The Latest Republican Non-Issue: Tort Reform

Sarah Palin, America’s favorite unemployed Facebook blogger, managed to hold on to her transient relevance for another week, with a post upbraiding President Obama for failing to treat tort reform as a necessary part of any healthcare reform plan. She even manages to relate the issue to her own personal struggles (awww!):

As Governor of Alaska, I learned a little bit about being a target for frivolous suits and complaints (Please, do I really need to footnote that?). I went my whole life without needing a lawyer on speed-dial, but all that changes when you become a target for opportunists and people with no scruples. Our nation’s health care providers have been the targets of similar opportunists for years, and they too have found themselves subjected to false, frivolous, and baseless claims.

At the outset, I should explain that I have no stake in the matter: although I’ll soon be a member of the bar (still waiting on results…), the only contact I’ve had with medical malpractice law is on the defensive side. Still, the devices for limiting medical malpractice claims are well-known to anyone conversant in the law. Palin explains a few of them, kinda:

Many states, including my own state of Alaska, have enacted caps on lawsuit awards against health care providers. Texas enacted caps and found that one county’s medical malpractice claims dropped 41 percent, and another study found a “55 percent decline” after reform measures were passed. [4] That’s one step in health care reform. Limiting lawyer contingency fees, as is done under the Federal Tort Claims Act, is another step. The State of Alaska pioneered the “loser pays” rule in the United States, which deters frivolous civil law suits by making the loser partially pay the winner’s legal bills. Preventing quack doctors from giving “expert” testimony in court against real doctors is another reform.

Except to the extent that they’re duplicative — as she says, “many states” have enacted serious tort reform — some of these are good ideas. “Fee shifting” models (“loser pays,” in Palin’s terms) are effective ways of discouraging bad claims with minimal negative impact on real justice. Limits on damage caps should be approached with some skepticism, though. While they obviously cut down on malpractice claims, they damage good claims more than bad claims. Someone who’s grievously injured — and remember, not all cases (or even many) are shams — may not be able to be “made whole” without extravagant awards. Sometimes and especially in class actions, justice requires awards in the $100M+ range, and that’s okay. Other forms limitations are preferable to damage caps: for example, some states require medical malpractice plaintiffs to submit to mediation or administrative review before trial, to weed out bad claims or settle simple cases, thus cutting down on the transaction costs involved.

Palin’s last idea, though, is a real shocker. The Federal Rules of Evidence (and state counterparts) already provide for extensive screening of testifying (and consulting) expert witnesses. See Fed. R. Evid. 702 and Daubert v. Merrell Dow Pharm. Corp., 509 U.S. 579 (1993). Before testifying on matters of expertise, expert witnesses, like physicians in medical malpractice cases, must be rigorously questioned to ensure the validity of their methodology, lest a “quack” irrevocably taint the jury with slipshod, biased testimony. It’s not clear how this model could be improved, much less how Palin expects it to be. This a prime example of why Palin’s truly unfit for policymaking: she doesn’t seem to know what she doesn’t know.

There are other problems with the Republicans’ renewed focus on tort reform as a solution to skyrocketing healthcare costs: even Palin admits that tort reform could, at most, shave 9% off of a patient’s bill, but that’s a paltry sum, not nearly enough to effect the real change that’s needed. There’s a certain ideological inconsistency there, too: if the free market is the response to healthcare reform, aren’t lawyers part of the process? Then again, the GOP’s libertarian bona fides always disappear like so much smoke as soon as some conservative social issue is implicated, so we should hardly be surprised. Similarly, the method of executing tort reform bumps up against both Republican core values, and practical concerns. Presumably, federal tort reform would preempt existing state restrictions on medical malpractice claims, but that would federalize a significant portion of state law, which is either impossible or difficult, and in any case would seem to run afoul of any notion of “states’ rights.” Socialism!!

And finally, as far as I can tell, the Republicans aren’t really interested in tort reform in the first place. Obama offered to include it in the healthcare bill back in May, a compromise that the party leadership flatly rejected. Either the GOP truly has no interest in actually governing, or they haven’t yet grasped the significance of their minority status, or they just don’t care.

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One comment

  1. I always thought tort reform was about eliminating certain causes of action (or statutorily codifying existing common-law “that isn’t a tort” status to prevent things from becoming actionable torts).

    Also, my understanding is that Rule 702 and Daubert aren’t generally applied the way they should be – the hearing (if it isn’t waived) becomes about “Are you really an expert in phrenology?” not “Is phrenology a legitimate field of expertise?”. At least, that’s my understanding of how they’ved worked in areas like, say, vaccine claims. Then again, vaccine claims tend to arise under Federal Circuit caselaw, which I’m pretty sure wouldn’t be hurt any by putting Sarah Palin on the CAFC – or a lobotomized orangutan.

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