Trump’s Budget Proposal: Tort Reform is What Really Puts Americans at Risk

Taking a look at the inclusion of tort reform in Trump’s budget proposal and the impact it could have on Americans’ health.

Love him or hate him, there’s one thing that we can’t deny. The Trump presidency has provided us with a constant stream of news, both positive and negative, that has been difficult to tear our eyes away from. I’m sure I’m not the only one chuckling at his all-caps tweets or cringing at the video of him shoving the Prime Minister of Montenegro out of the way.

This news as of late has been focused on the Trump Administration’s 2018 fiscal budget proposal that aims to “roll back burdensome regulations” to stimulate the creation of American jobs. With funding cuts to the EPA, FDA, CDC and many others, it seems that Trump may very well keep his frightening promise of freeing corporate America from the restraints put in place by Obama-era regulations. Every media outlet I tune into is abuzz with news of the slew of government agencies who are set to lose funding. And they rightly should be, since these proposed cuts could greatly impact the ability to clean up hazardous waste sites, conduct groundbreaking medical research, and even impact the enforcement of environmental regulations.

But, there’s one aspect of his budget proposal that should be making more headlines than it is.  The Trump Administration is calling for tort reforms that would essentially remove a critical safety net that has so far been supported by the civil justice system. This system allows individuals to file tort claims for any personal injury they may have sustained. The proposed reforms, however, would flip it on its head and skew the medical liability actions in favor of physicians and corporations rather than the patients who have been adversely affected. Without this safeguard in place to serve as the fallback for when deregulation fails or is no longer effective, the health and safety of millions of Americans could derail from the already rickety tracks they’re traveling on.

One aspect of the proposed tort reform is the call for a $250,000 malpractice damage cap that the administration is claiming would save the Department of Health & Human Services about $32 billion over the next 10 years. For injured parties, this type of limit makes it more difficult for plaintiffs to receive a jury trial for the damages they’re seeking, since lawyers are deterred from taking their case in the first place. It often costs around $200,000 “just to prepare a med-mal case for trial” and more often than not, the seeking of non-economic damages, or the pain and suffering endured by the plaintiff, is what enables a lawyer to earn a fee. Furthermore, those who have opposed tort reform say that it harms the victim twice – once through negligence, or the failure to act in accordance with the standards of medical care, and then again when the plaintiff receives damages that are less than deserved.

In addition to the damage cap, the tort reforms would also create a statute of limitations of three years for malpractice suits. This is good in theory, since it creates a level of efficiency for the judicial process, but it’s harmful to plaintiffs who are seeking reparations for illnesses or injuries that have taken longer than three years to develop. A prime example of this is the asbestos-causing cancer mesothelioma, which saw its mortality rate peak in 2010 for U.S. cases. Since this aggressive illness can take anywhere from 10 to 40 years to develop, those who were exposed to asbestos fibers common in building materials up until 1989 would have no hope in seeking the reparations they deserve.

In conjunction with the tort reforms included in the budget proposal, the recently passed Fairness in Class Action Litigation Act only allows malpractice suits to move forward in court if every plaintiff has suffered an injury of “the same type and scope.” So, if one woman was affected by talcum powder via self-application, and another had been using it on her infant daughter, who later developed ovarian cancer, neither would be able to seek justice by banding together. Therefore, it’s highly unlikely that you would be able to give the same classification to every single injury seeking damages.

The bill would also require lawyers to follow a certain criteria for their fees, making them less likely to even approach a class action litigation in the first place. So, it’s safe to say the “fairness” of this new litigation act seems only to be fair for the defendants facing legal consequences for their actions. If Trump’s America exists to benefit corporations, this would be the proof.

If the main goal of Trump’s tort reform inclusion in the budget proposal is to lower healthcare costs, then it would be wise for the administration to step back and take a look at the findings of the National Bureau of Economic Research. According to one study, the tort reform must impact the entire medical practice, not just malpractice, in order to see a reduction in healthcare costs. The cost of premiums are likely to see only a 1-2% reduction, and further conclusions by bioethicist Zeke Emanuel indicate national healthcare spending would only see a decrease of about 0.5%.

Although it’s highly unlikely that a budget proposal so starkly contrasting that of the previous administration is likely to pass, keep in mind the possible ripple effect that may occur if it slides through the House and Senate. Perhaps even more harrowing than the potential for environmental regulations to be stripped away is the knowledge that if you sustain an unwarranted injury because of this deregulation, you may not even be able to receive the reparations you both want and deserve.

