Thursday, August 6, 2009

Congress adjourns for August recess this week. As lawmakers try to explain to their constituents back home why the world’s most advanced health care system should be altered, the one special interest that ought to be targeted is the only one that may get off scott-free — trial lawyers. In fact, the lawyers want a tax cut.

Rather than worrying about defending their own ill-gotten turf, plaintiffs’ attorneys are plotting ways to garner more goodies. Linda Lipsen, senior vice president of the American Association for Justice, the national organization for plaintiffs’ lawyers, is advocating a sneak attack to secure a special tax break. According to Chris Rizo of, who reported from the association’s annual meeting last week, the tax break would let plaintiffs’ lawyers deduct certain expenses upfront rather than at the end of litigation — thus encouraging frivolous lawsuits in search of jackpot justice. That would cost the Treasury billions.

“You cannot have a stand-alone bill to help lawyers … so we have to tuck it into something,” Ms. Lipsen told the delegates.

Mr. Rizo reported: “Lipsen said the AAJ is working to ‘fix this,’ noting that the association has the support of Senate Majority Leader Harry Reid, D-Nev., Senate Finance Committee Chairman Max Baucus, D-Mont., and House Speaker Nancy Pelosi, D-Calif., and House Ways and Means Chairman Charles Rangel, D-N.Y.”

“The problem is there is not a politically palatable vehicle to carry the legislation,” Ms. Lipsen said, according to Mr. Rizo’s reporting.

When the smog clears, we see that Democratic leaders are expected to sneak (“tuck”) into an unrelated law an unpalatable deal in the dead of darkness, all for the sake of their attorney contributors. Who needs transparency when favored special interests are at the trough, right?

But when it comes to sharing in the cost of health care reform, the lawyers are off-limits. President Obama is against capping malpractice awards to reflect actual damage done to patients. He is against doing away with strict liability rules, which means doctors or medical companies still can be held liable for a bad outcome even if they do not create the problem.

Philip K. Howard, chairman of the reform group Common Good, wrote in his 2009 book “Life Without Lawyers” that costs could be contained through the use of “special health courts” for medical malpractice claims. Such courts would feature “the following characteristics: judges dedicated to health care claims; written judicial opinions applying standards of care rather than jury verdicts; neutral experts rather than hired guns; expedited proceedings with incentives for early settlements; payments of non-economic damages based on a schedule for different injuries….”

Yet, as Mr. Howard explained in a July 15 Wall Street Journal column, “Sen. Mike Enzi (R., Wy.) discovered just how powerful the trial lawyers are when he proposed creating health court pilot projects. His proposal was only to permit experiments, not broad-scale tort reform…. But when Mr. Enzi offered this modest proposal, other members of the Senate Committee on Health, Education, Labor and Pensions killed the idea.”

Now we get it. When special tax breaks can help the special-interest trial lawyers, they expect to gain those breaks in secret. However, when special health courts can help contain lawsuit costs while providing more consistent justice, the lawyers prescribe a chill pill and senators do their bidding.

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