ThinkProgress Home
ThinkProgress
ThinkProgress Logo

Stories tagged with “tort reform”

Health

Internal Memos: Obama Avoided Health Reforms To Build GOP Support For Legislation

By Igor Volsky on Jan 23, 2012 at 10:35 am

Politico Pulse pulls out this telling internal memo from Ryan Lizza’s New Yorker piece this morning examining the thinking of the Obama administration during the health care reform debate. Obama publicly flirted with the idea of making a greater investment in tort reform and pursued the proposals in order to secure Republican cooperation and support:

“On July 1, 2009, his top health care adviser, Nancy-Ann DeParle, submitted a detailed nine-page policy memo asking whether the White House should consider including medical-malpractice reform in the legislation. Most Democrats opposed the idea, but the American Medical Association was pushing for it. ‘Obviously, we shouldn’t do anything that weighs down the overall effort,’ Obama wrote back, in his characteristically cautious and reasonable style, ‘but if this helps the AMA stay on board, we should explore it.”

Ultimately, none of this mattered very much. The Affordable Care Act contains funding for tort reform demonstration projects — as well as a multitude of other Republican-backed initiatives — that the GOP ignored because they were more interested in preventing Obama from signing one of the most sweeping social reforms in a generation than addressing the nation’s health care crisis.

What the administration learned all to late is that the details of the policy had absolutely no bearing on the tone of the opposition. Republicans relied on the same “big government” talking points to combat reform even as the measure became more conservative and Democratic lawmakers stripped out initiatives like the public option, end-of-life counseling and a host of other provisions that Republicans found repugnant. But no matter how much the bill changed to resemble the Heritage-backed Romneycare solution that relied on private competition and private enterprise, the GOP still claimed that the government was taking over health care and rationing services to seniors.

Lizza reports that Obama still believed that he could win over the opposition and rejected good policy in order to make the bill more acceptable to conservative opinion makers. One memo reveals, for instance, that Obama turned down a pilot program “to study the most effective treatments for patients” within the Federal Employees Health Benefits Plan (FEHBP) because it was not “politically viable” and could prove a target for Fox News. The president wrote at the end of the memo, almost apologetically, “Unfortunately I think the political guys are right about how it would be characterized. Let’s go back at it in future years, when the temperature on health care and the economy has gone down.”

Almost two years later, the temperature is still at a boiling point and the GOP presidential candidates are crisscrossing the country accusing Obama and the law of everything from ending private enterprise to jeopardizing the livelihood of seniors. Given the partisan divide of modern American politics, Republicans and their supporters in the media will invent controversy where none exists and so it’s foolhardy to abandon good policy out of fear of inflaming the critics. They’ll burn you anyway, while you’ll have a harder time defending a decision that was made on political, rather than policy merits.

Health

Rick Perry Overstates Success Of Tort Reform In Recruiting Doctors To Texas

By Igor Volsky on Nov 8, 2011 at 9:00 am

Rick Perry routinely overstates the success of his tort reform initiative in bringing more doctors to Texas, an Associated Press analysis has found. For instance, the governor claims that before his 2003 law — which caps non-economic damages in malpractice lawsuits to $250,000, limits time for filing a cause of action, toughens the standard of proof and raises the bar on qualifying expert witnesses — skyrocketing insurances costs were chasing doctors out of the state. The reform lowered malpractice insurance costs and “licensed more than 23,000 new doctors,” Perry says on the stump. During a recent speech to the Georgia Public Policy Foundation he added, “Pregnant women have better access to OB-GYNs. People in need of trauma care have better access to neurosurgeons and other specialists.”

But Perry’s 23,000 estimate includes 10,000 “who sought licenses in Texas but took jobs elsewhere” and overall, “the increase in physicians in Texas roughly tracked the state’s population growth”:

And the bulk of that influx has come in larger cities where health care was already abundant, leaving large rural swaths of Texas still without doctors…. [M]edical records in Texas show that of the state’s 254 counties, only 106 have an obstetrician/gynecologist — just six more than in 2003. In Presidio County, which has 8,000 residents and is growing, some of Parsons’ patients move 240 miles away to live with relatives in Odessa or Midland when they become pregnant. [...]

