Saturday, June 13, 2009

Obama to propose medical malpractice reform?

President Obama will speak to the American Medical Association on Monday and there is speculation that he will support some form of medical malpractice reform. This would be a terrible blow to opponents of tort reform, but unfortunately it would not be terribly suprising. Obama supported malpractice caps in Illinois in the past. Stay tuned.


Jeremy said...

Professor Bernabe,

In regards to President Obama's push for overall Health Care Reform, what are your thoughts on the fact that the Administration built tort protection into Chrysler's bankruptcy plan and that GM is about to get the same deal?

The tort protection will prevent anyone who has been, or will be, injured by defective Chrysler and GM vehicles sold before the bankruptcy from filing product liability cases against them. This also means that the NHTSA will not track the injuries, preventing important recalls on defective parts.

Ultimately more disabling injuries and deaths will occur, which will lead to more people relying on Social Security Disability and Medicare to survive. This puts more finacial strain on govenment funded programs. I can't imagine that this is the type of health care reform President Obama wants!

The other disturbing peice of this is that these bankruptcies are being financed with our tax dollars. Our money is being used in a manner that blocks us from excercising our 7th amendment right to hold Chrysler and GM accountable in a civil trial!

Your thoughts?

Alberto Bernabe Professor of Law said...


There is a good article on this in last week's National Law Journal (which I now realize features you in it). In a way, the "protection" is not new. There is case law about whether a "successor entity" (the new entity that emerges after a company has been restructured) should have to respond for the former entity's conduct or products. I am not sure, however, how much of that case law is about pending litigation.

My opinion is that it wrong to avoid liability (or possible liability) by declaring bankruptcy, but that is the nature of bankruptcy law. Our system places less value in the rights of injured victims than in the rights of other creditors. Add that to the efforts of "tort reformers" who want to provide less access to judicial remedies and less compensation for victims and it is not a pretty picture.