America is traveling on a rusted railroad track at what seems like breakneck speeds. Let’s hope we choose to stay the course, lest we be derailed.

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18 thoughts on “Trump’s Budget Proposal: Tort Reform is What Really Puts Americans at Risk

  1. Well it is not very clear whether Trump knows anything about what his admin does, Exhibit A:

    Until Tuesday’s meeting at the White House, Mr. Trump had spoken with only a few members of the Senate, according to an administration official. The pace was nothing like the dozens of calls he made to help pass the House’s health bill, aides said.

    A senator who supports the bill left the meeting at the White House with a sense that the president did not have a grasp of some basic elements of the Senate plan — and seemed especially confused when a moderate Republican complained that opponents of the bill would cast it as a massive tax break for the wealthy, according to an aide who received a detailed readout of the exchange.

    Mr. Trump said he planned to tackle tax reform later, ignoring the repeal’s tax implications, the staff member added.

    Disclosure, I am a plaintiff’s lawyer and agree with you (though I don’t do medical malpractice) However, I do pharma litigation (though my firm generally does not like talc cases).

    Some questions though, California has had a 250,000 dollar cap on non-economic damages in Medical Malpractice cases since 1975. Economic damages (lost wages, medical bills) are uncapped. Does the current “healthcare” stalled bill make the same distinction or not.

    Is the law merely targeting true Rule 23 class actions or are they also going against consolidated complaints/MDLs? A lot of the pharma cases I do are not class actions but consolidated complaints with multiple plaintiffs and usually in state court (though BMS v. Superior Court is going to change some of our practice here).

    The thing about plaintiff’s lawyers is that Republicans generally dislike us and the Democrats will gladly take our money but don’t always love us as well. A lot of White Shoe/Corporate Defense lawyers are also strongly affiliated with the Democratic Party and might see themselves as vanguards of liberalism in their personal politics. But they still have notions on the “respectability” of law and the plaintiff’s bar is not it. Though you would eventually figure that tort reform could be so successful that it takes their jobs too.

    A lot of notions on respectability in this country seem to be attached to corporation and pedigree. So to quote someone else from LGM maybe a a mid-level associate who graduated from Boalt and spent a few years as a Judge’s clerk before going to their corporate firm has their first experience with the plaintiff’s bar with someone who attended Golden Gate at night and might not necessarily have been filled with high flying rhetoric on the beauty of law and might just be trying to get a sympathetic plaintiff and unsympathetic defendant in front of a jury with appeals to emotion instead of finely tuned legal arguments filled with precedent.

    I disagree with the stereotype. I think good plaintiff’s lawyers are among the best in the nation but the stereotype exists including among many people who view themselves as liberals.

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      • Hard question. I’d say that among the general public, criminal defense attorneys. Plaintiff’s lawyers can still launch political and judicial careers including at the Federal Level. John Edwards was a plaintiff’s lawyer and so was Tim Kaine.

        I can’t think of a recent criminal defense lawyer who made it into elected politics or the bench.

        But among lawyers, probably plaintiff’s lawyers because we get saddled with the reputation of the most showy and outlandish in our group and because the White Shoe firms do a lot of pro-bono crim defense work. The big firms do a lot of pro-bono work in general because it makes them look good and they have the time and resources.

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        • There is a firm here that advertises every way possible but the owner of the firm went to Georgetown which is a good law school. He does brilliant depositions.

          Lief Cabraser does a classify form of advertising which is basically funding our local NPR station.

          I think that there is a lot of snobbiness in the law. A lot of advertisements from plaintiff’s lawyer can be cringe worthy but it is a highly competitive field on the plaintiff’s side. We forget that a lot of the early ethical rules, especially the rules against posting/advertising rates, were out of a desire to keep minorities from practicing law. Drinker (of Drinker Biddle fame) explicitly said that they were designed to those Russian Jewboys out.

          So you have old firms that rest on books of business and reputations that are decades old and steady corporate clients and you have firms that do “real people” law that need a constant stream new clients/cases and the competition is fierce.

          My brief experience in doing intake shows that a good percentage of claims get rejected at intake and that a lot of other people are sent retainers and never return them because they chicken out or really just wanted a brief rant to someone. And then you get that sounded good on the phone initially but further review indicates that they aren’t so good. You can lose clients very quickly to another firm.

