It’s reassuring to see two state supreme courts uphold the authority of the policy-making branch of government, the legislature, to make policy in the area of civil justice reform. The opinions from Georgia and Texas serve as an implicit rebuke to the Illinois Supreme Court and the ridiculous legal reasoning the majority used in February to strike down the Legislature’s enactment of medical liability reforms.

• American Courthouse, Dan Pero, “Illinois Supreme Court Turns Back Tort Reform“
• Heartland Institute, Brian Faughnan, “Illinois Supreme Court Strikes Down Tort Reform“

On Monday,  the Georgia Supreme Court upheld the provisions of the 2005 tort reform package that limited liability for emergency room medical personnel. The Insurance Journal reported on the court’s decision in Gliemmo v. Cousineau (opinion): “The 4-3 ruling turned aside complaints that the law is unconstitutional because it gives special liability exemption to emergency medical care providers, despite general laws governing negligence claims that apply to all other health care professionals. The Georgia Constitution prohibits special laws that are not applied uniformly throughout the state and when general laws on the same issue already exist.” The ER Statue limits liability for certain emergency health care providers unless there is “clear and convincing evidence” of gross negligence.

• Atlanta Journal-Constitution, “Ga. Supreme Court upholds ER statute”
• Columbus Ledger-Enquirer, “Ga. Supreme Court upholds tort reform provision”

The Texas Supreme Court last Friday unanimously upheld the constitutionality of the state’s 10-year statute of repose on medical liability lawsuits. In the opinion in the case of Methodist Healthcare System of San Antonio et al. v. Rankin, Justice Don Willett wrote that the 2003 law was “a reasonable exercise of the Legislature’s police power to act in the interest of the general welfare.”

Attorney General Greg Abbott applauded the decision in a news release, citing the amicus brief his office had filed: “A decade is a long time to wait for a lawsuit to end – let alone for one to begin.” The brief further explained that “… our legal system does not remedy injuries in perpetuity. Evidence grows stale; eyewitnesses move; records become lost; and parties receive assurances that courts will not reexamine acts from the distant past that have long since faded from memory. The rule of law is served by clear rules – and that includes traditional rules governing the timing of suit.”

• Fort Worth Star Telegram, Texas Supreme Court rules that patients can’t sue for medical errors found …”
• Legal Newsline, Texas medical malpractice law survives challenge”
• Austin American-Statesman, “Court says different deadlines apply to surgical sponge lawsuits“

Since liability reform was such a hot issue this week, here’s Jackson Browne at his poppiest, “Lawyers in Love.” Performed at the Rockpalast, Germany, 1986. He reports, “I hear the U.S.S.R. will be open soon, as vacation land for lawyers in love.” Prophetic.

And here are 50+ audio downloads of Warren Zevon performing, “Lawyers, Guns and Money.”

P.S. The Wall Street Journal wins today’s award for most gratuitous headline reference to a member of The Band, “Levin Takes Helm at Ways and Means.” OK, but try to work “Danko” into a headline.

As America waits to learn if President Obama’s latest health care proposal makes any move toward  liability reform, we offer these words from another President from Illinois.

Never stir up litigation. A worse man can scarcely be found than one who does this. Who can be more nearly a fiend than he who habitually overhauls the register of deeds in search of defects in titles, whereon to stir up strife, and put money in his pocket? A moral tone ought to be infused into the profession which should drive such men out of it.

Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser — in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough.

From “Notes for a Law Lecture,” Abraham Lincoln, circa 1850.

(Hat tip, Texans for Lawsuit Reform.)

Rep. Darrell Issa (R-CA) in Politico, “Bipartisan health care reform must include tort reform“:

The unsustainable path of rising costs is a serious national problem. Currently, health care spending exceeds $2.5 trillion per year. By 2019, it is expected to top $4.7 trillion per year. Any hope for cost containment would involve comprehensive medical malpractice reform to end the practice of defensive medicine, close the loopholes that allow frivolous lawsuits to clog up the system, and set reasonable limits on jury awards.

Compare that tone to a news release from the American Association for Justice:

“Opponents of reform have repeatedly attacked injured patients and used the malpractice issue to hijack the health care debate,” said AAJ President Anthony Tarricone. “If health care reform makes medicine safer, then fewer patients will need legal recourse – a win for everyone. But it is unconscionable to tell injured patients that they should be left with no recourse if injured through no fault of their own.”

Advocates of tort reform have repeatedly attacked injured patients? That’s just ugly and shameless.

We’ve had a few posts on the medical liability issues involved in health care reform and the Blair House event at Point of Law.com:

• Medical liability reform mentioned, in passing, sort of
• More than a mention
• On medical liability reform, a base misrepresentation
  

The President’s health care proposal released Monday gave just a passing nod, a tiny quiver of a head shake, to the issue of medical liability reform. Wendell Goler of Fox News asked White House spokesman Robert Gibbs about the absence of tort reform at yesterday’s press briefing:

Q No provision that I see here to accommodate the Republicans call for medical malpractice reform.

