Declarations and Exclusions

Debate Notes: Did John Edwards Mean to Say What He Said He Meant?

A gaffe is when a politician tells the truth.
-- Michael Kinsley

I was teaching a CPCU course last night (under the auspices of the good folks at Insurance Educational Association), so I missed most of the Vice Presidential debate. In a bit of auspicious timing, however, I arrived beside my car radio just in time for the candidates's exchange on medical malpractice reform. Insurance Journal has posted the relevant excerpt.

While I was listening, I thought there were some changes in John Edwards' articulation of his and Senator Kerry's proposals for bringing down medical malpractice premiums. Here are two of the central points in that proposal as set out at page 111 of Our Plan for America, with emphasis added:

To reduce injuries and deaths from inadequate care, our plan would:

* * *

★ Require that individuals making medical malpractice claims first go before a qualified medical specialist to make sure a reasonable grievance exists,

* * *

★ Support sanctions against plaintiffs and lawyers who bring frivolous medical malpractice claims, including a “three strikes and you’re out” provision preventing lawyers who file three frivolous cases from bringing another suit for 10 years . . . .

Here is what John Edwards had to say last night, again with emphasis added:

We do have too many lawsuits, and the reality is there's something that we can do about it. John Kerry and I have a plan to do something about it. We want to put more responsibility on the lawyers to require before a case of malpractice, which the Vice President just spoke about, have the case reviewed by independent experts who determine the case is serious and meritorious before it can be filed; hold the lawyers responsible for that, to certify that, and hold the lawyer financially responsible if they don't do it; have a three strikes and you're out rule so that a lawyer who files three of these cases without meeting this requirement loses their right to file these cases.

Note the changes here: On the one hand, Senator Edwards seems to be raising the bar on pre-litigation screening, requiring a certification that the claim is "serious and meritorious" before it can be filed, rather than simply a determination that the claim represents a "reasonable grievance." In contrast, the Our Plan proposal to knock attorneys out of practice who file three or more "frivolous" malpractice cases is supplanted by a practice of suspending attorneys who file three without "without meeting this requirement," an apparent reference to obtaining the pre-filing review and certification. So, if this was an accurate version of the Kerry-Edwards proposal, an attorney can be suspended for three omissions of paperwork, but is otherwise free and clear. This was a concern I noted in my original post on this subject:

The proposal for barring attorneys who file multiple 'frivolous' suits is likely to prove illusory. 'Frivolous' is a high standard, generally requiring a showing that no reasonable attorney would ever have believed that the claim had merit. If a pre-screening requirement is also in place, the allegedly frivolous advocate will likely be able to escape by the simple expedient of having 'reasonably relied' on the opinion of the reviewing doctor.

In California, current law requires that the plaintiff in a medical malpractice case give written notice to the prospective defendant at least 90 days ahead of filing suit. (The idea is that prior notice will increase the odds of settlement prior to the start of litigation.) If an attorney representing a malpractice plaintiff omits to comply with the pre-notice requirement, the lawsuit can still proceed unimpaired, but the attorney is reportable to the State Bar based on that omission. I have not seen any statistics suggesting that this is a major source of disciplinary action by the Bar; I suspect that the reports are few and the disciplinary actions even fewer. As restated in last night's debate, the Kerry-Edwards "three strikes" proposal looks to be equally toothless.

[Frivolous afterthought: In retrospect, it would have been a great Debate Drinking Game to have knocked one back every time Senator Edwards used the phrase "John Kerry and I have a plan ...."]

Yes, Virginia, Attorneys Do File Pointless Lawsuits [Updated]

Elizabeth Edwards, spouse of Democratic Vice Presidential candidate Senator John Edwards and herself formerly a practicing attorney, spent Wednesday of this week campaigning in the State of Virginia. Naturally, given her husband's background as a prominent member of the plaintiffs' bar, she had plenty to say in the continuing debate over how best to reduce medical malpractice insurance premiums, some of it less helpful to her cause than might at first appear.

