If you’re in Democratic politics, or a liberal political junkie, you have probably, like me, had to learn to studiously avoid the subject around physicians or med school friends. While the general political landscape tends to be a wasteland when it comes to the healthcare debate, those (few) doctors who oppose Obama’s plans for reforming healthcare oppose it viciously, and intelligently.
A modest suggestion: doctors — as intelligent, educated people, accustomed to nuance and complexity — are natural Democratic constituents. When we risk losing them, we’re doing something wrong. Towards that end, it might be time to consider some form of tort reform, both to insulate doctors from a legal system that has, in many ways, left them behind, and to win them back to the fold. But we should shun the simple, populist appeal of damage caps.
By way of background, damages awarded to a victorious plaintiff in a medical malpractice suit are either “economic” (cost of botched procedure/cost of eventual remedy) or “noneconomic” (punitive damages). Because punitive damages can run extraordinarily high — especially in the high-profile cases that make it into the media, and thus, alone, influence the debate — capping noneconomic damages has become, to conservatives, the one-stop solution to runaway malpractice premiums. But, there’s good evidence that they don’t work, and while caps (might) protect doctors, they hold victims of true malpractice hostage to frivolous claimants. A true solution would penalize the latter while protecting the former.
The solution might be to implement stronger “pleading requirements.” A pleading requirement is an allegation that a plaintiff must make in his initial complaint, or risk having his claim dismissed at the threshold. Stricter pleading requirements have a way of weeding out frivolous claims, by shifting the burdens litigants face in favor of the defendant. Consider the case of securities fraud litigation. Securities cases are expensive: defending one, even successfully, can run a company into the hundreds of millions of dollars, and the costs are front-loaded. Simply by filing, a plaintiff gains, with a minimum of additional effort, a chance to compel the defendant corporation to release, to the plaintiff, any potentially relevant internal memoranda, thus permitting plaintiffs to file first and investigate later, on the defendant’s dime. Further, the mere act of filing a securities fraud case negatively impacts a company’s stock, immediately doubling the defendant’s losses, regardless of whether they were actually at fault.
Congress attempted to solve the problem in 1995, by passing the Private Securities Litigation Reform Act (PSLRA), which increased the pleading requirements for securities fraud cases, forcing plaintiffs to allege with particular clarity all of the elements of the offense of securities fraud, or immediately lose. “File and forget” became harder to do, and the market took note. The PSLRA also “stayed” discovery until the case survived a preliminary motion to dismiss, thus preventing abuse of the litigation process. The result, at least in theory, is that frivolous suits face an uphill battle, and almost all meritorious claims will wend their way through the process with ease. As a way of stopping abusive litigation, the theory behind the PSLRA, at least, is quite elegant.
Frivolous medical malpractice cases present similar dangers to doctors: malpractice insurance increases immediately upon the filing of a complaint, and even if the doctor was a model of competence, proving it is a costly affair. Accordingly, strict (but fair) pleading requirements could help here, too. Because medicine is an expert profession, patients can’t be expected to make out a complete case immediately upon filing. But a requirement that plaintiffs identify with particularity where and how the treating physician deviated from a reasonable standard of care may not be a significant burden. And a similar provision staying discovery could weaken the immediate financial implications of becoming a medical malpractice defendant, thus ensuring that costs are allocated by the jury, and not the litigation process.
Changing pleading standards may not create the proper balance in risk allocation between doctor and patient. Indeed, the jury is still out on the PSLRA’s effectiveness. But in tort reform, the Republicans have hit upon a real problem, even if they continue to miss out on the solution. By at least trying to succeed where they’ve failed, we have nothing to lose, and a constituency to regain.