My favorite author, Ayn Rand, believed that the enemies of free market capitalism included communists/socialists and politicians who practiced chronyism. The vast majority of Americans agree that communism and socialism are failed economic systems, but it seems that just as many Americans fail to recognize the serious danger to our free market capitalist system that is posed by chronyism in Washington. Both parties practice captitalism- killing chronyism. An upstart automobile company that strives to produce a vehicle that runs on something other than gasoline stands very little chance of out-competing an entrenched company that relies on lobbyists and bailouts to stay in business. The leading manufacturers of wind turbines used to be based in the USA. The oil lobby forced them to move to Germany by ending their tax credits while extending those credits to oil companies. That’s not free-market capitalism, but rather unfair chronysim. The latest hypocracy comes from the politicians who, out of one side of their mouths support states’ rights, shrinking the federal government, a return to free market solutions, and a return to the Constitution, while out of the other side, they support whatever their special interest groups want, which right now is so-called tort reform.
The last time I checked, this country favored a capitalist sytem for doctors. The best surgeon in a locality should be able to charge more than the worst surgeon. Most doctors are excellent. However, every town and city has its worst doctor in a particular field. Sometimes that "worst" doctor is so bad that he or she is an embarassment to other doctors who secretly would not allow that doctor to treat their pet hamster. In a former firm, my medical malpractice defense colleagues represented an OB/GYN who was sued multiple times for repeatedly failing to read PAP smear reports returned to her/him from the lab. She/he would stick the report in the file and not review it until her/his patient returned for her annual check up. On several occasions, by the time of the next check up, the patient’s cervical cancer, which had been treatable 12 months earler, was now terminal. In a pure capitalist society, lawsuits would have driven this bad apple out of business. However, my state had a relatively low cap on medical malpractice awards ($1 million at the time), and this and other bad apple doctors simply bought insurance for $1 million and didn’t sweat it. My state also requires medical malpractice attorneys to certify, before they are even allowed to file a medical malpractice lawsuit, that one or more physicians have agreed to provide expert testimony that the defendant doctor breached the standard of care and that the breach proximately caused the patient harm. Moreover, in all states, medical malpractice lawsuits are risky business propositions for plaintiff’s lawyer, costing $50,000 to $100,000 in costs advanced that probably will not be recovered if the case is lost. In other words, a "frivolous" medical malpractice lawsuit rarely, if ever, gets filed, at least in my state where we already have protections against such suits at the state level.
That brings me to H.R. 5- the attempt by some House Republicans to federalize state medical malpractice laws. Do these politicians think we’re too stupid to recognize that they are the same people who generally argue in favor of states’ rights, less federal government activism, and free market solutions, and who specifically oppose Obamacare because it attempts to federalize health insurance? Thankfully, some true conservatives like Fred Thompson and some members of the Tea Party like Rep. Ted Poe (R. Tex) recognize this hypocracy. Former Senator Thompson wrote a compelling editorial opposing tort reform and H.R. 5, and Representative Poe spoke against H.R. 5 in the House, saying it violated the Constitution.
Representative Poe makes a great point. H.R. 5 doesn’t actually address imaginary "frivolous" lawsuits. On the contrary, it punishes patients who have been seriously harmed by a doctor’s negligence. The bill would have politicians in Washington rather than local juries determine damage awards in favor of a patient who has proven a doctor’s and/or hospital’s negligence, by arbitrarily capping the amount the patient can recover in a state jury trial. The 7th Amendment to the Constitution guarantees the right to trial by jury. The Republican party’s chronies would like to strip this right away from individuals (not corporations) by, inter alia, capping their damages, forcing them to arbitrate disputes, and obstructing their right to enter into private contracts with attorneys. One favorite provision the tort reformers push is to federalize private representation contracts between individuals and their lawyers for representation involving tort claims. They know that most people cannot afford to pay hourly for a lawyer to bring a tort claim against a corporation. The solution for most people is to agree to contingency fees, meaning the lawyer does not get paid a fee unless he or she wins the case, at which time the fee is a percentage of the gross recovery. A famous federal judge once call contingency fee lawyers true capitalists. The tort reformers know that if they can federalize fee contracts, citizens won’t be able to afford a lawyer to sue a corporation.
While chronyism has been around forever, I fear that it’s reached a crisis level in this country. The Democrats are such wusses that the Republicans smell blood. Unscrupulous bankers who passed off their toxic mortgaged-backed securities to pension funds and made loans to people who could not afford to repay them got off scott-free. Meanwhile, the teachers, firefighters, police, and private corporation employees whose pensions evaporated as a result of the Wall Street bankers’ gross misconduct are the very people currently under attack by some Republican politicians. The attacks on unions in Wisconsin and on federal employees by the House Speaker are rationalized by the attackers as necessary measures to reduce the debt. However, everyone knows the overwhelming majority of this country’s budget is spent on three things: Social Security, Medicare/Medicaid, and Defense. Instead of having the courage to address these areas, the politicians attack the teachers, cops, and fire fighters making $40,000 per year. Give me a break!
What does this have to do with the Democrats being wusses? I believe the Republicans see the unions and the trial lawyers as the balls of the otherwise ball-less Democrat pary. That and the fact that their major contributors are anti-7th Amendment and anti-union are why the Republican’s top priorities are federalizing state tort laws and further weakening unions. Ironically, this requires them to support the very kind of activist federal government intrusion into our private rights that they supposedly oppose. Hopefully, the Tea Party members will stay true to their principles and continue to oppose this big government chronyism.