Noem Votes for Medical Malpractice Caps, Attacks Jackley for Something Schoenbeck Says

Last updated on 2018-02-25

Our Congresswoman is being mean to our Attorney General and inviting their Republican primary contest to get bloody. What fun!

At the core of this knife-drawing is a policy debate. On Wednesday, the U.S. House narrowly approved H.R. 1215, which, among other things, would cap non-economic damages in medical malpractice suits at $250,000. Our Rep. Kristi Noem voted for the bill along with sponsor Rep. Steve King from Iowa, who claims that his bill will save taxpayers $50 billion over ten years and lower medical malpractice insurance premiums by an average of 25% to 30%. Rep. King cites the Congressional Budget Office analysis of his bill to support these specific claims; however, their current analysis only mentions the $50 billion figure; for the premiums claim, we have to refer back to the CBO’s 2004 analysis of a similar 2003 bill. Rep. King’s reliance on the CBO is nonetheless amusing: when the CBO reported all the negative impacts of the House GOP health care bill that King voted for, King said, “Any of us that have any experience, we don’t trust the CBO score.”

South Dakota already limits “general damages” (the harm we can’t count) in medical malpractice suits to $500,000 (see SDCL 21-3-11). King’s bill does not pre-empt state limits, but it’s worth noting that our half-million cap was imposed in 1976 and is thus now four decades behind inflation, which would have adjusted that amount to $2 million today. One conservative opponent of non-economic damage caps says it costs $200,000 just to prepare a medical malpractice suit for trial, so King’s bill may be just one more Republican effort to make fair treatment in the health care system a privilege of the rich. King says economic damages are enough and that the punitive damages his bill caps are “speculative, subjective, and wildly inconsistent,” but given that medical error is the third leading cause of death in the U.S., we may want to be cautious about further limiting the consequences hospitals face for screw-ups.

But hey! Why get bogged down in practical policy details that affect every American when we can watch Kristi Noem throw mud at Marty Jackley and his lawyer friends? In a fundraising e-mail, Noem wraps herself in Trump (who supports King’s malpractice award limits) and raps Jackley and his litigious ilk:

That’s why I was proud to stand with President Trump and conservative Republicans in the House to support tort reform this week.

Now, I’m under attack for that conservative vote from my primary opponent and his trial lawyer buddies.  They oppose these common sense reforms that would lower costs for everyone.

Will you stand with President Trump and me on this issue?

Please contribute today to join my campaign for Governor of South Dakota [Kristi Noem, fundraising e-mail, 2017.06.29].

Trial lawyer buddies—also known as a lot of rich and influential South Dakota Republicans who might not cotton to being called opponents of common sense.

Noem fingers one of Jackley’s “trial lawyer buddies” in an attack ascribed to her by Pat Powers:

Former South Dakota lawmaker Lee Schoenbeck, an outspoken supporter of Attorney General Marty Jackley, cited the vote of liberal Congressman Steve Cohen (D-TN) as an example of those standing against the bill.

“Trial lawyer Marty Jackley and his band of trial lawyer supporters may want to rethink their opposition to saving taxpayers $50 billion and lowering health care costs.  I look forward to hearing them explain that to Republican primary voters,” said Justin Brasell, Noem campaign spokesman [Noem for Governor press release, as published on Dakota War College, 2017.06.29].

Team Noem refers to this Thursday Facebook post from Schoenbeck:

Now I haven’t been able to Google up any comment from Jackley on King’s malpractice caps. If Jackley personally has attacked Noem for her “conservative vote” (wait—voting for more government regulation is “conservative”? Did Noem miss Rep. Duncan’s critique?), he hasn’t done it in public. Taking one critical comment from Lee Schoenbeck, who predictably stands up for his business interests (and, if we are generous, the interests of all citizens in holding doctors accountable for malpractice) and stretching it into an attack by Jackley seems unwise. Painting Jackley as ringleader of a band of trial lawyers (and you can almost hear Kristi whispering the word sleazy before that carefully repeated phrase) doesn’t push Jackley into a corner, especially since he doesn’t have to take a position on a federal law that doesn’t affect what happens in South Dakota. Noem’s early attack only provokes friends of Jackley to get more vocal… and friends like Schoenbeck don’t hesitate to get vocal.

Whether Noem committed an error in her vote for King’s medical malpractice caps is open for debate. Whether Noem should be attacking Jackley based on things one lawyer friend says on Facebook is more clearly a bad tactical move for her gubernatorial campaign.

Related: Schoenbeck appears to be muting any umbrage: in a comment under the Noem post on DWC, Schoenbeck says, “How about we all just go to Kranzburg for the 4th of July and celebrate America. I don’t know this Brazil guy, or where he came from, but I’d even buy him a beer.”