Tort Reform Pits Brother Against Brother

By Andrew Cohen
Tea Party affiliated legislator Mike Lee is a strident critic of medical malpractice lawsuits - and Judge Thomas Lee isn't helping his cause, even if he is family. 

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How would you like to have been at the Lee family dinner this weekend? At one end of the table would be Mike Lee, the Tea Party-infused junior senator from Utah. And at the other end would be Thomas Lee, an associate justice of the Utah Supreme Court. Mike is a strident advocate of so-called tort "reform." Thomas last week authored a ruling which significantly broadens tort exposure for medical professionals who prescribe drugs. Pass the guacamole!

The Lee Brothers have extraordinary pedigrees. Both are sons of Rex Lee, one of Ronald Reagan's Solicitors General. When Rex Lee was in Washington, one of his assistants was Samuel Alito, Jr. When Alito became a Supreme Court Justice, one of his clerks was Mike Lee. Thomas Lee clerked for Justice Clarence Thomas. Rex Lee, the father, was president of Brigham Young University. The sons have strong ties to the school and to BYU's Law School.

Conservatives through and through, this family seems to be. But the two brothers seem to have diverged when it comes to tort law, and negligence cases, and the larger concept of how malpractice cases may often improve the quality of health care. Before I get into some brief analysis below, here (from the brilliant film "A River Runs Through It") is how badly meals can go when brothers are feuding.
 

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The Maclean Brothers Fight
A River Runs Through It -- MOVIECLIPS.com

I kid.

Things probably aren't that bad between the Lee brothers.

Thomas Lee

Last Tuesday, Thomas, the judge, wrote a unanimous ruling in a closely-watched case styled Jeffs v. West. The case centers around the conduct of David Ragsdale, who was taking at least six prescribed drugs in January 2008 when he shot and killed his wife Kristy. Ragsdale pleaded guilty to aggravated murder and then the conservator for the couple's children-- essentially orphaned-- sued the doctor, nurse and clinic which had treated Ragsdale.

The novel claim at the heart of the case is that the medical staff was negligent in prescribing medicine to Ragsdale-- and that the clinic owed a duty of care to his children or, as the law calls them, "third-parties." Here's how Justice Lee put it: "In this case we are asked to determine whether a physician owes nonpatients a duty to exercise reasonable care in the affirmative act of prescribing medications that pose a risk of injury to third parties."

The medical defendants in the case, Justice Lee wrote, had argued "that healthcare providers owe no duty to a nonpatient who has been injured by a patient unless the patient has a special relationship with the provider-- such as where the provider has custody or control of the patient, or where the provider is on notice that the patient is uniquely dangerous to specified third parties." The Utah Supreme Court was unwilling to recognize such a rule.

Instead, the five sitting justices permitted the case against Ragsdale's medical staff to continue, at least for now, toward trial (or, more likely, toward a settlement). Here's just one passage (Paragraph 36) of a ruling that is nothing less than a win for medical malpractice attorneys and their clients and nothing short of a loss for insurance companies, doctors and so-called "tort reformers":

Defendants' concerns about the impacts of a duty on malpractice insurance and healthcare costs falter on similar grounds. The supposed effects on insurance premiums and patient costs are speculative, as neither defendants nor their amici have presented any evidence showing that insurance costs are lower in states that do not impose this type of duty on healthcare providers. And in any event, the alternative suggested by defendants is to impose these costs on injured parties and permit negligent physicians to remain unaccountable. It seems more reasonable to require physicians and their insurers to account for the consequences of physicians' careless acts than to foist that cost solely on the injured.

That's the kind of language corporate America doesn't like to hear. It's certainly the language that many Republican lawmakers don't like to hear. And had it came from a progressive judge, or a Democratic appointee, it likely would have caused much more of a ripple in conservative circles both in Utah and in Washington. After all, here we have a group of unelected judges opening the door to a whole new genre of medical malpractice lawsuits.

Mike Lee

So what does Thomas' little brother (they are roughly seven years apart) think about the ruling? I don't know. If Sen. Lee has made any public utterances about Jeffs v. West I could not find them online. Mike has consistently said that he is in favor of tort reform, however, and it's hard to see how he'd be pleased that Utah is now a state where medical malpractice cases like this one will get to trial (or force more costly settlements that favor plaintiffs).

That's not to say that Mike would likely be upset that it was his brother, and not Congress, which recognized the new avenue of liability. Last year, for example, Sen. Lee was one of the few conservative voices on Capitol Hill who was against a GOP-sponsored medical malpractice provision in a Senate jobs bill. To Mike, this was "constitutionally problematic" because Congress has little business telling state courts about state laws.

In fact, judging from Sen. Lee's public pronouncements, there is a great deal about modern American life which is "constitutionally problematic" to him-- like Social Security and Medicare and child labor laws and FEMA and on and on. He's against a federal response to tort reform but in favor of state-initiated tort reform. And like many of his Tea Party colleagues he is very much against so-called "activist" judges who seek to expand corporate liability.

Take the case of Caitlin Halligan, for example. Last fall, Senate Republicans successfully blocked her nomination for a spot on the D.C. Circuit Court of Appeals. Here's how Human Events covered Sen. Lee's perceptions of the reasons behind the fillibuster:

Proponents of Second Amendment rights criticized Halligan's attempts in 2003 to hold firearms manufacturers and retailers responsible for crimes committed with guns. In 2006, Halligan also filed a brief arguing that handgun manufacturers were guilty of creating a public nuisance. "Such an activist approach is both bewildering and flatly inconsistent with the original understanding of the Second Amendment rights that Americans enjoy," said Sen. Mike Lee (R.-Utah). "It is most certainly not the time for us to consider confirming a controversial nominee with a record of extreme views of the law and Constitution," Lee said.

The Argument

Sen. Lee says that it's "bewildering" judicial activism to hold gun manufacturers liable in tort for gun crimes that harm third parties. But Justice Lee says it's perfectly fine to hold medical professionals liable in tort for prescribing medicine that ultimately harms third parties. Mike is against judicial expansion of liability in negligence cases. Thomas just helped expand liability in negligence cases. It isn't exactly Cain and Abel. But it isn't the Doublemint Twins, either.

At the dinner table Mike says to Thomas: "How could you hold medical caregivers potentially responsible to people who are not even their patients?" Thomas says to Mike: "How can you call me an activist when what I was doing was merely applying state law to a new set of facts?" Mike says: "Can't you see that your ruling could cause medical professionals down the road from prescribing medicine their patients need?" Thomas responds: "Can't you see that jurors should be given the chance to determine when caregivers are negligent?"

Maybe we are seeing here, with these brothers and with this specific issue, the fault line that currently divides the Republican Party, at least when it comes to legal and constitutional issues. Thomas, the older brother, has just issued a ruling in the mode of an old-fashioned Republican. Mike, the younger brother, is ready to have Congress veto Supreme Court decisions. It's a family's story. And right now it's the nation's story, too.

Image credit: Flickr user James Cridland

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http://www.theatlantic.com/national/archive/2012/03/tort-reform-pits-brother-against-brother/253938/