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This piece originally appeared in the National Review Online on April 21, 2005.
Now that the president has signed class-action legal reform into law, Congress is turning its attention to health-care-litigation reform; namely, to addressing the asbestos-litigation morass and the medical-malpractice-insurance crisis. We all know the core problem: a self-serving litigation industry that costs us billions of dollars and is growing at double-digit rates.
Much has already been said about Senate Majority Leader Bill Frist (R., Tenn.), a heart surgeon, and his credibility when battling trial lawyers. But there’s another medical doctor, freshman Sen. Tom Coburn (R., Okla.), who will also play a significant role in the coming debate on asbestos-litigation reform.
Aggressive trial lawyers continue to cash in on asbestos lawsuits, bankrupting American businesses and siphoning off hundreds of millions of dollars that would be better used to compensate victims of asbestos-related illness. It’s a classic case of the legal system serving lawyers first and real victims last.
Congress needs to fix the problem. Unfortunately, Senate Judiciary Committee chairman Arlen Specter (R., Pa.) is pushing “trust fund” legislation that would make matters worse by creating a new $140 billion federal-government program to pay out asbestos claims. This staggering level of funding would come from a new business tax, levied on many companies that are only remotely related to asbestos. The ultimate effect will be lost jobs and a weaker economy, and taxpayers will surely be on the hook for any shortfall in the trust fund.
Even worse, Senator Specter is in deal-making mode with Judiciary Committee Democrats, and his trust fund guarantees a payoff of nearly $14 billion to asbestos attorneys. That’s truly an outrage: The trial lawyers have already taken enough and it is time to put the victims first.
Creating new government programs to solve an underlying problem with asbestos law? This debate needs a healthy dose of limited government principle. That’s where Senator Coburn may come in. Fortunately, he also serves the Judiciary Committee, and he is one of five GOP senators on the committee currently voicing objections to Specter’s approach.
During his three terms in the U.S. House (1995-2001), Coburn was a stubborn member known for his willingness to buck leadership and bring business to a halt on matters of principle. In 1999, USA Today wrote: “Coburn brought the House to a virtual standstill by threatening to attach 130 amendments to an agriculture appropriations bill that he thought cost too much. Since then, he's almost single-handedly forced nearly $1 billion in cuts from the first seven spending bills the House has passed for the next fiscal year.”
No doubt, Tom Coburn’s tenure in the Senate, which began this year, will be characterized by the same tenacity — already he’s battling a recent Senate-ethics ruling requiring him to give up his medical practice while serving in the Senate. (He was permitted to practice while in the House, and the Senate issue is over whether he should be able to continue to serve his existing patients.)
Like Senator Frist, Coburn’s personal story makes him a compelling voice on medical-litigation reform. From 1970-78, he ran a successful family health care manufacturing company before attending Oklahoma Medical School. In his subsequent medial practice, Dr. Coburn has personally delivered almost 4,000 babies. As a result of his experience as both a businessman and a doctor facing escalating malpractice insurance costs, he is an outspoken opponent of the trial bar and a leader on medical-malpractice reform. For example, Coburn recently weighed in on the national debate over painkillers, arguing for a pragmatic approach that allows riskier drugs to remain available for informed patients.
Also significant: Coburn is a two-time cancer survivor, including colon cancer last year. By virtue of his personal experience, he understands all sides of this debate.
So where are we going? In the 108th Congress, Senate Minority Leader Tom Daschle was the lead Democrat sponsor of the asbestos-trust-fund legislation, which should give one a good sense of the philosophical origins of the Specter trust-fund bill. Fortunately, there is a conservative alternative: passing “medical criteria” legislation that adopts medical-evaluation criteria proposed by the American Medical Association. It’s a smart approach that addresses the underlying legal problem in our courts and doesn’t require $140 billion in new taxes. As one conservative said on the Senate floor last year, “I do not believe a trust-fund approach is the right approach… [The trust fund] is almost an invitation for people to say here is a bunch of money, probably not enough money, so let's make sure we run our claims early, fast, and get in while the money is still there. So the claims would greatly exceed the money available no matter what size the pot of money is on the table. And when it runs out the net result will be that people will come to the federal government to keep it going…So I urge our colleagues to rethink this.”
That voice of reason was the now-retired Sen. Don Nickles, the great Oklahoma four-term senator, in whose seat Senator Coburn now serves. Hopefully, Coburn will pick up right where Nickles left off and oppose the trust-fund approach. By all accounts, he’s perfect for the job.
— Matt Kibbe is president and CEO of FreedomWorks.