Obama on Tort Reform
Barack Obama on Tort Reform
The new government is poised to take over in a little more than a month. Hence, I thought it would be a good time to take stock of where our President-Elect stands on the tort reform debate, and what we can expect to see in the next four years on the personal injury front. As discussed in the previous article on tort reform, the term tort reform stands for legislative measures designed to limit plaintiffs’ recovery and to make it harder for individuals to bring claims against businesses in general. So, does Barack Obama support limiting recovery for personal injury claimants or does he advocate increase in the discretionary decision making power for juries and state courts?
So far Obama has manifested mixed signs pointing in both directions. As a Senator, Obama was one of the few Democrats who voted for the Class Action Reform Act (CAFA). The Act was criticized by the Plaintiffs’ bar as hurting personal injury claimants. Perhaps this was a chance for Obama to show that he can transcend party lines. Critics claim that his votes on legal issues have been carefully designed to create an image of evenhandedness that may disappear when he is in office. They claim he voted for CAFA only after it was clear it would pass, and did so after voting for several Democratic amendments that would have gutted the bill. The Act made the requirement of “complete diversity” of citizenship inapplicable to class actions, and provided federal jurisdiction when some class members and some defendants are from different states. It also eliminated the principle that the claims of class members cannot be aggregated to meet the amount-in-controversy requirement, and provided for federal jurisdiction when the total amount in controversy in a class action exceeds $5 million. The effect was to allow most class actions with classes or defendants including citizens of more than one state to be filed in or removed to federal courts known for their tougher stance on granting injury awards.
Nevertheless, it appears that Obama can still be redeemed. He supports allowing juries to make a determination in tort cases with respect to how much compensation should be awarded. Moreover, Obama and Clinton were among those who introduced the Medical Error Disclosure and Compensation Bill which would have allowed doctors to more freely communicate with their patients after errors are committed. The Bill would have mandated a vast data-collection system to track medical errors and encouraged injured patients to negotiate settlements rather than sue. In 2006 Obama and Clinton co-authored an article in the New England Journal of Medicine, “Making Patient Safety the Centerpiece of Medical Reform” noting that 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. More information will stem the proliferation of malpractice lawsuits, but it also creates a risk of increased liability for the medical providers.
Finally, appointment of the judiciary is an area where the new administration can have a major influence on the personal injury field. Judges are one of the most effective ways the candidate can implement his vision on the ground. Actuarial statistics suggest the president will nominate one and possibly two Supreme Court justices to join the court, now led by conservative Chief Justice John Roberts.
The President Elect is taking a middle ground leaning toward greater recovery for the injured party. Neither being totally for or totally against every tort-reform proposal makes good sense and good public policy. The issues raised are complicated and need to be looked at with regard to the legitimate rights of both injured plaintiffs and accused defendants — assuring that all litigants get justice and that our justice system is efficient and fair. There is no simple fix that can assure that the injured are fully compensated and that defendants are treated fairly both when blame is assigned and when damages are measured.
To learn more abput personal injury issues in Maryland please read personal injury issues on our website. To learn about our personal injury lawyers read firm bios on either Andrew Bederman, Roger Greenberg, or Jason Fernandez click here.
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