|
It’s no secret that those of us in the trial bar largely supported President-Elect Obama’s candidacy. But with Obama breaking party lines and voting for the Class Action Fairness Act, I don’t think it’s a slam dunk that tort reform roll backs will be raining down for trial lawyers like manna from heaven. Obama’s statements on tort reform are thin, but here are my thoughts.
Preemption. Obviously, the hot topic in the news right now is preemption. There has been a lot of speculation recently (Pharmalot; WSJ Health Blog) that an Obama presidency would mean a roll-back of the recent Riegel decision and any pro-industry decision in Wyeth. Given that Congress is already taking some action to reign in preemption, I am optimistic that something will be done.
Medical Malpractice. Will the "Sorry Works" movement gain some traction? The movement seeks to encourage physicians to be able to say that they’re sorry for adverse results without consequences in resulting medical malpractice litigation. The proposals range from simply making apologies inadmissible to giving doctors some type of limited liability protection for admitting their errors (the latter being extreme in my opinion).
Obama and Hillary Clinton were among those that introduced the Medical Error Disclosure and Compensation Bill. In a 2006 New England Journal of Medicine article, Obama and Clinton noted:
Studies show that the most important factor in people's decisions to file lawsuits is not negligence, but ineffective communication between patients and providers. Malpractice suits often result when an unexpected adverse outcome is met with a lack of empathy from physicians and a perceived or actual withholding of essential information. Stemming the causes of medical errors requires disclosure and analysis, which create tension in the current liability climate.
While the bill doesn’t provide specifics, I think it’s reasonable to suspect some type of reform that allows doctors to more freely communicate with their patients after errors are committed.
Incidentally, I recently had lunch with one of our Texas state representatives, and I think that he (a Democrat) plans to introduce a proposal in our 2009 legislative session making physicians’ apologies inadmissible. I suggested some type of reciprocal agreement that if the doctor didn’t apologize then they lose their limitations on liability under our state laws, but I don’t think that’s going to fly. It was worth a shot.
Judiciary. This is likely to be Obama’s biggest effect on the tort system, and I don’t really have an appreciation of where these are likely to turn out. We’ll just have to wait and see until the judicial nominations start rolling in.
Does anyone else have any thoughts?
 |
Subscribe to this comment's feed