          So I’m sympathetic to advertising even when it seems gaudy.

          Big Firms only seem to get in trouble with their clients when their is a billing scandal or a partner jumps ship and takes his or her book of business with them.

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          • The advertising may be necessary or work, but its why I think p.i. lawyers have worse reputations. But the more I think about it, I don’t sense criminal defense layers have a bad reputation. I think you are right that its not well-traveled path to elected office.

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          • My guy doesn’t advertise. He does some marketing, but it is not in the form of advertising, and it is pretty modest. He also has been doing this for decades. He gets a lot of referrals from former clients, which I suppose is a form of having a book of business. Also relationships with medical providers. The ratio of real to not-real cases that come in these ways is actually surprisingly high. I suspect that the firms with signs on the sides of buses turn away a much higher percentage of inquiries.

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              • I know that med-mal is a strange beast. We don’t do it, but we see the occasional potential case, and pass them to a specialist. Of these, virtually none are real cases. I believe my boss once told me that in two or three decades, only two cases came out of it. These are out of potential cases that a non-specialist but informed lawyer has already looked it. The barriers are counter-intuitively high.

                That likely is the difference. With personal injury the barriers are far lower. Often liability is a non-issue, so really it is a discussion about damages (and available coverage, of course).

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    • Illinois passed $500,000 caps on non-economic damages against doctors, which the state Supreme Court invalidated under the state constitution as “special legislation.” A few years later, Illinois had the most expensive judicial election in U.S. history at the time, and the plaintiff’s bar lost. When the caps were passed again, the Court struck them down again because not enough seats had been turned.

      I’d be inclined to support a federal law that “trumped” those court decision because I find their legal basis entirely specious, even though I don’t agree with the policy of hard caps (I think a ratio makes more sense, perhaps with some minimum to make sure the economic damages proven aren’t used to pay attorney fees)

      The one piece of “special legislation” passed that I’ve heard favorable things about was the requirement of a doctor’s affidavit at the outset of a lawsuit that there is evidence of negligence.

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      • My concern is not necessarily on the cap in MedMal cases. There are very few jurisdictions that are as plaintiff friendly as California and we have had a cap for years on Med Mal non-economic damages.

        The big concern for me is the further attempts to destroy class action litigation. Everyone likes to joke about class actions and the damages but they are still very useful in a lot of litigation especially wage and hour litigation and fraud litigation.

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        • I think Illinois is pretty plaintiff friendly as well, and just looking at the med mal proposals in the link, I’m not sure those would necessarily “Trump” Illinois law except on caps. The limitations period in Illinois is shorter, but its not the length that matters, its when you start the clock.

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    • Listening to the House debate the bill makes the economic non economic distinction. The question is assume a stay at home mom how would you value her wages in the future, would you assume she would go back to work at some time? How about a child what jobs would you assume the child had when grown up?

      Note that the bill only applies to some states as Tx has had a 250k cap on non economic damages for a number of years.

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  2. The push for tort reform and caps to malpractice awards seems like business as usual for Republicans. It has had more favorable governments in power and failed to be enacted. It’s hard for me to see how it will make it through this particular legislative body.

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    • I agree it’s business as usual for Republicans, and IMO there’s very little about Trump that suggests he personally cares about this issue at all. To the extent he does, it’s because he personally has been at the receiving end of a number of threats of litigation. At the same time, his business practices made liberal use of litigation as leverage.

      So my read on Trump is he sees the threat of Big Tort Verdicts as simply part of the landscape. When he hears people like doctors and manufacturers complain that they fear big verdicts, in his heart of heart he thinks they’re being wimps. To him, the threat of litigation is either good or bad based on whether it benefits or harms Donald Trump. Litigation does both, so it’s basically a wash. In the Trumpian world view, the issue is not to blunt the tool, but to pick strategies and people who can use the tool better than the other guy. That’s how you win.

      But I’m not entirely sure that the legislative ground in which this seed has once again been planted has ever been fertile in this way. If Congressional Republicans could get their acts together and address their top-of-the-sheet priorities in a more coherent way than we’ve seen displayed so far, we might really be looking at national scale tort reform on the table right now. As it is, the Republican Caucuses of both houses of Congress appear unable to form a consensus on pizza toppings, much less agree on how to make real the single campaign promise that each and every one of them has used since 2010 to get their jobs. So for the time being, they’re kind of paralyzed. Tort reform opponents can take heart from this.

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