July 1st, 2017

July 4th, Medical Malpractice, and the Bill of Rights

John Trumbull’s famous painting of the Declaration’s presentation hangs today in the Capitol Rotunda. It is collectively owned by the citizens of the United States.

A few days ago I wrote about an abomination of a bill that the House of Representatives narrowly passed, posing as tort “reform” in medical malpractice cases.

It wasn’t really “reform” (which implies improvement), but rather, a bill that seizes power from the states, grants protections and immunities to negligent people for their conduct that injures others, and foists much of the costs for those injuries out of the private sector and onto the wallets of the taxpayers.

But it did something else too, and I saved that for today. It also pissed on the Bill of Rights, specifically the Seventh Amendment.

Part of the law restricts pain and suffering awards to $250,000, and it also pushes many state actions into federal court.

The “problem” is the Seventh. It is a problem for those that want to seize federal power. Everyone else calls it a protection. Because that is what the Bill of Rights is, a list of protections.

For those that may have forgotten, the Seventh reads as follows:

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

So the Founders decided that any significant suit (with $20 being the arbitrary limit) shall have the right of trial by jury. Notice that there is no arbitrary top limit?

Yet that is what a Republican majority of the House did — it imposed an arbitrary top limit that does not exist, thereby stripping away the constitutionally protected right to a trial by jury for the most seriously injured of people if this bill should become law.

That right to a jury trial goes way, way back to the Declaration of Independence for us. It is the reason that I refer to July 2nd as Jury Independence Day, because that is the day that the Declaration of Independence was voted on and passed by the Continental Congress. It was two days later, on the 4th, that the Declaration was signed, but John Adams thought that it was the second that would be the day “solemnized with Pomp and Parade, with Shows, Games, Sports, Guns, Bells, Bonfires, and Illuminations from one End of this Continent to the other from this Time forward forever more.”

I post on this subject each year, and the words that follow are an adaptation of those prior messages. And the Declaration of Independence is reproduced in full after that. I like to read it in full each year at this time.


The Declaration has, as its heart and soul, a discussion of how King George III seized too many powers. And the colonists believed — and were willing to risk their lives for the principles — that power should more justly reside with the people.

And so you will see, as but one example of “the long train of abuses and usurpations” charged against the British King that forms the Declaration’s bill of particulars, this:

For depriving us in many cases, of the benefit of Trial by Jury:

And in the subsequent Bill of Rights, there are three separate places where rights to a jury are established: In the Seventh Amendment (for civil trials), the Sixth Amendment (for criminal trials) and the Fifth Amendment (grand juries for capital or infamous crimes).

It is clear that the Founders wanted powers related to both civil and criminal fact-finding to reside with the people, and not with any head of state that may be subject to whim, politics or the pressures of the moment.

This tug-of-war over how much power should reside with government and how much with the people exists to this day. Speaking broadly, it is the conservatives who want to see a smaller, less powerful government and liberals a bigger and stronger one.

But oddly enough those principles seem to fall by the wayside in the discussion of tort “reform.” When it comes to that, some conservatives, for reasons that have never been explained to me, want to give various governmental protections and immunities to others so that wrongdoers can’t be effectively hauled before the court for accountability.

This abandonment of principle happens in the pursuit of …what?  I can’t even finish the sentence as I still can’t fathom it, despite having written now on the subject for so many years.

To those conservatives that read this blog, I urge you to re-read our Declaration (and Bill of Rights) and ask yourselves why it is that, for this issue, principles of smaller and less powerful government have fallen by the wayside in favor of granting governmental protections and immunities.

And now, without further ado, Mr. Jefferson and his fellow congressmen:
The unanimous Declaration of the thirteen united States of America

When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security. — Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.

He has refused his Assent to Laws, the most wholesome and necessary for the public good.

He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.

He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.

He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their Public Records, for the sole purpose of fatiguing them into compliance with his measures.

He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.

He has refused for a long time, after such dissolutions, to cause others to be elected, whereby the Legislative Powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.

He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.

He has obstructed the Administration of Justice by refusing his Assent to Laws for establishing Judiciary Powers.

He has made Judges dependent on his Will alone for the tenure of their offices, and the amount and payment of their salaries.

He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people and eat out their substance.

He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.

He has affected to render the Military independent of and superior to the Civil Power.

He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:

For quartering large bodies of armed troops among us:

For protecting them, by a mock Trial from punishment for any Murders which they should commit on the Inhabitants of these States:

For cutting off our Trade with all parts of the world:

For imposing Taxes on us without our Consent:

For depriving us in many cases, of the benefit of Trial by Jury:

For transporting us beyond Seas to be tried for pretended offences:

For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies

For taking away our Charters, abolishing our most valuable Laws and altering fundamentally the Forms of our Governments:

For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.