The Richmond Times-Dispatch writes:

Elizabeth Edwards, the wife of Sen. John Edwards of North Carolina, agreed yesterday that rising medical malpractice rates are driving some obstetricians and gynecologists out of business.

However, she said the crisis could be solved if the legal and medical communities weeded out those responsible for frivolous lawsuits and malpractice.

* * *

Mrs. Edwards said the legal profession should weed out lawyers who file frivolous lawsuits; the medical profession should weed out the few bad doctors, who account for most of the medical mishaps; and the insurance industry should be made to compete.

A former lawyer herself, she said a cap on malpractice awards, which the Bush administration is proposing, is not needed. States without a cap have lower premiums than states with a cap, she said. President Bush wants a $250,000 cap for pain and suffering damages.

Out of Fredericksburg, the Free Lance-Star adds:

'There are a lot of frivolous cases' brought to court, [Mrs. Edwards] said, and having a panel of attorneys weed out those lawyers who bring frivolous cases could reduce the number.

Such a group could 'make sure we root out these cases by rooting out the lawyers who file them,' Edwards said. 'The current administration has no real plan to rid the system of frivolous lawsuits.'

Edwards also said that 50 percent of malpractice claims are against just 5 percent to 7 percent of doctors. If doctors could be more vigilant in policing their own, that would help.

Just what proportion of the medical malpractice suits that are pursued to trial are unmeritorious? The decidedly non-neutral site Medical Malpractice Today¹ reports that in the year 2000 "health care providers won approximately 62% of the cases that were tried by a jury" and that on average over a six year period "patients only won 34% of the time and health care providers won 66% of the jury trials."

Roughly 2/3 of all malpractice lawsuits are unsuccessful, which I will grossly over-simplify by taking it as a sign that 2/3 of those suits are lacking in factual merit. It follows that even the authentically "bad" doctors, who are conceded to be a very small proportion of the medical population, are frequently on the receiving end of unmeritorious claims, and that genuinely "good" doctors are targeted more often than not for no good reason. When we consider that (1) an unsuccessful/unmeritorious malpractice lawsuit still has to be defended by the insurer, and (2) that the costs of defending an unmeritorious suit are roughly comparable to the costs of defending a meritorious one (and frequently higher, given that the meritorious claim is more likely to settle at an early stage in the litigation), and (3) that defense costs are a driving factor in the calculation of premium, it would seem that Mrs. Edwards' comments serve to prove the insurers' point: skyrocketing premiums for doctors really are being driven by some members of the plaintiffs' bar (perhaps as small a proportion as those "bad" doctors just mentioned) who can't or won't stop themselves from filing many too many pointless lawsuits.

The Kerry-Edwards "three frivols and you're out" solution (see earlier "Campaign 2004" posts for a description) is hardly compelling in light of the campaign's own stated figures. By definition that proposal actually permits, even encourages, the continued filing of suits that lack merit and would likely leave a significant portion of needless claims -- the ones that are "meritless but not quite frivolous" -- unaffected, with no reduction in claims costs. Better, it would seem, to reduce the frequency of claims by raising obstacles to their being filed in the first place, and to reduce or contain the severity of claims by capping, as California has done for many years and as the Republican campaign proposes to do nationally, the amounts that can be awarded, above the injured plaintiff's objectively measurable damages, for intangible, "non-economic" losses.

UPDATE: In comments to this post, The Uncivil Litigator and Ted Frank of Overlawyered quite properly take me to task for my sloppiness in the use of the statistics tossed about by Elizabeth Edwards. Their mathematics are far more reliable than mine on this point.

Even better, they bring up what really should have been one of my points originally: that the statistics that get bandied about in arguments against tort reform generaglly and med-mal reform in particular tend to focus on an incomplete sample of the costs involved. The Edwards and Cochran numbers look at jury verdicts, but leave out all of the cases that are settled -- and in my anecdotal experience, more cases are settled for purely economic reasons, to "make them go away" at a lower cost than will be involved in litigating all the way to trial, than are settled on their objective merits -- and ignore (which I did have the presence of mind to mention) the costs of defense.

