Clifford’s Notes: The candidates and tort reform

By Robert A. Clifford
Clifford Law Offices

For the first time in history, the Illinois presidential primary will be held this month. As voters get ready to head to the polls Feb. 5, I researched the tort reform positions of some of the candidates at this early point in the race and report them here. For the most part, opinions on damage caps are split along party lines, with Democrats generally voting against arbitrary monetary caps.

It’s safe to say that Republican candidates stand shoulder-to-shoulder on the issue of tort reform. Analyzing any nuances in their position — such as former Sen. Fred Thompson’s mixed voting record promoting a hands-off federal government and stronger states’ rights — would be a pointless exercise. Instead, I will focus my column on the major Democrats in the race.

Sen. Barack Obama (D-Ill.) has told audiences of which I have been a part, that he ­favors protecting victims’ rights in court, yet, shortly after becoming a U.S. senator, he voted in favor of the Class Action “Unfairness” Act. That law, signed by President George W. Bush in 2005, limits victims’ rights in possible class-action lawsuits and requires many types of cases to be heard only in federal court, shutting out state court as a possible option. Furthermore, Obama’s vote in favor of caps on non-economic damages in medical malpractice cases while in the Illinois General Assembly also is troubling.

Sen. Hillary Clinton (D-N.Y.) has stated her alliance with trial lawyers and victims of malpractice, and her husband, the former president, was a stalwart in supporting the civil justice system.

But Clinton certainly is better known for pushing universal health care in this country, and voting in favor of the popular 2001 ­Patients’ Bill of Rights that, nonetheless, failed in Congress. However, versions of her failed universal health care plan in the early 1990s contained caps on damages in medical malpractice cases, and one must wonder what deals may be cut if national health care comes to the forefront after the November election.

It also should be noted that Clinton and Obama co-sponsored the National Medical Error Disclosure and Compensation Act of 2005, a bill that, in part, requires hospitals to disclose errors to patients and creates a national patient safety database. At the same time, the bill proposed to create a Department of Health and Human Services program that would seek early compensation for patients and offer liability protections in exchange for disclosure of errors and apologies, measures that are not necessarily in a patient’s best ­interest, given that the full extent of an injury may not be known for some time. And keeping doctors’ errors a secret works against the interests of future patients.

The person who has been the most consistent and up-front about his views on tort reform is Sen. Joseph Biden (D-Del.). Although his ­recent showing in Iowa caused him to drop out of the race, his experience and likeability make him a possible running mate on the Demo­cratic ticket. What is particularly surprising is that, despite the fact that Biden comes from a state that is known for its ­favorable corporate climate and serves as
the headquarters for many companies, he fully supports the civil justice system. Biden must be applauded for his adamant support of victims’ rights.

As a former trial attorney, former Sen. John Edwards (D-N.C.) is, perhaps, the most straight­forward in his approach on caps. Having ­represented victims of negligence, he has a great sensitivity to the issue, as well as an awareness of the need to be consistent in his approach to the problem of victims’ rights.

The issue of caps on damages is one that is of acute interest in this state in light of the fact that the Illinois Supreme Court will ­decide this matter for the third time. Cook County Circuit Court Judge Diane Joan Larsen ruled in November that the $500,000 cap for doctors and $1 million cap for ­hos­pitals on non-economic damages, such as pain and suffering, violates victims’ rights. Twice before, in 1997 and 1976, the Illinois Supreme Court has ruled such caps are ­unconstitutional.

As we approach the Illinois primary, the din of tax cuts, health care, oil, terrorism, and Iraq drown out any talk of tort reform. There is not a victims’ group that binds together those who have been hurt, or family members killed at the hands of malpractice or other negligence. It is left to their lawyers to try to see that laws are fair and the playing field is level.

Regardless of who becomes president in November, our government should not make it more difficult for people who have been injured to receive compensation from the
very person or entity that caused the harm.

It remains to be seen whether November’s election will bring more hardship for those injured by wrongdoers.