Medical rolls increased by 24 percent since 2003, while Texas’ population was soaring by 20 percent during the decade. Texas also saw rapid growth of physicians per capita before tort reform, according to the Texas Department of State Health Services.

Part of the challenge Texas faces in recruiting more doctors is its low Medicaid reimbursement rates and state cuts to medical education. This year, lawmakers cut $805 million from doctors serving Medicaid patients and postponed $4 billion in Medicaid costs for payment in the next budget cycle. The latest state budget also included an 8 percent cut in reimbursement rates to hospitals and reduced state support to graduate medical education by almost 40 percent. As a result, more than 5.2 million Texans already live in areas designated as official health professional shortage areas. In fact, Texas ranks 48th out of 50 states in the number of physicians per 100,000 residents.

Justice

Cuccinelli: Senate GOP ‘Jobs’ Bill ‘Tramples the States and Violates the Constitution’

By Ian Millhiser on Oct 31, 2011 at 9:50 am

Earlier this month, Senate Republicans cobbled together many of their longstanding objectives, and called it a “jobs” bill to try to draw attention away from President Obama’s popular American Jobs Act. Yet this plan backfired on the Senate GOP leadership when Tea Party lawmakers began lining up to denounce a key provision of their makeshift “jobs” bill as unconstitutional. This provision — a proposal to impose damage caps on medical malpractice suits in both state and federal court — has now attracted the ire of yet another Tea Party heartthrob, Virginia Attorney General Ken Cuccinelli:

With Senate Bill 197 — legislation that would have the federal government dictate how state judges are to try medical malpractice cases and cap what state courts may award — several Republican senators have reminded us that federal impositions on states that run contrary to the U.S. Constitution and to the spirit of federalism have never been the sole prerogative of just Democrats. . . . This legislation expands federal power, tramples the states and violates the Constitution. And if it were ever signed into law — by a Republican or Democratic president — I would file suit against it just as fast as I filed suit when the federal health-care bill was signed into law in March 2010 (15 minutes later).

In reality, the constitutional case against federal tort reform is very weak. Congress enjoys broad authority to regulation national economic markets, such as the market for health care, and that includes the power to regulate those markets badly. If people don’t like the laws their elected officials put in place, our democratic Constitution empowers them to vote those officials out of office — it does not empower the law’s opponents to simply declare anything they want unconstitutional.

Nevertheless, Cuccinelli’s strident opposition to this law — and that of others such as tenther Sen. Mike Lee (R-UT) — should stand as a warning to Republicans who raced to embrace a crackpot theory of the Constitution the minute President Obama signed a health care law they disapproved of. Federally imposed tort reform has been a centerpiece of GOP health care policy for many years, and now this longstanding Republican goal many be unachievable because too many Republican lawmakers were conned into embracing Cuccinelli and Lee’s tenther vision of the Constitution.

Those that live by crackpot distortions of our Constitution, die by crackpot distortions of our Constitution.

Justice

Sen. Mike Lee Abandons Filibuster Promise Now That It Would Impact GOP Bill

By Ian Millhiser on Oct 25, 2011 at 9:50 am

Yesterday, ThinkProgress reported that Sen. Mike Lee (R-UT) believes the GOP “jobs” plan is “constitutionally problematic” because it includes a bill that tells state courts how much they can award to medical malpractice plaintiffs. Lee’s claim that the bill is constitutional suspect is particularly significant because he promised last March to block any bill that he believes does not have “a clear and obvious basis connected to one of the enumerated powers” of the Constitution.

On Twitter, we asked Lee’s office if he would keep his promise to obstruct bills that he does not believe to be obviously constitutional now that keeping his word requires him to block a major Republican priority. Lee’s office refused to say that he would:

It’s not exactly clear what Lee’s office is saying here, but one thing is absolutely clear. Lee has abandoned his original promise to obstruct legislation he deems unconstitutional.

The origin of Lee’s promise is a March 2 letter where he and seven of his colleagues promised to “object to the consideration of any legislation” that fails to meet five criteria — one of which states that “all bills must have a clear and obvious basis connected to one of the enumerated powers” in the Constitution. Because there are only two ways to bring most legislation to the Senate floor, unanimous consent from all 100 senators or a 60-vote “cloture” motion breaking a filibuster, Lee’s promise not to consent to a vote on bills that are not obviously constitutional amounts to an effective promise to filibuster those bills.

