Tort Reform
Friday, October 23 2009
I write a lot of posts critical of “tort reform”, because it’s often a bad idea. In fact, it’s often the same bad idea, over and over again: damages caps, which don’t help doctors and punish patients. That said, I will be the first to admit that our approach to malpractice needs serious reform. If you agree, you’ll want to read through “Experiments in Tort Reform” from the NY Times.
What stands out in this article is that no one method is a silver bullet for the problem. A few of the approaches are attractive in principle, but likely difficult in practice. Still, if you want to evince any sophistication at all in the debate over health reform and medical malpractice, you simply must know that damages caps are not the only and certainly not the best answer.
One important thing to remember, and this is specific to the last sentence in the article: when a patient who has been injured by their provider are unable to recoup the costs of those injuries, we’re not ‘saving’ any money. Insurers are saving money, doctors might be saving money, but society as a whole still pays the same costs. They just get shifted, mostly onto the patient – and if the patient can’t bear those costs, the rest of us will have to. If we want our court system to be any kind of approximation to justice, we have to bear that in mind.
While it is universally agreed that those who are harmed should be compensated proportionately to cover expenses and future medical costs related to the original injury, it is not agreed upon how “pain and suffering” can be defined in an objective way. That is, while it is easy to estimate how much a patient should receive for current and future bills, it is impossible to determine how much someone should be paid for emotional pain.
Caps on pain and suffering help to objectify what is subjective. Without caps, lawyers will seek the highest amount for pain and suffering, an amount which tends to be disproportionate to the subjective injury.
Is the pain and suffering associated with a paper cut worth $25,000,000? There is probably a jury out in the country and definitely a lawyer who can make such a case. Whom does that hurt? Society. Whom does that help? Lawyers.