It happens like clockwork. Every State of the Union George Bush has given I remember him making comments about junk medical malpractice suits of some kind. Last night he, unsurprisingly, did it again.
And every State of the Union speech follows the similar pattern of failing to provide any empirical evidence to support “junk” suits being an actual problem. I’ve never seen a study showing frivolous suits to be a problem. Have you?
In fact, just the opposite is true. Empirical research shows that the medical tort system works, except for those times that it actually favors doctors. But it doesn’t stop certain politicians from trying to perpetuate the myth of frivolous litigation.
And it’s worth noting that the contingency fee is a strong disincentive to bring bad suits, as the attorneys generally must take the risks with their own money, and since the suits are militantly defended bringing bad suits leads to attorney bankruptcy. The medical community already enjoys de facto immunity for medical malpractice in many jurisdictions for all but those instances with exceptionally bad injuries. And the federal government, and every state that I know of, also has rules in place to sanction frivolous suits when they are brought.
So there is a good reason you won’t see Bush and the tort “reformers” tout any kind of empirical evidence. Because their agenda is driven by anecdotes of the occasional bad cases brought by a bad lawyer. Not by actual studies.
On the political front, I’ve always found it odd that tort “reform” comes from the right wing of politics, since taking personal responsibility for one’s actions (or mistakes) is such an important concept. But it falls by the wayside, without explanation as to the obvious hypocrisy to political theory, when it comes to big business and medicine. Instead, the victims are asked to bear the brunt of a burden caused by others.
So too have the concepts of states rights and limited government fallen to the wayside when it comes to looking for ways to lend protections and immunities to business and medicine when they have fouled up and hurt someone. It’s certainly not the way a capitalistic society is built.
Maybe, someplace and somewhere, someone has come up with a rationalization for the political hypocrisy. If there is one that actually makes sense — a justification for giving government protections and immunities to the wrongdoers at the expense of the victims — I’d like to see it.
Addendum: Ted Frank commented on this piece at Point of Law, and I have responded here: More on Bush’s Frivolous Claim of “Junk Medical Lawsuits”