With even the opponents of reform admitting with Mrs. Edwards that some very large portion of these cases are filed for no good reason, the Kerry-Edwards proposals seem to amount to little more than a cry of "Stop me before I sue again!" If the less discerning members of the plaintiffs' bar won't break themselves of the habit of filing an excessive number of suits in the hope of getting lucky or of finding the one "big one" out of the bunch, then sterner measures are needed to break that habit for them.

Regulating Regulators in the Name of De-Regulation [w/ multiple updates]

The prospect of further Federal involvement in insurance regulation is becoming a surprisingly hot topic of late. I have noted in prior posts Senator John Edwards’ interest in repealing the McCarran-Ferguson Act’s exemptions of insurers from federal regulation, at least in connection with claimed “price fixing” in relation to medical malpractice liability premiums. David Giacalone has been actively engaged on this subject, and I recommend reading his comments, attached to posts here and here.

I agree with the consensus behind David’s position that there is no particular cause to believe that federal antitrust enforcers would target information sharing activities among insurers that bear upon the accurate assessment of risk, with or without the McCarran-Ferguson exemption. I quoted the relevant bill in my original post, and acknowledged that its focus was explicitly on “price fixing, bid rigging, or market allocations” -- activities that, if proven, certainly ought to be halted or penalized.

The questions I think remain unanswered are:

(1) Is there any evidence at all that such activities are actually going on in the insurance industry generally or with regard to medical malpractice coverage in particular?

(2) Is there any evidence that the states would be ineffectual in stopping that activity if it actually did take place (i.e., is federal antitrust enforcement per se superior to state-level enforcement)? And

(3) If eliminating the McCarran-Ferguson is such a good idea, why is the proposed legislation focused on medical malpractice coverages and not on the entire insurance industry?

My personal views in favor of maintaining the McCarran-Ferguson exemption stem not from any wish that insurers should be free from all regulation or should be permitted to engage in anticompetitive activities, but from a belief that the state level is the right level at which to carry out that regulation. The insurance “ecosystem,” if you will, has evolved under a McCarran-Ferguson regime in which the states have handled the bulk of the regulation of insurance qua insurance. The re-Federalization of that regulation does not appear to offer advantages concomitant with the havoc it would likely cause. In the abstract, McCarran-Ferguson may not have been necessary when it was originally enacted, but after the entire structure of the industry has for so many decades been built around its effects I have yet to see a compelling argument that its repeal is any more necessary or that it would result in any measurable improvement or public benefit.

Having expressed a distaste for Federal involvement generally, consistency compels me to look askance initially at the latest Republican proposals for federal legislation to mandate or prohibit state insurance regulators from engaging in specified regulatory activities, such as rate regulation. I have not dug deeply enough into this to express any informed opinion yet, but Professor Martin Grace is following the issue closely on his weblog, a tort et a travers. I can’t seem to get his permalinks to work properly (nor do my trackback pings appear to stick properly on his site), but his first report on this subject is on August 23, with updates on succeeding days. The most thorough summary of the Republican proposal, linked by Professor Grace today, is this report from A.M. Best. No doubt, there will be more to say as the legislation and election roll forward.

UPDATE [8/27/04]: Following the wry advice often given to the government during the Vietnam War, David Giacalone has declared victory and gone home, promising to return his attention to the crafting of elegant haiku. His parting ode to online debate and camaraderie reminds me of an old "Far Side" cartoon, in which one of a pair of medieval torturers says to the other at the end of a long day: "I'm tired, but it's a good tired."

Rest up; there's more battles ahead to be sure.

FURTHER UPDATE [still later on 8/27/04]: Tired of technical difficulties, Professor Grace has made a discrete migration to TypePad. I have made post facto updates of my various links to his posts of the past few days. I particularly direct you to this one, that one, and this other one, too.

FINAL FURTHER UPDATE [also 8/27/04]: A good summary of where we all stand at this stage of the discussion is available, for those who are not weary of the whole thing, in this latest post from Professor Grace. I can't complain: he has given what strikes me as an accurate rundown of the positions I've taken so far, and I definitely endorse his characterization of some of the proposals from both sides of the aisle -- including the Republican-backed "SMART Act" (when, pray, are we going to oblige our legislators to grow up and overcome their fondness for cute acronyms?) that triggered this particular post -- as "'funny' federalism." That seems as good a note as any on which to leave off on the subject, at least for the weekend. . . .