Now, however, Lee is merely saying that he will “vote against” bills that he thinks violate the “original understanding of the Const[itution],” not that he will actively filibuster them. This is a much weaker pledge. It leaves Lee free to vote yes on the only vote that matters in today’s hyperobstructionist Senate — the vote to invoke cloture and allow the GOP’s bill to receive an up or down vote. Similarly, his new claim that he will vote no on bills that he can’t reconcile with the “original understanding” is weaker than his original pledge to not only block bills that he deems unconstitutional, but also to block bills whose constitutionality is not “obvious.”

Lee made a sweeping and unambiguous pledge when he signed his March 2 letter. Now that this promise hinders his ability to behave like a loyal partisan, however, he has suddenly decided that it no longer applies. Lee’s willingness to water down his own promises the minute they come into tension with the Republican agenda raises serious questions about whether anything he says can be trusted.

Justice

Exculsive: GOP Sen. Mike Lee Calls Part Of GOP ‘Jobs’ Bill ‘Constitutionally Problematic’

By Ian Millhiser and Scott Keyes on Oct 24, 2011 at 9:50 am

Earlier this month, the Senate GOP cobbled together a hodgepodge of longstanding Republican objectives and called it a “jobs” bill in an attempt to neutralize President Obama’s popular jobs plan. One provision of this makeshift “jobs” plan would impose damage caps on medical malpractice suits in both state and federal court — a tort reform proposal that has been a centerpiece of GOP health care policy for many years.

Yet, in an interview with ThinkProgress’ Scott Keyes, Republican Sen. Mike Lee (R-UT) said he has very serious doubts about whether this longstanding GOP plan to restrict state courts is even constitutional. According to Lee, the federal government has full constitutional authority to tell federal courts how to operate, but only state legislatures have the same power to tell state courts how to operate:

LEE: Congress needs to be very careful when it enters into a uniquely state law area like tort. So tort reform needs to be undertaken very carefully insofar as it’s done at the federal level. There are some tort suits that proceed in federal court and, um, but if we venture much outside of that, particularly if we get into telling state courts how to interpret state law, that can be constitutionally problematic.

KEYES: [State tort reform] might not be justified as far as the enumerated powers go?

LEE: Correct, correct. . . . [tort reform] is something that can be addressed in some way at the federal level, but most of it needs to be done at the state level.

Watch it:

Lee is a notoriously bad judge of what is and is not constitutional, and he is probably wrong to suggest that the GOP’s tort reform bill is unconstitutional. Congress’ power to “regulate Commerce…among the several states,” gives it broad authority over the national health care market (although there are two Supreme Court cases that at least raise the possibility that a court could find the GOP’s plan unconstitutional).

Ultimately, however, it may not matter whether the GOP’s bill is constitutional or not. What does matter is that Lee promised last March to filibuster any bill that does not have “a clear and obvious basis connected to one of the enumerated powers” of the Constitution. Lee clearly doesn’t think that the GOP tort reform plan has this clear and obvious basis, so he is obligated by his own word to filibuster the GOP’s “jobs” bill.

More importantly, Lee’s objections to the GOP tort plan should be deeply embarrassing to the armies of GOP operatives who declared themselves the keepers of the Constitution the minute the Affordable Care Act appeared likely to become law. For nearly two years, Republicans have engaged in an unceasing lecture on how the ACA’s supporters were wrong to pass a bill that doesn’t comply with some entirely fabricated constitutional limit that no one had ever heard of before it was invented to attack the ACA. Now we learn that the GOP cannot even satisfy their own senators that a centerpiece of their health care plan is constitutional. Those who live in glass houses should not practice constitutional law.