He has abdicated Government here, by declaring us out of his Protection and waging War against us.

He has plundered our seas, ravaged our coasts, burnt our towns, and destroyed the lives of our people.

He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation, and tyranny, already begun with circumstances of Cruelty & Perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.

He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands.

He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.

In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince, whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.

Nor have We been wanting in attentions to our British brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends.

We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these united Colonies are, and of Right ought to be Free and Independent States, that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. — And for the support of this Declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our Lives, our Fortunes, and our sacred Honor.


October 12th, 2011

The Conservative Attempt to Federalize Tort “Reform”

As many of you know, there is a congressional “Super Committee” set up to look for ways to better balance our budget via expenditure cutbacks and/or revenue increases. And among the ideas floated by certain conservatives, is to sneak medical malpractice “reform” into the package.

I’ve railed many times against the abject hypocrisy of conservatives seeking to enlarge federal power by giving protections and immunities to those that injure others by negligence. Without me repeating myself, these are a a few, then I’ll get to the link I really want to send you to:

The New Congress and the Constitution (Will they really defend it?) (January 6, 2011)

Does the Tea Party Believe in Conservatism or Tort “Reform”? (8 Questions) (May 3, 2010)

The False Premises of Medical Malpractice “Reform” (Response to Richard Epstein in WSJ) (June 30, 2009)

Today it is someone else’s turn to hold the torch, that being Andrew Cochran, founder of The 7th Amendment Advocate, a website dedicated to educating the public and policymakers on the centuries-long history of the right enunciated in the 7th Amendment to a jury trial for civil suits.

And he writes today on the many conservative voices in academia that have risen up to oppose as unconstitutional the attempt to use federal power to limit the rights of the citizenry in state court claims: Letter to “Super Committee” Opposing Federal Tort Reform Proposals

Among those conservatives that have spoken out against the hypocritical usurpation of state rights are:

Professor Randy Barnett; longtime tort reform proponents Walter Olson and Ted Frank; Republican Members of Congress such as Sen. Tom Coburn and Reps. Ted Poe, John Duncan, and Ron Paul; and the largest association of state legislators in the country

Cochran today sends a 10-page letter to the Super Committee members, dwelling mainly on this issue: That conservatives cannot scream that President Obama’s health care law is unconstitutional as a federal power grab while at the same time asking to give the federal government more power.

The letter, filled with essential links and quotes, is here: Letter to “Super Committee” Opposing Federal Tort Reform Proposals.


January 6th, 2011

The New Congress and the Constitution (Will they really defend it?)

Today a Republican majority takes control of the House of Representatives. And their first order of business is to read the Constitution. And they want every new piece of legislation to set forth which part of the Constitution authorizes each bit of legislation.

But will Republicans really follow the Constitution when it comes to tort “reform?” My bet is no, based on a history of Republicans trying to limit consumer access to the courts. One academic favored by the right wing, Richard Epstein, arrogantly refers to the constitutional right to a civil jury trial as a “procedural feature.”

So let’s refresh, a bit, as the new House takes control. The Seventh Amendment states as follows:

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

Over at the Huffington Post, AAJ President Gibson Vance expands on the history and importance of the right to jury trial in a piece entitled Constitutional Conservatives and the 7th Amendment. He writes:

The right to a trial by jury for civil suits dates back almost 800 years, to the signing of the Magna Carta. Article 39 of the Magna Carta specifically guaranteed the right to a jury trial for civil suits and criminal cases.

Our Founding Fathers also agreed with the importance of a trial by jury. In the words of James Madison, “In suits at common law, trial by jury in civil cases is as essential to secure the liberty of the people as any one of the pre-existent rights of nature.”

Perhaps I will be pleasantly surprised and the House of Representatives will stay true to the Constitution. But based on historical precedent, I won’t be holding my breath. For on this issue it is only in theory that the political right believes in less government oversite. When it comes to protecting corporations, they do an about-face to strip rights away from the people.

Bear in mind that there are many tens of millions of dollars that flood into the politics in the legalized bribery system that we have. When politicians are asked to choose between protecting Big Business from lawsuits, and protecting the rights we have in the Constitution, it seems logical to assume that principle will fall by the wayside for many. The Constitution, after all, doesn’t write checks.

(The sketch above comes from the Watergate trial of Haldeman, Erlichman and Mitchell, and hangs on the wall of my office.)