Democratic Candidates: Errin' on McCarran?

For those following the medical malpractice/tort reform aspects of the 2004 presidential campaign, Martin Grace offers more [link updated 8/27] comment on the Kerry-Edwards plan to target the insurance industry's federal antitrust exemption under the McCarran-Ferguson Act. He notes in particular the reasons why tightening restrictions on information sharing is likely to make lower-priced medical malpractice insurance less available than it already is.

Decs&Excs remarked on this facet of the Democratic proposals here.

On This We Can Agree: John Edwards Questions His Own Reform Proposal

The Washington Times -- admittedly not the most reliably objective source in American journalism -- adds to the long list of profiles of John Edwards' pre-Senate career as a highly successful attorney for plaintiffs in medical malpractice cases. Nothing much new here, except the discovery that during his time in practice Senator Edwards himself questioned the value of one of the central provisions of what is now the Kerry-Edwards plan for medical malpractice reform.

The Democratic team's proposal would require that a qualified medical specialist certify the probable merit of a malpractice case prior to filing. In my initial report on the plan (here), I suggested that this is not a requirement that would make much of a difference:

Under current law a medical malpractice case is generally not viable without at least one expert witness who will opine that the defendant doctor fell beneath accepted practice standards. Pre-screening may simply require the plaintiff's attorney to find that expert sooner rather than later.

The Washington Times' story suggests that Senator Edwards agrees with my assessment:

Part of the platform that Mr. Edwards is running on includes medical-malpractice reform. The Democrats' plan would go after insurance companies that increase doctors' premiums and ban lawyers and plaintiffs for 10 years if they file three frivolous lawsuits.

One tenet of their plan would 'require that individuals making medical-malpractice claims first go before a qualified medical specialist to make sure a reasonable grievance exists.'

However, Mr. Edwards said in a 1995 interview that such pre-screening is unnecessary.

'Pre-screening as a concept is very good, but it's already done by every experienced malpractice lawyer,' he told North Carolina Lawyers Weekly.

[Note: As this has become a regular topic on this weblog, I have added a new category to the Archives to collect those posts looking particularly at insurance issues in the Presidential campaign. "Politics of Insurance - Campaign 2004" is accessible through the links at the end of relevant posts, and through the Archives links in the right column.]

Doctors Take John Edwards' Medical [Malpractice] History to Heart

More press reports roll in on the Kerry-Edwards approach to medical malpractice issues, including discussions of the likely motive for giving those proposals a high profile: overcoming doctors' hostility to John Edwards.

Senator Kerry's hometown paper, the Boston Globe reports on the campaign's larger effort to re-define Sentaor Edwards as a Friend of Doctors, rather than as their longtime nemesis:

Since first running for the US Senate in 1998, John Edwards has been the politician many doctors dislike most -- a trial lawyer who amassed an eight-figure fortune from personal injury lawsuits and became a symbol of the soaring medical malpractice insurance premiums physicians must pay.

But there is another John Edwards that the Kerry-Edwards campaign is taking pains to introduce: a man whose past legal advocacy for patients stemmed from a passion for quality health care, for allowing doctors to make medical decisions instead of insurance companies, and for unfettered medical research.

* * *

Behind the campaign's effort to recast Edwards lies a fear that doctors' anger over his trial-lawyer image could deprive the Democratic ticket of support from a medical constituency that is very much in play in this election. Polling data from recent elections show that doctors, who traditionally vote Republican, are moving toward Democrats because of concerns over health-care issues, including a patient bill of rights.

The medical profession makes up a sizable constituency: the article quotes an AMA figure putting the number of U.S. medical doctors about 853,000.

