Different Sides Of An Issue
October 2008
Can you believe the presidential election is just a few weeks away? Why, it seems like the campaign just started 157 years ago. Our long national campaign is nearly over, and if you'll pardon me, a few final thoughts.
We pretty much know what the candidates say they would do for our personal lives, but what impact would each have on our profession?
McCain doesn't have a law degree. Obama does, but he didn't practice much, having spent a short time in a Chicago firm, so any decisions they make won't come from experience in the profession -- which may not be a bad thing.
On medical liability reform, McCain states: We must pass reform that eliminates lawsuits directed at doctors who follow clinical guidelines. (www.johnmccain.com)
Obama may agree, having once said while campaigning for a state senate seat, "Anyone who denies there's a crisis with medical malpractice is probably a trial lawyer." (MedPageToday.com -- Jan. 7, 2008)
McCain says that tort reform is a top priority and has supported caps on awards and expressed some support for a loser-pays rule. "We cannot let the search for high-quality care be derailed by frivolous lawsuits and excessive damage awards ... Liability reforms should eliminate lawsuits for doctors [who] follow clinical guidelines and adhere to patient safety protocols." (MedPageToday.com - Jan. 7, 2008)
Obama and Hillary Clinton co-sponsored the National Medical Error Disclosure (MEDiC) Act of 2005.
Under this program medical errors are reported to a designated patient safety officer. If it is determined that the patient was injured as a result of the standard of care not being followed, the medical provider would be required to disclose this to the patient and offer to enter into negotiations for fair compensation. (www.clinton.senate.gov)
The bill failed. Obama then told Clinton it was all her fault, that she could forget about ever being his vice presidential pick, and that the light blue pantsuit was just atrocious.
McCain voted against MEDiC, but previously co-sponsored with senators Kennedy and Edwards a bipartisan Patient's Bill of Rights. That bill would allow a cause of action against persons responsible for issuing or managing health insurance plans upon a failure to exercise ordinary care in making a decision on a claim for benefits which proximately causes the injury or death of a participant or beneficiary. Recovery could be for economic and noneconomic damages. (Thomas.loc.gov -- Search for S.1052 Sec. 302 (a) n (1))
It would have allowed additional suits to be filed in state courts, taking a cue from Pegran v. Herdrich, 530 U.S. 211 (2000), and also a limit of $5 million on punitive damages in federal district court. (Thomas.loc.gov -- Search for S.1052 Sec. 302 (a) n (10)). But that bill failed.
One that did pass saw McCain and Obama on the same side.
McCain sponsored the Class Action Fairness Act of 2005. (28 U.S.C. 1332 (d)) The purpose of this bill was to provide "heightened judicial review" of settlements and allow removal of a class action if there is minimal diversity and the aggregate amount in controversy exceeds $5 million. Obama supported the bill even though it was opposed by southpaws Durbin, Kennedy, Biden, Boxer, and Leahy.
Obama and McCain jointly opposed an asbestos reform bill, which was designed "to create a fair and efficient system to resolve claims of bodily injury caused by asbestos exposure." The bill failed on a "procedural" vote. According to the Senate Democrats' website, this bill would have provided access to a timely independent external appeals process to address health plan grievances. (democrats.senate.gov/pbr/pbor.html)
McCain also voted for a bill that would bar lawsuits against manufacturers and dealers of firearms, and a bill that would place caps on damage awards in med mal cases against OB-GYNs. (www.clubforgrowth.org - 3/12/07). Obama was in third grade, out riding his bike and therefore unavailable to vote.
On the selection of judges, well, don't expect much agreement there.
Obama is quoted as saying: "We need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom, to be poor, or African-American, or gay, or disabled, or old. And that's the criteria by which I'm going to be selecting my judges." (www.allbusiness.com - May 1, 2008)
McCain believes that "one of the greatest threats to our liberty and the constitutional framework that safeguards our freedoms are willful judges who usurp the role of the people and their representatives and legislate from the bench. As president, he will nominate judges who understand that their role is to faithfully apply the law as written, not impose their opinions through judicial fiat." (www.JohnMcCain.com)
Quite often congressional gridlock thwarts many of the bills seeking substantial changes in the legal system. But if the composition of Congress gives a heavy hand to one side, significant legislation affecting our practice could hit the president's desk for signature.
But he'll be out campaigning for the 2012 race and won't have time to sign it.
