Tort Reform

One of the least evil ideas Republicans have is probably tort reform. As this Economist article points out, medmal lawsuits are hardly the bogeyman they’re made out to be in any quantifiable terms, so really they just do this to say “fuck you,” not to solve any real problem. Still, it could be worse. If we have a single payer system one day for health care, med mal will have to work differently.

The trouble is how crude “tort reform” works as currently envisioned. Just like in education, where we will always leave many children behind as long as the underlying questions of poverty are not addressed, until the underlying dynamics of what drives our country’s tort system are addressed, it will just screw people.

Tort reform—at least with respect to med mal—could work. I know this because other countries do not have our tort system and they get better medical outcomes. The trouble is, those countries use before the fact regulation to keep things in check. We rely on after the fact adjustment of problems—what I think of as “minefield justice.” You can get away with an awful lot, but if you get caught up in a lawsuit, you step on a mine and you blow up, even if what you did isn’t this bad.

This is exactly how this played out in labor law, where the decline of unions as a forum and vehicle for addressing employee grievances has been replaced with the courts to a large degree. The result is messy, expensive, and almost random as to whom it affects.

Other countries do a much better job at reducing this kind of “transaction cost” by trying to get things to run more smoothly in the first place, not leaving people without any hope outside of the courts, and, in some cases, by publicly funding plaintiffs’ cases when they arise and are deemed worthy (by something like a “death panel”).

I seriously doubt this country would ever tolerate the regulatory interference necessary to make this work well, the social safety nets necessary to keep people out of courts for money when they have no other redress, and .. finally…

I think if law school were free or cheap, lawyers wouldn’t have to spend most of their lives chasing fees. (Which is a reason why tort reform is not really all that loved by the corporate firms—defending cases is how they get paid too.)

Of course, all of this involves a desire to solve problems, when really the Republicans just want to leave people high and dry, so they won’t do anything to compliment the caps they put in place, like, say, by providing some kind of insurance for people hurt in medical incidents, even when no one is at fault—and not just for medical care. A kind of public option AFLAC maybe.

Anyway, we don’t care about transaction costs in this country. The only people who make money are making them by taxing transactions in the real economy anyway—the government, the investment banks, lawyers, tax professionals, etc.

Also it might help if medical schools were free. We don’t have enough doctors and it might be nice if there were some that could afford to work in free clinics.

All of this would reduce the cost of health care. Something else the GOP really doesn’t give a shit about in deed even if they do in word.