In the battleground state of Pennsylvania, medical malpractice claims and premiums are very much on the minds of health care providers, according to this story in the Bucks County Courier Times, and John Edwards professional history of pursuing medical malpractice claims represents a sizable obstacle to earning those doctors' votes in November:

The hot topic this election season for many Pennsylvania doctors is skyrocketing liability insurance costs. Because of the incumbent president's position on the issue, many local doctors said he gets their vote.

'It's the main reason I am backing [President Bush],' said Dr. John Petolillo Jr., an orthopedic surgeon based in Middletown. Insurance carriers consider his field extremely high risk.

'It's important enough to back him solely on that issue,' Petolillo said.

First lady Laura Bush addressed about 300 white-coated doctors and other healthcare practitioners Monday at the Sheraton Bucks County hotel in Falls. Dressed in a gray suit and blue scarf, her honey-colored hair tidily coifed, Bush talked about her husband's position on medical liability insurance, healthcare reform, the economy and foreign policy. She also accepted the endorsement of the Pennsylvania Medical Society.

* * *

Others at Monday's medical society event said the Democratic candidate for president, John Kerry, has alienated many doctors by choosing medical malpractice trial lawyer John Edwards as his running mate.

'Normally, we don't get involved with presidential issues,' said Dr. George Green, a board member of the Pennsylvania Medical Society. 'The choice of Edwards forced us.'

Kerry On, Wayward Son: Democratic Med Mal Updates

Coverage of the Kerry-Edwards proposals for medical malpractice reform continues to accumulate. Some of the latest additions:

♣ Walter Olson of Overlawyered probes the campaign's recurrent theme that Senators Kerry and Edwards "can achieve medical malpractice reform in the same way that Republican Richard Nixon could achieve rapprochement with China, presumably because their ticket would have the sort of credibility with the litigation lobby that the late GOP president had with dedicated anti-communists." Thus far, he is unconvinced.

♣ Readers are encouraged to revisit my own prior post on Kerry-Edwards and the McCarran-Ferguson Act for the sake of reading the detailed and articulate comment left by David Giacalone. David had hands-on, in-depth experience with the Act during his tenure at the FTC circa 1978, and suggests that I may be playing the role of Chicken Little here. If you are at all interested in this aspect of the debate -- which strikes me as being a trifle too policy-wonkish to achieve a measurable public profile in mainstream media coverage of the campaign -- David's countervailing analysis is a contribution worth your attention. (I will probably have more to say on the subject, but I want to undertake some additional investigation first.)

♣ If you look into the pages of the campaign's official statement, Our Plan for America (downloadable as a PDF from this page at the official campaign site), you'll find no additional details on the Democratic candidates' proposals beyond what has already been reported here. Senator Edwards, however, disclosed another wrinkle in an interview published today in the Rocky Mountain News: expanded tax breaks for doctors.

Q: Republicans often say rising malpractice insurance costs are forcing doctors out of rural areas, and that only tort reform can bring down health care costs. What do you think of that?

A: First of all, I think that we have the best legal system in the world. It's not perfect. And I think that there are a lot of things that we can do as a nation to help our doctors and our medical care providers with this problem (of rising malpractice insurance rates).

What John and I would do is we'd give some tax relief to doctors whose premiums have gone up significantly, so that they could have some help with that. And then on the other end, we would require - we'd put the burden on the lawyers.

We would require the lawyers who were considering filing a malpractice case to get the case reviewed by independent experts to determine that it's serious and meritorious for the cases filed, to certify that. If they fail to do it - this is the key, frivolous cases, cases that don't belong in the system now - if they fail to do it, then we hold the lawyer accountable, financially accountable.

And I'd also have a three-strikes- and-you're-out rule. In other words, if some lawyer violates that rule three times, they lose their right to file a case for 10 years or so - a substantial period of time.

(Emphasis added.)

Perhaps someone with more knowledge of existing tax law can enlighten me on this: aren't malpractice insurance premiums already deductible as a necessary business expense? (This sounds like another subject for more research . . . .)

Who You Gonna Call? John Edwards, Malpractice Insurance Trust Buster!

It looks as though I may have missed the biggest bit of news hidden away in the Kerry-Edwards campaign's proposals for medical malpractice reform, discussed below.