MR. GIBBS: Well, first and foremost, the President and the Secretary of Health and Human Services use the authority — regulatory authority that had existed for years to set up demonstration projects in states regarding medical malpractice. And look, Wendell, I think it’s an area which will probably be addressed in the very first section of what’s discussed on Thursday, and I think the President is anxious to discuss it.

Q The President expects Republicans to bring that to the table on Thursday.

MR. GIBBS: I have read that, yes.

Q And does he have an open mind about it?

MR. GIBBS: Absolutely.

Here’s the relevant section from the White House website devoted to the President’s proposal, “Republican Ideas Included in the President’s Proposal,” in which the Blair House confab may undertake to “Review a few of the Republican initiatives included in legislation passed by Congress” (do you like that “a few?”):

Advances medical liability reform through grants to States: Provides grants to States to jump-start and evaluate promising medical liability reform ideas to put patient safety first, prevent medical errors, and reduce liability premiums.

* (Sources: S. 1783, “Ten Steps to Transform Health Care in America Act” (Enzi bill); H.R. 3400, “Empowering Patients First Act” (Republican Study Committee bill); H.R. 4529, “Roadmap for America’s Future Act” (Ryan bill); S. 1099, “Patients’ Choice Act” (Burr-Coburn, Ryan-Nunes bill))

The grant program to states specifically rules out demonstration projects designed to limit medical costs and defensive medicine, so the President does have room to make a gesture — a more forceful nod of the head — toward the Republican position on the issue without getting on the wrong side of the trial lawyer constituency. (See Philip K. Howard, WSJ, “Why Medical Malpractice Is Off Limits.”)

The President’s new health care proposal posted today at 10 a.m. has this to say about medical liability issues. It’s in Title VI, Transparency and Program Integrity.

And it gives states flexibility to propose tort reforms that address several criteria, including reducing health care errors, enhancing patient safety, encouraging efficient resolution of disputes, and improving access to liability insurance.

States get flexibility to propose tort reforms. Thanks, federal government!

Of course, what’s missing from that list is “reduce health care costs.”

It appears the President is counting on the $20 million demonstration grant program for state initiatives to carry the weight. As we argued in a post at the Point of Law legal blog, the program’s rules discourage medical liability reform that seeks to limit costs or the expensive practice of defensive medicine.

UPDATE (1 p.m.): Jonathan Cohn, a senior editor at The New Republic, wrote a column today at Kaiser Health News anticipating the President’s proposal, addressing politics and tort reform. From “Malpractice Reform: A Test Case for Bipartisanship At The Health Summit“:

Ever since President Barack Obama announced he’d be having a bipartisan meeting to talk about health care reform, Republicans have been denouncing it as a charade. He’s not really interested in their ideas, they say. And he doesn’t really want their support.

But is the problem that Obama won’t listen to the Republicans–or that the Republicans won’t listen to Obama? One way to answer that question is to watch what happens at Thursday’s health ’summit’ meeting if discussion turns to medical malpractice reform.

Maybe the lack of any serious tort reform in the President’s plan actually represents a sophisticated strategy at work, setting the stage so the President can make a high-profile concession to the Republicans at the Blair House event. Yeah, maybe that’s it.

The Hill previews the upcoming Blair House health care confabulorama in the context of medical liability reform, i.e., the possiblity of the President reaching out to Republicans by again making a gesture on tort reform. The trial lawyers say no way, man, he better not. From “Trial lawyers to Obama: Don’t deal on tort reform in healthcare negotiations.”

“I would hope this would be an area we just don’t go,” said Linda Lipsen, vice president for public affairs at the American Association for Justice, the trade group for trial attorneys.

Lipsen said. “The last thing Congress should be doing is eliminating people’s rights when the real issue is safety in hospitals.”

This is the sum of the American Association for Justice’s argument against tort reform: Costs of health care are not the issue, medical errors are the issue. It’s a false dilemma, an either/or choice that makes no logical sense.  In the real world you can actually address the frivolous lawsuits, exorbitant damage awards and the costs of defensive medicine AND hospital safety.

Also in The Hill, “White House snubs budget panel leaders in health summit invites“:

The White House did not invite House or Senate Budget Committee leaders to its healthcare reform summit later this month, including a Republican who recently offered to work with President Barack Obama to strike a bipartisan deal.

The White House letter of invitation to the Blair House meeting is here, and the list of invitees is here.

The Washington Post’s opinion page today draws an unexpected lesson from Scott Brown’s victory in the Massachusetts Senate race in an editorial, “For Democrats and Republicans alike, lessons from the Massachusetts Senate election“:

The White House answer will be: We tried, and Republicans didn’t want to play ball. That’s true, and the growing strength of the party’s Tea Party wing is making cooperation ever more difficult.

