The claim — that refuses to die no matter how many times it’s disproved — is that there can be no health care reform without tort reform. I’m going to flip that around and ask whether some people are reversing means and ends. Instead of thinking of tort reform as a means of lowering health care costs, maybe we should be thinking of health care reform as a means of reforming tort.

I know; I’ve been arguing against tort reform. But I don’t think the current system is perfect; I just think what the Right wants to do will make it worse and will do nothing to make health care more affordable and accessible. But, separate from the health care debate, some argue the current tort system could be made more fair to both plaintiffs and defendants. And America’s physicians insist they are being ripped off by high malpractice insurance premiums, so let’s see what we can do about that.

(Personal note: Often when I write about tort reform I get razzed because I also blog for a mesothelioma litigation site. But, full disclosure, I’m not contracted by the law firm but by the technology company that runs the site, and nobody tells me what to write or what opinions I’m supposed to express. I was hired because I already was writing about tort reform and health care reform on my politics site. In this post I hope it’s clear that preserving the big profits of malpractice litigators is not a personal priority. I just want the system to be as fair as possible to everyone.)

Removing Medical Costs From Damage Awards?

Whenever I write about health care and tort reform, somebody points out that if everyone could rely on a national health care system, people wouldn’t have to sue to get medical bills paid. So, if you're serious about reforming malpractice tort, establishing a national health care system is a first step.

 A majority of states have capped non-economic damages. This usually leaves economic damages (usually the amount of actual and estimated medical bills plus lost income) the biggest part of a malpractice settlement. And it occurs to me that if the Right really wanted to stick it to trial lawyers, eliminating medical costs from damage awards would do it.

FYI, in most states “economic damages” are those the plaintiff can document at time of trial. This includes actual medical bills and estimates and documentable lost income. Non-economic damages are awarded in recognition of the impact of the damage on the plaintiff’s life, such as permanent impairment, and is often needed for unanticipated living expenses.

Please please please read this informative interview with Tom Baker, a professor of law and health sciences at the University of Pennsylvania School of Law and author of The Medical Malpractice Myth.

The medical malpractice system only works for serious injuries. What it doesn’t work for is more moderate ones. Lawyers discourage people from bringing suits if their injuries are not serious in monetary terms — a poor person or an older person who can’t claim a lot in lost wages. That’s why obstetrician-gynecologists pay such high premiums. If you injure a baby, you’re talking about a lifetime-care injury. Gerontologists’ premiums are exceedingly low.

I want to come back to the system only working for serious injuries in a later post. But for now, note that if the baby needing lifetime care could count on care from a national health care system, and didn't claim a lifetme of estimated medical expenses at trial, then it seems to me obstetrician-gynecologists would get a big break. 

This would not eliminate malpractice suits, as people would still sue for non-economic damages and for lost income, but it would make a huge difference in some specialties, I would think.