NCPA - National Center for Policy Analysis


September 3, 2004

Medical liability reform has come to the forefront of the Kerry/Edwards campaign, however, the proposed reforms are a mixed bag, says Walter Olson of the Manhattan Institute.

"Our Plan for America," the Kerry/Edwards policy document, lists five proposals for addressing the medical-liability crisis. Some of the five are helpful and constructive and some the reverse, but taken together they give Kerry's backers in Big Law no reason to feel threatened or betrayed, says Olson:

  • Requiring signed certificates of merit by physicians before lawyers can pursue a case; this remedy has had little effect in states with out-of-control malpractice suits such as Pennsylvania.
  • Requiring non-binding arbitration before a trial; mediation has been helpful in states that require it.
  • Eliminating punitive damages for conduct that is not considered grossly negligent; such a measure would help in product liability suits but this is not a major issue in malpractice suits.
  • Implementing a "three-strikes-and-you're-out" for frivolous lawsuits; supposedly, lawyers who filed three bad suits would lose their right to sue for 10 years; the legal definition of frivolous is so narrow that few lawyers would be subject to the threat of sanctions.
  • Holding insurance companies liable for anti-trust offenses if they share information with each other, even if it results in making it harder for insurance companies to determine risky practices and specializations.

Until we see more details on the Kerry proposals, says Olson, we should resist the temptation to dismiss them as no more than an insincere feint to the center. However, on curbing the excesses of the American litigation system, we may be nearing the end of a national debate on whether, and moving on to a debate on how.

Source: Walter Olson, "Symbolism 1, Substance 0," Wall Street Journal, August 23, 2004.

For WSJ text (subscription required):,,SB109321456756897971,00.html


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