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 . . . .)

Comments

[david giacalone]

Thanks for your typically gallant words about my dissenting Comment. I look forward to your additional thoughts, but -- to keep things interesting -- please don't let facts, law or equities get in the way of your argument.

Perhaps Edwards is thinking on actual tax credits rather than mere deduction for excess malpractice insurance expenses.