If I were a progessive . . .

I think I’d be downright enthusiastic about Bill Bradley’s plan to marry health care reform with tort reform. It seems to me that legal damages are basically an ad hoc way of compensating for a lack of regulatory oversight, and that government-subsidized coverage for things like preexisting conditions and expensive medical procedures would obviate the need for costly judicial remedies. Assuming we guarantee universal coverage through some mechanism or another, is there any reason to maintain the current legal regime with respect to medical damages?

Putting  my conservative hat back on, I think I’d also be in favor of tort reform in a vacuum or, per Bradley, as part of some grand bipartisan bargain. I don’t really find the standard industry lines about excessive medical damages persuasive – as far as I’m concerned, an injured party’s right to a day in court ought to take precedence over companies’ need to limit financial liability. That said, I’m not sure if the justice system is equipped to determine equitable compensation for medical malpractice. One reason courts generally defer to the legislature is their limited ability for fact-finding; at least in theory, legislators are supposed to be better prepared to dig deep into a particular policy question. If Congress adopted certain guidelines for compensation and left the rest to specialized medical courts, I think that would be fairer than having the fate of aggrieved parties hinge on the competence of their attorney (not everyone can hire John Edwards) or the generosity of a particular judge or jury.

Howard Dean may be right to argue that adding trial lawyers to a long and growing list of health care opponents is not a politically savvy move. But it occurs to me that this Administration has expended precious little political capital taking on any industry groups, so perhaps it’s time to for a real special interests fight.

N.B. – Unlike my esteemed co-bloggers, I have not been following the health care debate very closely, so it’s quite possible I’ve misread this issue entirely. Any thoughts from our commenters? Our resident healthcare wonk? Our resident progressives? What about our resident (*gasp*) trial lawyer?

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11 thoughts on “If I were a progessive . . .

  1. The Big O said a few months ago he was open to some form of tort reform. Tort reform has been a great target for the right since they get to blame a popular scapegoat (lawyers) although i haven’t seen any evidence that lawsuits are a major cause of the expensive nature of our health care system. Of course R’s and Con’s tend to only hate lawyers when it isn’t their lawsuit, but that is generalization.

    In the end , however, this is a potent symbol of how D’s are doing things R’s should want and love, yet i don’t think this will garner one R vote or calm down the nutbag parade. I also don’t expect the MSM to lead with stories about how a D is doing something R’s want and therefore the D’s are playing all nice and bipartisan while the R’s are full of it.

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  2. What greginak said.

    I would be somewhat excited about this if Chuck Grassley or Olympia Snowe had written that op-ed and not a retired Democrat. But the truth is actual Republicans aren’t looking for compromise or a way to enact better policy, they are looking to deny Democrats, and Barack Obama in particular, any and all legislative victories no matter the cost.

    As for tort reform itself, I think you’re right Will. We should be wary of any attempt to diminish an aggrieved patient’s day in court in favor of large hospitals and rich doctors. We should be especially wary of attempts to put hard caps on compensation for malpractice. If you or I were crippled for life because of a botched surgery, I don’t think we’d be too happy if the government limited our compensation to say $100,000.

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  3. From a philosophical point of view, what is remotely conservative/libertarian about government interfering with long established rules and intuitions set up to deal with medical malpractice?

    After all, aren’t trial lawyers a market force, bow your heads and say Amen, just as much as the next business man?

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    • I’m pretty sure that the official libertarian line is something akin to “it’s fine when they want to practice law, it’s not fine when they want to game the legislative system.”

      And, of course, we all know that there’s no way to tell the difference between the two.

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  4. Sorry if this is a gramatical nitpick, but shouldn’t the title of the post have been “If I were a progressive . . . “, which is a good example of the rarely used subjunctive tense in English, the tense used to express doubt, uncertainty, or a certain whimsicalness. If speak or have studied Spanish or other romance languages, you’ll know what I’m talking about.

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  5. With tort reform, it’s all about the details. Is it going to be a smart, fair tort reform? Or is it going to be a sop to the insurance, medical and pharmaceutical industries? Real positive reform would both limit the amount of frivolous or rapacious lawsuits but protect the ability of people who have been genuinely wronged to sue. A likelier outcome, I’m sorry to say, would merely limit the liability of large corporations and make the already expensive, tedious and emotionally draining process of suing a well-moneyed entity, whether an individual or a business.

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  6. If you were a progressive, you’d already know that medical law suits are a pretty insignificant problem compared to the other costs involved in the health-care system.

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  7. I’m a pretty strong supporter of the public option (click on my name to see website proof) and I think it’d be great to see some tort reform included in a bill — not hard limits on renumeration, but limits on punitive damages, emotional suffering, etc. Every patient has the right to treatment and lost wages when someone injures them, but I have seen damages awarded by juries where the actual dollar numbers seemed more like a vote of emotional support rather than an attempt to find strict justice, and that money comes out of the malpractice insurance system as a whole more often than it punishes individuals.

    Unfortunately, all the numbers I see seem to indicate that the effect of Texas-style or even sweeping New Zealand-style tort reform would be a one-time decrease of between 2% and 7% (because malpractice award growth is basically flat, unlike other kinds of health costs). So it’s vanishingly unimportant next to the large, systemic effect a public option and other reforms could have — after all, we’re getting double-digit health care price increases every year in the status quo.

    TLDR: I’m with zic and Freddie, and intrigued but not quite following what Mark has to say about common law and statute.

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