The Fallacy of Tort Reform
by joetalarico, Wed Dec 20, 2006 at 06:25:44 AM EST
Not a whole lot new has happened, which gives me the opportunity to do what I like best. Having been accurately depicted by George Will as a narcissist who believes that people actually care about my ramblings, I will ramble on, today about tort reform. Being an anesthesiologist for almost 20 years, I have been involved in medical malpractice and personal injury cases, both from the defense and plaintiff's sides.
Regarding medical malpractice, as a physician, the overwhelming majority of my colleagues have bought the line of the AMA that tort reform equals caps on non-economic damages. I am not one of those. History has shown, in California and more recently in Florida that this is not the answer. In California, caps instituted in the late 1970's had little effect. The malpractice crisis continued until the late 1980's, when insurance reform was instituted, and insurers refunded $70 million in overcharges. To this day California malpractice premiums are below average, but not because of caps.
Real malpractice tort reform must be multifaceted; there is no magic bullet. It all starts with quality improvement. From personal experience, I can confidently state that quality improvement in hospitals is light years behind that of industry. When was the last time you drove by a hospital and saw a poster that stated the hospital was a six sigma company or ISO 9001 compliant? If you see one let me know, because you'll have seen one more than I have. Next there must be real insurance reform. Malpractice companies, like other insurance companies, essentially have a license to steal. They have a pure profit motive; collect as high premiums as possible while paying out the least possible benefits. They tend to carry excessive reserves, because these reserves are easy ways to hide actual profits. Large executive compensation packages also are not registered as profits. Unfortunately these companies are shielded from free market self-regulation because they are oligopolies; there are considerable barriers to entry, so each state has few companies from which to choose. For an analogy, just look at the "big three" automakers in the 1970's. They sold shit for a high price because there were no other viable options. Now that there are many choices, our cars actually start when you turn the key, and we get a much better, safer product for a better price (incidentally, we can thank the government for safety because the companies would not have done that voluntarily).
Regarding personal injury, having practiced pain management in the past, I have seen a number of people with work injuries that have incapacitated them that are treated as malingerers. Essentially, the employer and the workmen's comp carriers don't want to pay for legitimate work injuries. Proponents of tort reform in this area assume that the majority of these injured people are just looking for a way not to work for life.
Essentially, those who support tort reform, at least the typIn e of tort reform proposed by Bush and Co., place the concerns of business above the individual. They continually point out frivolous suits and "trial lawyers" as the sources of the problem. Granted, in any system there are abuses, but we must defend the right of the injured to obtain some compensation, and we must beware of the real effects of this reform.
In closing, I will deal with tort reform proponents' arguments and debunk each one:
1. Frivolous law suits - while frivolous suits do exist, they are in the minority, and some that are the most renowned have been blown out of proportion (i.e. the MacDonald's hot coffee suit; check the facts, and most reasonable people would agree that the suit was justified)
2. Non-economic caps - Death is not an economic damage; neither is a lifetime of pain. I wouldn't trade my current state of health for $250,000, or $5 million for that matter. In the vast majority of cases, large non-economic damages are awarded only for egregious behavior.
3. Limitation of contingency fees - this change will result in justice only for the rich. Yes, personal injury lawyers make a lot of money, but this is a necessity. There is considerable risk to accept any case on a contingency basis, when a jury can decide that the payment for 3 years of work may be nothing. John Edwards is a great example; he made a lot of money, but helped many deserving people on the way. Contrast that with the corporate CEO's who conservatives feel are worth $100 million, because that is what the market will bear. Who do they help, besides themselves and their major share holders.
4. Insurance reform - this will result in more cost savings than all of the above combined (except possibly contingency fees, which will result in total loss of protection for the masses). Don't hold your breath waiting for the republicans to propose this, considering the money most of them receive from the insurance lobby.
To win this issue, we must find a way to frame this issue in a way with which the general public can identify. You just read a 1000 word tirade; the average person will not take the effort. That's why we must change the language of "tort reform," which is an effective term to advocate for the right that has been established in our language. The word reform insinuates that tort law is currently somehow unjust. We need to find and use a term, something like public defense law, that becomes ingrained in our language, thereby establishing the court as an institution whose purpose is public welfare (reality). I am open to better terms than the one I have suggested, but whatever the term, we must make a concerted effort to use language that advances our cause, as the right has been so effective in doing for the past 20 years (pro-life, tort reform, death tax, fox news, etc.).
For more background on the framing issue, and information far superior to mine, refer to some of George Lakoff's works; Don't Think of an Elephant, Whose Freedom, etc., or his website http://www.rockridgeinstitute.org