But imagine that Mr. Obama had refused to take the Republicans’ no as his final answer. The president acknowledged, for example, that malpractice litigation is a factor in driving up health-care costs. He signaled he might be open to its reform if Republican senators would support his overall framework. When none did, malpractice reform fell by the wayside, which was the predictable response; why offend a Democratic interest group (trial lawyers) for no apparent political gain? But Mr. Obama could have insisted: This is a good idea, not just a Republican idea, and it belongs in health-care reform. A series of such steps, difficult as they would be, might have a real effect on public opinion and the political climate.

Agreed!

California Gov. Arnold Schwarzenegger proposed a “California Jobs Initiative” in his State of the State address last week, a legislative package he described in more detail at an event Monday in Torrance. The site was Ace Clearwater Enterprises, which manufactures complex formed and welded assemblies for the aerospace and power generation industries. (The company president is Kellie Johnson, a member of the NAM’s Executive Committee.)

The Governor’s plan is quite substantive, framed around these goals: To create 100,000 new jobs and train an additional 140,00 Californians; to streamline regulations to get shovels into the ground, extending the home buy tax credit; and to eliminate sales taxes on green-tech manufacturing equipment.

The fifth element — tort reform — is worth of special note given the efforts to block or even reverse legal reform in Congress. The fact sheet for the jobs initiative summarizes the section, “Reforming The Legal Climate For California’s Businesses”:

To foster an atmosphere where businesses can thrive, the Governor will propose a series of changes to regulations governing class action law suits, products liability suits and seek to cap punitive damage awards. Unfair and frivolous suits impact where companies locate or expand. California’s current litigation laws lead to large settlements with little value to consumers but become worth millions to lawyers at the expense of California businesses. Current statutes also impede growth by holding businesspersons liable for defective products - even if the seller had no knowledge or control over the defect - and allowing for punitive damage awards that are wildly unpredictable among similar cases.

The Governor will propose a set of statutory changes that will set forth clear guidelines for class action lawsuits improve California’s litigation climate by allowing defendants to appeal class action certifications and by requiring the plaintiff rather than the defendant to pay for notification to other potential class members. In addition, these reforms will provide for limitations on the scope of damages assessed against business persons for defective products and eliminate unreasonable and excessive noneconomic and punitive damages awards.

For more, see the the California Civil Justice blog, “Gov. Schwarzenegger Urges Legal Reforms to Improve Climate for California Businesses, and Dan Pero at AmericanCourthouse.com, “Schwarzenegger to Fight for Legal Reform.”

The American Association for Justice — the trial lawyers lobby — held a press briefing Monday to outline the group’s legislative agenda for 2010. After the usual anti-business fulminations, the AAJ’s news release offers a list of special interest legislation for the plaintiffs’ bar, including the coded language for opposing medical liability reform in Congress: “Protecting patients injured by medical negligence.” That’s a laudable goal, of course, but limits on non-economic damages do not in any way diminish patient protections.

So far, so good for the litigation lobby. The Senate’s health care bill contains provisions to create state demonstration projects on medical liability that actually prevent effective, cost-saving reforms. As the AAJ’s president, Anthony Tarricone, boasted in an e-mail to members in late December:

I am pleased to report that this bill is clear of any provisions that would limit an injured patient’s rights concerning medical negligence claims. This is a stunning victory for your clients considering great pressure from the insurance industry and other interests to include medical malpractice tort “reform” in this bill. While there is a provision for demonstration projects, it provides an absolute opt-out clause for plaintiffs at any time. While some states may embark on demonstration programs we find objectionable, the opt-out provision for plaintiffs minimizes this concern.

Still, as the intraparty negotiations continue over the health care legislation, it’s the House version that may contain the most dangerous provision, an invitation for more lawsuits that Victor Schwartz of Schook, Hardy and Bacon identifies as a “trial lawyer earmark.”

In a news release from the American Tort Reform Association, Victor points to Section 257 in the House-passed legislation.

“Buried in the House health care bill is a multibillion-dollar bonanza for the trial lawyers,” explained ATRA general counsel Victor Schwartz, referring to Section 257 of the legislation. “The section was inserted without one moment of hearings on its merits.”

He said Section 257 “would empower state attorneys general to hire their trial lawyer friends and bring cash-heavy private lawsuits against practically anyone – small and large employers, health care providers, insurers, and others – for any violation of any one of thousands of regulations that will flow from the bill. The section is not in the Senate bill, but trial lawyer lobbyists with total access to the House and Senate leadership are prepared to do everything possible to keep it in the final legislation.”

It’s a stealth campaign, says Victor (who has represented the NAM in legal cases). And stealthiness explains why the AAJ did not mention Section 257 in its list of priorities.

The House health care bill is H.R. 3962, the Affordable Health Care for America Act. Here’s the language:

SEC. 257. ACTIONS BY STATE ATTORNEYS GENERAL:
Any State attorney general may bring a civil action in the name of such State as parens patriae on behalf of natural persons residing in such State, in any district court of the United States or State court having jurisdiction of the defendant to secure monetary or equitable relief for violation of any provisions of this title or regulations issued thereunder. Nothing in this section shall be construed as affecting the application of section 514 of the Employee Retirement Income Security Act of 1974.