Justice

Senate GOP Hurls Tenthers Under The Bus In So-Called ‘Jobs’ Bill

By Ian Millhiser on Oct 20, 2011 at 11:25 am

Last week, the Senate GOP cobbled together a list of longstanding Republican priorities — such as repealing the Affordable Care Act and amending the Constitution to lock Tea Party fiscal policy in place permanently — called it a “jobs” bill and hoped that this hodgepodge of old ideas would distract from President Obama’s popular jobs plan. Interestingly, this grab bag of old right-wing ideas includes a tort reform bill called the “Medical Care Access Protection Act,” which imposes Texas-style damages caps on medical malpractice suits. A handful of tenther lawmakers opposed this bill because it violates their overarching principle that nearly everything the federal government does violates the 10th Amendment. By including this proposal in its high profile attempt to take attention from Obama’s jobs plan, the Senate GOP sends a pretty clear message that they don’t actually care about tentherism — they only pretend to care in order to use the 10th Amendment as a weapon against President Obama.

It’s hardly shocking to discover that Senate Republicans view the Constitution as nothing more than a ball of clay that can be molded into whatever shape they want it to take, but it’s worth noting just how expansively these GOP lawmakers view their own constitutional authority. Far from accepting the tenther view that nearly everything is unconstitutional, the Medical Care Access Protection Act endorses a theory of federal power that is more expansive than that taken by any the Supreme Court:

(2) EFFECT ON INTERSTATE COMMERCE- Congress finds that the health care and insurance industries are industries affecting interstate commerce and the health care liability litigation systems existing throughout the United States are activities that affect interstate commerce by contributing to the high costs of health care and premiums for health care liability insurance purchased by health care system providers.

The reason for this segment of the bill is to invoke Congress’ power to “regulate commerce…among the several states” in order to justify the bill under the Constitution. The problem with this justification, however, is that the Supreme Court unanimously rejected the view that Congress may regulate any matter that simply “affects” commerce. In United States v. Lopez the majority said Congress can regulate matters that have a “substantial” effect on interstate commerce, and the dissenters said that Congress can regulate matters that have a “significant” effect on interstate commerce. The Senate GOP, by contrast, seems to believe it can do anything at all so long its actions have some miniscule impact on the nation’s economy.

This view is obviously not compatible with the view Senate Republicans took in the amicus brief they filed in the Affordable Care Act litigation, where the overwhelming majority of the GOP caucus endorsed the view that a comprehensive regulation of the entire national health care market is somehow not a constitutional regulation of interstate commerce. Indeed, the Senate GOP’s own lawyer — the author of their brief attacking health reform — has a lengthy post at the National Review slamming their decision to prefer tort reform to tentherism.

Ultimately, however, expecting these lawmakers to take a principled stance on the Constitution is a fool’s errand. When they want to legislate, they believe the Constitution gives them all the power they need. But when President Obama wants to pass new laws, they’re happy to embrace a fringe reading of the Constitution in order to sabotage the president’s agenda.

Health

Report: 40 Percent Of Medicare Spending On Tests Is ‘Medically Unnecessary’

By Igor Volsky on Oct 7, 2011 at 4:10 pm

In case you weren’t convinced that the government is spending millions of dollars on health care that does nothing to improve outcomes, this stat may change your mind: an investigation conducted by iWatch finds that “40 percent of Medicare spending on common preventive screenings [is] regarded as medically unnecessary.” Beneficiaries are receiving these tests “more frequently than medically recommended or at times when they cannot gain any proven medical benefit, extracting an enormous financial toll on the nation’s health care system.” This is because “doctors disregard scientific guidelines out of ignorance, fear of malpractice suits or for financial gain, as patients inundated by medical advertising clamor for extra tests.” The Affordable Care Act tries to tackle this waste by changing the incentives that lead to unnecessary care, funding tort reform demonstration projects, and investing in comparative effectiveness research to weed out ineffective treatments.

Politics

Perry’s Political Success Subsidized By Right-Wing Ideologue

By Guest Blogger on Aug 19, 2011 at 4:31 pm

Our guest blogger is Sarah Bufkin, a former ThinkProgress intern and student at UNC-Chapel Hill.

Faced with flagging poll numbers and a campaign chest close to empty, Texas Agriculture Commissioner Rick Perry was running into trouble three weeks before voters headed to the polls in 1998 to choose a new state lieutenant governor. But all that changed when Dr. James Leininger, a Texas millionaire and right-wing ideologue, guaranteed a $1.1 million loan to Perry’s campaign on Oct. 25, enabling a $1 million advertising blitz to hit the airwaves.