In his link to the previous post, Walter Olson (Overlawyered) points out the campaign's unusual "failure to raise federalism objections which ordinarily are front and center in Democratic resistance to liability reform at a national level." He is right to raise that question, because it appears that one of the principal goals of the Kerry-Edwards proposal is to chip away at the statute that has served as the cornerstone of American insurance regulation for the past 60 years.

If you re-read the quote from the Kerry-Edwards campaign site in the preceding post, you may note one provision on which I did not comment. For purposes of lowering medical malpractice insurance premiums, the Two Senators Named John propose to:

Eliminate the special privileges that allow insurance companies to fix prices and collude in ways that increase medical malpractice premiums.

"'Special privileges?' What's that about?" you may wonder, as well you should. The answer is to be found, with a little help from Google, in a May 20, 2003 Washington Post editorial, still available on Senator Edwards' own campaign site. The first reform proposal Senator Edwards offered in that editorial -- before reducing the number of "frivolous" suits or reducing "preventable medical errors" -- is this:

The most critical step is reforming the insurance industry. Today insurance companies use slow and burdensome processes to discourage both doctors and patients from filing legitimate claims. Worse still, these companies can fix prices and divvy up the country in order to drive up their profits. Even when companies don't explicitly collude, they set their rates based on a trade-group loss calculation that they know other companies will follow. In any other industry, this kind of conduct would be subject to scrutiny under the antitrust laws. But an obscure 1945 law gives insurance companies a broad antitrust exemption. Because of the insurance lobby's influence, Congress has even blocked the Federal Trade Commission from investigating insurance company rip-offs. These special privileges must go.

(Emphasis added.)

The "obscure 1945 law" to which the Senator refers is the McCarran-Ferguson Act, 15 U.S. Code, sections 1011-1015, (viewable here), which embodies the very conscious decision of the Congress -- a then-Democratic Congress -- to leave most regulation of the insurance industry to the states, rather than to the federal government. Here is a compact summary from the American Medical Association:

The McCarran Act is the federal law authorizing state regulation of insurance. The act also provides a limited federal antitrust exemption for the business of insurance, subject to state regulation and oversight, for activities such as joint data collection that help foster a competitive marketplace benefiting consumers. Furthermore, the exemption does not insulate insurers from the enforcement of state or federal antitrust laws in the context of anti-competitive business practices such as boycott, coercion or other intimidation in the marketplace.

The roll-back of McCarran-Ferguson -- and therefore the expansion of federal regulation of the insurance industry and the reduction or elimination of well-established state authority -- has been on the agenda of the plaintiffs' bar for many years. As recently as 2003, at about the time he wrote that editorial, Senator Edwards was a co-sponsor (with Senators Leahy, Kennedy, Feingold and Boxer among others) of the Medical Malpractice Insurance Antitrust Act of 2003, Senate Bill 352, the substance of which is contained in this paragraph:

Notwithstanding any other provision of law, nothing in the Act of March 9, 1945 (15 U.S.C. 1011 et seq., commonly known as the `McCarran-Ferguson Act') shall be construed to permit commercial insurers to engage in any form of price fixing, bid rigging, or market allocations in connection with the conduct of the business of providing medical malpractice insurance.

The sole purpose of the bill is to repeal McCarran-Ferguson -- but only as to medical professional liability insurance, and only in connectio with activities (the nasty-sounding "price fixing, bid rigging, or market allocations") as to which it is virtually certain that the states already have full authority to act. Not only do the individual states have the requisite authority to address claimed anti-competitive activity directly, each state also has the power and incentive to launch a direct assault on any insurance rate that is genuinely "too high." Every state already prohibits insurers from charging rates that are excessive or discriminatory, and in many states -- California among them -- premium rates must be pre-approved by the Department of Insurance before they can be used at all.

Presumably, the elimination of McCarran-Ferguson from medical malpractice insurance is intended as a prelude to repealing it altogether, "federalizing" insurance regulation as a whole. Regardless of the merits of that idea, it is troubling that the Kerry-Edwards campaign has seen fit to bury such a fundamental change in vague language appended as little more than a footnote to its other malpractice-related proposals.

