Saturday, February 13, 2010

A Good Idea From the Right

      It appears that the Pelosi/Reid healthcare reform legislation has gone down in flames. I have not included Obama among the drivers because it doesn’t appear that he had much to say about it, apparently by his own choice. It still seems ridiculous that one can have a 59 to 41 majority in any organization, and still not be able to get anything passed.
      Unfortunately, this is not football; one cannot just drop back and punt. But what can one do? The Republicans have some suggestions, some of which are good ones; others may need further study.
      Tort reform is at the top of the Republicans' list. Insofar as it concerns healthcare, I think it is an idea that needs to be considered. But what is it?
      Without realizing it, most of us are ambivalent in our understanding of tort reform. On the one hand we believe tort reform is the effort to “reform” lawsuits so as to prevent “runaway verdicts” that range into the millions of dollars. Usually large corporations are an exception, particularly those in “harmful” industries such as cigarettes or asbestos, or “greedy” corporations such as Enron, Worldcom et al.
      At the same time, most of us have a concern for the underdog; if a plaintiff shows up wearing bandages and is unable to walk, we want to punish the scalawag who is responsible for his being in that condition.
      There is some question as to how much of an increase in overall medical costs is caused by malpractice claims. Most studies have found it to be less than 2% of the total, however they have not taken into consideration the cost of preventive medicine which physicians are almost compelled to perform in order to avoid litigation. With that thrown into the mix, I believe that capping the jury awards for pain and suffering would be a good idea. An injury does not hurt any less if the injured party has received five million dollars than it does if he has received one million dollars.
      In any event, there is one component of tort law that I think definitely needs to be changed: the awarding of punitive damages to the plaintiff. While I agree that some defendants deserve to be punished, I think it should be in the nature of a fine by the state.
      There is a specific problem with tort reform as it applies to healthcare: Republicans generally think of such legislation as applying to all torts, not just medical malpractice. Do they really think that Enron and Worldcom should have got off with a slap on the wrist?
      Even if the parties can get together on medical tort reform, I doubt that it would pass constitutional muster, at least at the present time. As currently comprised, the Supreme Court considers that corporations are the same as natural persons. Would the court allow Congress to pass a law that says human persons enjoy a privilege that unhuman persons do not have? I doubt it, but that doesn’t mean it shouldn’t be considered.

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