic consequences of unrestrained litigation.
Doctors in West Virginia, Mississippi, Nevada, Pennsylvania and Florida began denying service to patients. President Bush developed his own malpractice reform proposal, highlighting it in the State of the Union address. “No one has ever been healed by a frivolous lawsuit,” Mr. Bush told Congress last week. Sen. Bill Frist, a smart, well-informed and articulate proponent of reform, became majority leader of the Senate. He raised the issue in his first nationally televised interviews, noting it is an “access to health care” issue for patients not just a fight between lawyers and doctors.
Similar pressures confront the asbestos litigation issue. According to a new Rand study, the number of claimants for asbestos-related lawsuits rose from 21,000 in 1982 to 600,000 today. Total costs rose from $1 billion to $54 billion, with bankruptcies rising from three to 67 during the same period.
At the same time, fissures grew among trial lawyers about how to proceed on the asbestos issue. Some members of the trial bar feel the number of lawsuits brought by those only “exposed,” but not sick, siphons needed resources from those diagnosed with mesothelioma.
This split in the trial lawyer community is another broken levy. Reform advocates are touting “compromise” legislation that creates a national registry of people who were exposed to asbestos, but not sick. The bill would preserve these individuals’ right to sue by extending the statue of limitations in the event they become ill in the future. The legislation would protect the legal rights of those truly sick and would in no way bail out guilty defendants. It would, however, limit the scope of liability and much of the uncertainty surrounding the issue.
Despite these pressures for change, reform advocates must proceed wisely. Opponents of reform could easily gum up the works, by fortifying the existing levies holding back change.
Substantive choices in the legislative process are critical. For example, always attempting to solve tort reform problems by simply pre-empting states rights may not prove effective. Michael Greve of the American Enterprise Institute argues the trial bar may render this approach ineffective by simply finding new causes of action at the state level. Stanford University law professor Joseph Grundfest agrees that trial lawyers pursued this path after Congress passed the Private Securities Litigation Reform Act of 1995, causing lawmakers to pass additional legislation. Moreover, GOP lawmakers may begin to balk at reform ideas grounded in trampling on states rights.
Yet, while the next substantive moves are essential, reform advocates should not allow the perfect to become the enemy of the good. Some have argued to move beyond the president’s proposal on medical malpractice or design more comprehensive legislation than the asbestos registry proposal. This would be a strategic blunder.
Tactically, tort reform advocates should also keep both proposals moving simultaneously in Congress. This dilutes the political prowess of the trial bar. One observer of the reform fight said recently, “My worst fear is that Congress can’t come together on a registry proposal for asbestos reform, allowing the trial lawyers to aim both barrels at medical malpractice.” Sun Tzu says in The Art of War, “The skillful leaders of old knew how to drive a wedge between the enemy’s front and rear.”
Republican control of the legislative and executive branches of government is a necessary, but not sufficient, condition to achieve tort reform. The possibility for reform now exists, but strategic, tactical and policy miscalculations could squander a once-in-a-generation opportunity. Reform advocates must carefully measure the next steps they need to take to tear down the remaining levies blocking change.