Leininger’s loan arguably saved Perry from political obscurity, putting him in the Lieutenant Governor’s office just two years before then-Gov. George W. Bush left Texas for the White House. But Leininger has not drawn much media attention outside of his home state. With Perry planning to meet with Leininger at a “call-to-action” retreat on Aug. 27 as a newly-declared presidential candidate, however, additional scrutiny will fall on the pro-voucher, anti-gay, hard-line conservative.

Earlier this week, the Los Angeles Times’ Matea Gold and Melanie Mason reported that Perry “has received a total of $37 million over the last decade from just 150 individuals and couples, who are likely to form the backbone of his new effort to win the Republican presidential nomination.” Indeed, Leininger — who wasn’t mentioned in the article — is one key part of such the backbone.

Over the past two decades, Leininger has funded the rightward shift in Texas politics through his “vast web of interlocking and overlapping pressure groups.” But unlike other GOP corporate donors, he is ideologically motivated and has “almost exclusively [donated] to help Republican candidates who agree with his hardright public policy agenda”:

School Vouchers: His biggest pet project, Leininger has donated millions over the years to fill both the state legislature and the State Board of Education with pro-voucher candidates. He also worked on attracting public support both by founding a pro-voucher think tank and by starting up his own voucher program in San Antonio in 1992.

Tort Reform: Leininger founded and provided 86 percent of the funding for a PAC he called Texans for Justice in order to put conservatives on the state Supreme Court in 1988. Buoyed by donations from Texans for Justice and other conservative groups, four GOP candidates won seats on the court that year, effectively transforming it from a “fairly populist” body to one considered “among the most pro-business in the country.”

Anti-gay: Over the years, Leininger has contributed over $1 million to anti-gay PACs and organizations including Texans FOR Marriage, the Family Research Council and the American Family Association, which the Southern Poverty Law Center has designated a hate group. Texans for Governmental Integrity—a PAC he founded and controlled—distributed a mailer in 1994 that showed a white man and a black man kissing to warn voters away from a State Board of Education candidate because she supported homosexuality and abortion.

Pro-Life: In addition to sending out an anti-abortion mailer through Texans for Governmental Integrity, Leininger supports several pro-life PACs independent of his control, including Texas Right to Life, the Republican National Coalition for Life and Texas Alliance for Life.

The friendship between Perry and Leininger, however, stretches back decades and is padded with over $1.3 million in campaign contributions.

The “biggest beneficiary” of Leininger cash over the years, Perry has supported policy initiatives in line with the businessman’s agenda. While serving as lieutenant governor in 1998, he pushed “intensely” to bring a school vouchers bill to a vote on the Texas Senate floor. Although the legislation ultimately failed, Perry has continued to push education reform proposals from Leininger’s think tank, the Texas Public Policy Foundation. And this past legislative session, Perry designated anti-abortion, tort-reform and eminent -domain bills as “emergency items” in order to bring them to a vote.

In turn, Perry has benefited from his relationship with Leininger in more than just campaign cash. Back in early 1996, Perry even made over $38,000 after purchasing close to 3,000 shares of stock in one of Leininger’s companies. In what he termed “a coincidence,” Perry picked up his shares on the same day that he and Leininger talked together at a luncheon and that a new investment group sent the stock’s value skyrocketing. Around that time, the lieutenant governor candidate convinced Leininger to go in with him on a private plane with a sticker price of $475,000. Perry, who only paid 10 percent of the plane’s cost at the outset, made headlines months later when Leininger and his brother decided to sell him their portions for below the market price.

With Perry poised to run for the presidency, Leininger is likely hoping for an even bigger return on his political investment.

Health

The Texas Unmiracle: Malpractice Reform Edition

By Igor Volsky on Aug 15, 2011 at 3:45 pm

Rick Perry doesn’t have much of a health care record to run on. A quarter of Texans are uninsured, the highest in the country, Texas has the narrowest Medicaid eligibility standards, and spends the least of any state on mental health and the second to least on health care for the poor. Perry’s sole accomplishment seems to be the 2003 overhaul of the state’s malpractice system, which the newly-minted candidate promoted during a stop in New Hampshire on Sunday:

The two top issues in the election, he told voters, are jobs and debt, which Romney, too, hammers on the campaign trail. But while Romney tells voters repeatedly how much he knows about the economy from working 25 years in the private sector (and spends little time talking about his record as governor of Massachusetts), Perry weaved together his vision for the nation’s economy by tying it to his accomplishments in Texas.