May 3rd, 2010

Does the Tea Party Believe in Conservatism or Tort “Reform”? (8 Questions)

As the Tea Party movement gains more attention, some folks want to know exactly what they believe in. Today’s question: Do they believe in a  smaller, less intrusive, government or will they follow the Republican Party down the path of Big Government Tort “Reform”?

Since the Tea Party is a nascent and disorganized collection, I’m tossing out eight questions for those conservatives in the movement to ponder as they decide which side of the tort “reform” debate they are on.

Why are these questions important? Because the Tea Party movement is not yet corrupted by campaign money. Leaving aside the charges of racism leveled against some in the movement, and which certainly exists in some segments, I suspect that others actually care about political theory. It is for these people that I ask these questions:.

1. Do you believe in limited government? If so, does adding protections and immunities for negligent people/companies comprise bigger or smaller government?

2. Do you believe in a free market? What are the free market benefits of protecting companies that make dangerous products? Should companies that create safe products be rewarded and should companies that make unsafe products go under?

3. Do you believe in personal responsibility? If so, do you want to nevertheless limit the responsibility of negligent parties and shift the burden to others?

4. Who should pay the costs of an injury? The negligent party or the taxpayers? Will it be Medicare or Medicaid that will pay with your tax dollars? Or will it be a state fund, like the one proposed in Oklahoma? If you believe in having the taxpayers pay for injuries inflicted by others, how much extra in taxes are you willing to pay to protect the tortfeasors?

5. If you want to limit the civil justice system, does that mean you want a corresponding increase in the criminal justice system and regulation to make up for it? Or should negligent/reckless parties just get a free ride? (See: Punitive Damages: Why America is Different Than Europe)

6. Should we give the government more power by disbanding the jury system? One of the results of the Revolution against King George was establishing the right to trial by jury. It is mentioned in the Declaration of Independence as well as the Sixth and Seventh Amendments of the Bill of Rights and acts as a check on government power. (See: Should Obama Sit Jury Duty?) Do you want the government to have more power?

7. Do you want to toss out political theory in favor of the pragmatics of protecting doctors and hospitals from an avalanche of medical malpractice cases? If so, should you consider that medical malpractice payments have actually hit a new low?

8. Do you believe in states rights? Would federal tort “reform” legislation that limits the state-run civil justice systems run contrary to that concept?

The current state of the Republican Party, it seems, grabbed the tort “reform” issue many years ago despite the fact that it makes no sense at all from a conservative perspective. I’ve always assumed that this was because the party had sacrificed ideology for money.

That concept of selling the soul isn’t just true of politicians, of course. Conservative broadcaster John Stossel, for example, once confessed that he  switched from being a consumer advocate to bashing government and trial lawyers:

“I got sick of it. I also now make so much money I just lost interest in saving a buck on a can of peas.”

And there are plenty of tort “reformers” who suddenly understood the significance of what they were doing only after they were injured by the negligence of others.

But the Tea Party is without any meaningful donations, and has the luxury of staying true to conservative beliefs. Will they?


See also:

  • Why I Am A Small-l Libertarian, Not a Large-L Libertarian (Ken @ Popehat)

    I keep saying here that I’m a small-l libertarian. What does that mean? It means that I’m not a member of the Libertarian Party, and don’t have any plans to become one. Why? In part it’s because I think party identification encourages sloppy thinking and orthodoxy — it leads us to adopt positions not because we’ve concluded those positions have merit, but because the tribe with which we identify has adopted them…

  • National Survey of Tea Party Supporters, Done by the New York Times and CBS News (Volokh @ Volokh)

    …Some unsurprising data, but some noteworthy; among other things, tea party supporters are more conservative than the public on social issues, but not vastly so…

May 11, 2011 addendum:

Tea Party Leader Slams “Myth of Frivolous Lawsuits” (Cochran @ 7th Amendment Advocate)



June 30th, 2009

The False Premises of Medical Malpractice “Reform” (Response to Richard Epstein in WSJ)

There’s an old saying, “garbage in, garbage out.” If you use a false premise to substantiate an argument then the result will be worthless. And that is exactly what University of Chicago law professor Richard A. Epstein does today in the Wall Street Journal (via PofL).

His column How Other Countries Judge Malpractice pretends to support the “reform” of problems in the medical malpractice system. But he supports his arguments with some whoppers and fallacious arguments that don’t hold water.

Whopper #1, Epstein writes:

“American courts commonly think it proper for juries to infer medical negligence from the mere occurrence of a serious injury.”

This is just flat out false, and every competent lawyer that tries malpractice cases for either the plaintiff or the defendant knows it. Litigants must show — at least in NY, where I practice, and where Epstein is now a visiting professor at NYU — specific deviations from care. The jury gets a special verdict to decide if the exact deviation from practice occurred. Epstein does not identify even a single jurisdiction that allows a court to commonly infer negligence from a bad outcome. Not even one.