Caveat emptor.

(Postscript: Thanks as well to Medpundit for linking the previous entry on this topic.)

Doctor, Doctor Gimme the News: the Kerry Cure for Malpractice Blues

Business Insurance magazine reports on statements today from the presidential campaign of John Kerry favoring “'meaningful but enactable' medical malpractice liability reform":

'I bet most people in this room don’t know that there is a policy,' said Chris Jennings, president of Washington-based Jennings Policy Strategies Inc. Mr. Jennings said that Sen. Kerry’s policy would focus on preventing medical errors and promoting patient safety but would require that malpractice claims be reviewed by medical specialists to ensure that a 'reasonable grievance exists.' Mr. Jennings said that lawyers who brought three frivolous medical malpractice claims would be barred from bringing further claims, and mediation—rather than litigation—would be an option for all medical malpractice claims. In addition, punitive damages would be barred in all medical malpractice cases except those involving 'reckless indifference to life,' said Mr. Jennings, a former adviser to President Clinton who now serves as an unpaid adviser to the Kerry campaign.

Here is the related policy statement posted on the Kerry campaign's official site, with underscoring added by Decs&Excs:

Help Reduce Medical Malpractice Premiums. As president, John Kerry will require that a qualified specialist certifies a medical malpractice case's merit before it is allowed to move forward. He will also work with states to ensure the availability of non-binding mediation in all malpractice claims before cases proceed to trial. John Kerry will make the system fairer for doctors and patients alike by preventing and punishing frivolous lawsuits. Lawyers who file frivolous cases would face tough, mandatory sanctions, including a "three strikes and you're out" provision that forbids lawyers who file three frivolous cases from bringing another suit for the next 10 years. John Kerry also opposes punitive damages - unless intentional misconduct, gross negligence, or reckless indifference to life can be established. Finally, John Kerry will work to eliminate the special privileges that allow insurance companies to fix prices and collude in ways that increase medical malpractice premiums.

There appears to be little here that is actually new.

♣ Pre-filing certification is already required in some states, and there is nothing here to suggest any safeguards to ensure that the reviewing doctors are themselves objective and reliable. Under current law a medical malpractice case is generally not viable without at least one expert witness who will opine that the defendant doctor fell beneath accepted practice standards. Pre-screening may simply require the plaintiff's attorney to find that expert sooner rather than later.

♣ Most courts encourage mediation in all cases, not just medical malpractice claims, in an effort to reduce crowded courtroom dockets. Mediation is almost always a preferable alternative to litigation, but the quality of mediators is variable and resolution always depends on both sides taking a realistic approach to the claim. There is, sadly, no way to legislate reason or good sense if any of the parties or lawyers don't have it to begin with.

♣ The proposal for barring attorneys who file multiple "frivolous" suits is likely to prove illusory. "Frivolous" is a high standard, generally requiring a showing that no reasonable attorney would ever have believed that the claim had merit. If a pre-screening requirement is also in place, the allegedly frivolous advocate will likely be able to escape by the simple expedient of having "reasonably relied" on the opinion of the reviewing doctor.

♣ In many states, the proposed changes to punitive damage law would be no change at all, while in others a "gross negligence" standard would actually expand punitive damage claims. Under current California law, for instance, "negligence" no matter how gross will not support a claim for punitive damages, which are permitted almost exclusively in cases of intentional wrongdoing and "despicable" conduct.

These proposals are likely to be greeted with skepticism at best in the insurance and professional negligence defense community, particularly coming from a campaign whose candidate for Vice President was a prominent trial lawyer. For background information on Sen. John Edwards' history and links to the national plaintiffs' bar you might start with this discussion and others at Overlawyered, or the continuing coverage to be found at the Manhattan Institute's PointofLaw.com. More favorable treatment of the views of plaintiffs' attorneys generally can be found, amidst other entertaining discussions, at attorney Evan Schaeffer's Notes from the (Legal) Underground. (See, e.g., this colloquy.)

More to come, no doubt.