Rethinking medical malpractice: A no-fault path to health care reform
side note: Tort reforms are necessary, but to what extreme should reform tests go? And at what point do reforms impede citizens’ access to the courts and justice? These are going to be major sticking points when the official conversation begins.
In his speech on health care reform two weeks ago, President Barack Obama embraced a Bush administration plan to allow some states to experiment with tort reform as a way to reduce the costs of medical malpractice insurance. Though popular with many, to others tort reforms seem like gimmicks designed to save money by putting a thumb on one side of the scales of justice.
Proposals dealing with legal fees, for example, such as “loser pays” or the abolition of contingent fees, make it riskier for individuals and small businesses to sue the rich and powerful in all but the most surefire cases. That’s sort of like taking away David’s slingshot and forcing him to challenge Goliath to a wrestling match.
Caps on noneconomic damages, such as punitive or pain-and-suffering damages, have broader appeal and claim some success in Texas. Yet when Oregon voters were twice asked to amend the state constitution to allow such limits, they said no. One reason may be that caps on damages primarily seem to reward the worst offenders, like trying to reduce prison costs by setting a uniform maximum sentence of, say, 10 years for all crimes. This would have no effect on purse-snatchers or people who write bad checks, but would release killers, kidnappers and rapists early. Any guess how that would do at the polls?
Other proposals are more specific to medical malpractice, such as specialized health care courts and safe-harbor practices to protect doctors from liability even if something goes wrong. But maybe it’s time to consider a more radical reform, such as a system of no-fault insurance for medical malpractice similar to the workers’ compensation system.