Whopper #2, Epstein writes:

American plaintiffs are sometimes spared the heavy burden of identifying particular acts of negligence, or of showing the precise causal connection between a negligent act and an actual injury.

Once again, Epstein misses the mark, at least in New York. For a jury must not only return a verdict regarding a specific act of negligence, but they must also find that that specific departure was a substantial cause of injury. If Epstein knows of jurisdictions that allow verdicts without showing a casual connection he should mention them. He does not.

Epstein has an impressive resume. He teaches. He writes. But nowhere in that lengthy summary of ivory tower achievements does he discuss how many juries he has picked or how many times he’s tried to convince a jury to bring back a verdict based on the silliness he propounds.

Epstein also identifies four “procedural features that drive up malpractice costs.” They are:

The first is jury trials, which can veer out of control and in any case introduce significant uncertainty.

This “procedural feature” is called a constitutional right. The Seventh Amendment‘s right to jury trials in civil actions (and statewide equivalents) is what Epstein is actually complaining about. I reprint the federal version here so that he doesn’t have to look far for it:

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

Epstein’s real problem isn’t with some procedural feature, it’s with the Bill of Rights and our nation’s founders and the desire to disperse power away from power-hungry governmental types and put it in the hands of the people. And as to uncertainty with jury verdicts, an alternative system does not ameliorate that issue. Someone somewhere still has to decide the issue. And that person (or people) will come with biases.

The second “procedural feature” is the:

“contingency-fee system, which allows well-heeled lawyers to self-finance litigation.”

Of course, if the lawyers didn’t fund the litigation, no one except the rich could bring a suit. Allowing others to fund the litigation when they see a cause worth fighting — and risking their own money for — is what keeps the courthouse doors open. Does he want to force those that have already been victimized by malpractice to fund the lawsuit as they also wrestle with paying the mortgage while incapacitated? That’s a great way to give immunity to those that were negligent.

The third “procedural feature:”

“…is the rule that makes each side bear its own costs. This induces riskier lawsuits than are undertaken in most other countries, such as Canada, England and most of Europe, where the loser pays the legal costs of the winner.”

We return again to the concept of keeping the courthouse door open. If you want to strip away the rights of the citizenry, this is the way to go. Those of modest means simply won’t be able to bring suit. (And it also may end out rewarding those that are less than honest on the witness stand, causing the injured party to be victimized yet again.)

Epstein trumpets the fact that in other countries there are fewer lawsuits as a result of “loser-pays.” But that just means that victims can’t afford to bring the suits and they are forced to bear the costs and burdens of the negligence of others.

The fourth is:

“…extensive pretrial discovery outside the direct supervision of judges, which occurs far more readily here than elsewhere.”

I’ve never heard of discovery that didn’t have judicial oversight in the event of abuses. Epstein doesn’t provide a single reference to any jurisdiction where this allegedly occurs.

Epstein also complains about the cost of litigation. Here is one way to put the brakes on it in New York: Let interest on the judgment run from the date of the malpractice. As it stands now, interest only runs from judgment, which is usually years later. Defendants, their lawyers and the insurance companies profit by dragging the lawsuit out and running the meter. (See: No, your medical malpractice case will NOT settle fast) If they knew they would have to pay interest from the time of the malpractice, they would likely take a different view of things.

In sum, Epstein fills his opinion piece with a call for “reform” that is based on little more than unsubstantiated cliches. I expect better from someone that calls himself a law professor.

Remember what the definition of tort “reformer” actually is: Someone that has never been seriously injured by the negligence of another. You can see some profiles of tort reform hypocrites at this link: Do Texas Med-Mal Damage Caps Work? (What Do You Mean By “Work?”)
More from John Stossel at ABC, who supports “reform,” even though he had no hesitancy himself in suing another for injuring him. Some “reformers” are cured when they see the consequences of their actions, but others, like Stossel, seem to stick with “tort reform for thee, but not for me.”

Links to this post:

maxwell strikes back
maxwell kennerly’s litigation and trial blog is a must-read for lawyers who practice civil litigation of almost any type. his posts are timely, thoughtful, and relevant. take this post, “‘how other countries judge [medical] malpractice

posted by [email protected] (John Day) @ July 02, 2009 5:39 AM

epstein: “how other countries judge malpractice”
richard epstein surveys the ways other systems handle litigation, and medical litigation in particular: even these features [jury trials, contingency fees, lack of loser-pays, extensive lawyer-driven discovery] aren’t the whole story.
posted by Walter Olson @ June 30, 2009 8:17 AM