Health Reform Sans Tort Reform

Wool in Fez, Morocco - photo by JoAnn Sturman

Scott Sturman
fliesinyoureyes.com

Kelly Johnson was a brilliant aeronautical engineer who designed airplanes decades ahead of their time. None of these innovations was more impressive than the SR-71 reconnaissance plane which could fly to great altitude at speeds well in excess of Mach 3. The Air Force gave him and his design team aircraft performance specifications, and it was their responsibility to meet these goals. Every component of the airplane was conceived de novo and built to function synergistically.

Now suppose Congress instructed the Air Force to proceed with the project under the following guidelines: Use new materials, state of the art avionics, and revolutionary fuselage and control surface designs, but maintain a conventional turboprop propulsion system. The Soviet Air Defense Ministry would have been licking their chops at the prospect of firing a few SAMs at this farcical hybrid.

Now the Obama administration intends to totally revamp the health care system, and power it with a turboprop rather than a ram jet. Meaningful tort reform is not being considered seriously in the master plan. To reconfigure 20% of the national economy and disregard a critical component of the design is absurd. In deference to the powerful trial lawyer lobby, it is simply off the table. Tort law contributes substantially to the cost of health delivery through the practice of defensive medicine, burdensome levels of documentation, and malpractice insurance rates.

Modest tort reform in California which restricted pain and suffering damages to $250,000 avoided the catastrophes experienced in states without such protection. A few more common sense based reforms are in order:
1. Frivolous law suits are a nuisance and expensive. To discourage these suits the plaintiffs and their attorneys should pay the defendants' legal costs if the case is deemed to be without merit.
2. Nowadays medical testimony is too complex for most lay juries to consider, particularly for jurists who are selected for their penchant to award large settlements rather than their ability to sift through detailed, scientific testimony. A panel of experts is more suitable to deliver sound and consistent evidence based decisions. Using a similar tact, Kaiser Hospital patients adjudicate grievances through a compulsory mediation process.
3. During litigation the plaintiff has the right to sue everyone involved in the case irrespective of their personal culpability. This shot gun approach to legal remedy forces innocent parties to spend time and money for their defense until they are dismissed from the case. Rules are needed to protect innocent health care workers from this treatment.

At times the health care system is like a bus in a third world country. There are people on the roof, on the hood, and crammed inside. There are pigs, chickens, and luggage bursting from every window and door. Despite the load the bus creeps along avoiding the pot holes as diesel exhaust belches from the tail pipe. It is unclear whether the current tort system is a pot hole or a hippopotamus riding in the bus, but it effects the ride.