“We’ve had the most sweeping tort reform in the nation,” he said, asserting that as a result of the law passed in 2003, there are 20,000 more physicians in Texas. He spoke of cutting taxes and sparking the best job growth of any state in the nation.

And instead of blasting President Obama in the ways his competitors have, Perry chose his words carefully, explaining that he’s not angry but indignant about the federal government.

It’s hard to know if malpractice is to credit for the additional physicians, but it’s certainly not responsible for lowering the state’s health care costs and that serves as an uncomfortable case study for how the GOP’s favorite reform prescription — tort reform! — falls short of expectations.

When Texas capped non economic medical malpractice damages to $250,000 in 2003, most conservatives argued that the reform would free doctors from having to prescribe unnecessary treatment to avoid lawsuits. It didn’t work out that way. According to the Dartmouth research on disparities in health care spending, many Texan doctors are still prescribing aggressive treatments that don’t improve outcomes. In fact, as you can see from the chart below, Texas’ Medicare spending “seems to have gone up faster than the nation’s since 2003“:

The truth of the matter is, despite conservative claims to the contrary, malpractice costs make up only a very small percentage of health care spending. And most health experts believe that while fear of lawsuits may certainly be motivating doctors to practice defensive medicine (over prescribe unnecessary treatments and procedures) the nation’s fee-for-service reimbursement system bares more of the blame. Texas’ experience seems to validate that theory.

Alyssa

‘Hot Coffee,’ Tort Reform, and the Next John Grisham Project

By Alyssa Rosenberg on Jun 28, 2011 at 9:48 am

The McDonald's manual that was evidence in Stella Liebeck's suit against McDonald's.

Hot Coffee, Susan Saladoff’s documentary about the corporate fight to limit individual citizens’ access to the courts and to justice from the courts through caps on damages, influence on judicial elections, and clauses in contracts requiring that employees and consumers give up their rights to sue companies and arbitrate disputes, is a pretty good movie. Seeing Stella Liebeck’s burns from the McDonald’s coffee that injured her, or hearing Jamie Leigh Jones talk about being raped by her Halliburton colleagues is useful and powerful. The problem is, the lies about Liebeck’s case in particular are so ingrained in our culture — the documentary opens with scenes from Seinfeld of Kramer getting excited about suing somebody and Bart Simpson writing “I will not file frivolous lawsuits” on his classroom blackboard — that it’s hard to imagine how to push back this late in the fight.

An intriguing alternative presents itself in Hot Coffee, though, when John Grisham shows up to talk about his novel The Appeal. The book is inspired by the case of Oliver Diaz, a Mississippi judge who fought off an election challenge from a Chamber of Commerce-backed opponent, only to find himself the target of an ethics probe. (In the documentary, he insists it’s meaningless, though the relationships in question looked improper.) For a long time, Grisham was an incredibly powerful critic of corporate power. He was absolutely over the top, a melodramatist who wasn’t shy about alleging that companies would murder Supreme Court justices or rig juries to secure successful verdicts, and his novels don’t really have any ambivalence about whether his plaintiffs have been injured in a way that demands redress.

I don’t know if he got bored by telling similar stories, or if he just succumbed to the lure of CIA stories (his CIA director, Teddy Maynard, is a fairly boring manipulative genius), but I would love to see Grisham bring back his scrappy young lawyers and his flawed but appealing victims. And if I were Grisham or a liberal studio head, I’d be riding the wave of the downturn and the financial crisis and pushing to get every damn corporate malfeasance story I’d written but that hadn’t made it to the screen sold and adapted. Washington stories are hot at HBO, so sell The Street Lawyer to them as a miniseries or to a movie studio. Maybe convince someone to do The Appeal as a Wire-style Appalachia story about Massey Energy, and mining, and Don Blankenship. This is a great market opportunity for Grisham — if he can shift his audience’s attention in what happens to be a politically useful direction.

Switch to Mobile