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Friday, August 21, 2009

Sarah Palin States the Obvious

Former Governor Palin continues her bit by bit attack on Obama's health care plan with her latest piece on his plan on Facebook. This one focuses on the need for tort reform and the lack of it in Obama's plan.

So what can we do? First, we cannot have health care reform without tort reform. The two are intertwined. For example, one supposed justification for socialized medicine is the high cost of health care. As Dr. Scott Gottlieb recently noted, “If Mr. Obama is serious about lowering costs, he'll need to reform the economic structures in medicine—especially programs like Medicare.” [1] Two examples of these “economic structures” are high malpractice insurance premiums foisted on physicians (and ultimately passed on to consumers as “high health care costs”) and the billions wasted on defensive medicine.

What Palin is saying here is so obvious it's almost silly to say. It would be silly of course if Obama's plan included tort reform. It doesn't and that's one of a plethora of problems of Obama's health care reform effort.

The problems with our litigious society and it's effects on health care are obvious. Doctors spend tens of thousands yearly for malpractice insurance. They order batteries of tests on each and every patient simply to avoid potential lawsuits. All of this costs money. It causes doctors to practice medicine cautiously and it clogs the system with lawsuits.

The answers aren't as simple. Everyone says we need "tort reform". Well tort reform is a concept. It's not as though there is a "tort reform" bill ready and able. There are specific reforms that need to be implemented that would discourage frivilous lawsuits, discourage irrelevant tests, and stop doctors from practicing defensive medicine.

Many pundits that want to feel smart say that we need "tort reform". That's fine but very few of them have specific tort reforms. There are two obvious ones. The first is to make loser pay in any lawsuit. That should cut down on junk lawsuits. The second is to set caps on lawsuits. That one sounds good in theory but by doing so, you place limits on lives. Caps on lawsuits also means caps on damages in cases of signficant malicious medical malpractice. Would you want to limit the damage if a doctor operated on a patient drunk for instance?

Beyond those two, I hear very few tort reform ideas. Palin offers very few ideas besides her own state's cap on lawsuits. I would ask the former Governor if she thinks that we should set a cap on damages if a doctor operated drunk. I believe tort reform is vital but there needs to be serious analysis and a sophisticated program of specific tort reforms. The governor identified the problem here but did little to identify specific solutions.

As for Palin, it's now clear she is going to continue to contribute to the health care debate. She appears to want to use Facebook. Contributing substantively to the national debate of the day is the best way for Palin to make her presence felt on the national stage and that's exactly what she's doing.

1 comment:

Anonymous said...

May 17, 1999

Going from bad to worse

Federal intrusion in civil actions detrimental to all

When dealing with the federal government, one thing is certain: if a bad situation can be made worse, Congress will typically find a way to do so.

As a physician, I have long abhorred the outrageous abuse of our legal system by unscrupulous attorneys filing frivolous lawsuits. We all know well the infamous spilt coffee case, and there are dozens more.

For as bad as those are, however, the federal government is now going to step in and make things worse. Much worse.

Currently, liability and contract law is handled exclusively by the states. If someone is harmed (physically or economically) as a result of the action or inaction of another, they may seek recourse in state courts. It has rightly fallen to the states to determine how best to procedurally balance the rightful reparation for plaintiffs with the need to allow for reasonableness in the judgments against defendants.

Now, though, Congress is stepping in to federalize contract and liability law. The process began in earnest just recently as the House took up legislation to limit the liability of corporations and government resulting from potential "y2k" computer glitch problems. While the government has worked hard to downplay the potential problems with "y2k," the House has dashed madly forward with this legislation to shield businesses against lawsuits resulting from their failing to adequately resolve their own "y2k" problems.

While one might initially think this sounds like a good idea, it does not take long to understand why it is not. First, this is federal meddling in an area of law not given it under our Constitution or legal tradition.

Second, as experience has shown, federal "solutions" tend to dumb down a process, rather than encourage excellence. One need look only at that state of our schools to see the most practical example of that premise. In the arena of law, one can examine the results of the 1973 Roe v Wade decision, which took abortion law out of the purview of the states and gave it to the federal courts.

Finally, and perhaps most persuasively, is the argument from personal interest. Say your local power company has known (like the rest of us) for some three or more years of the potential problems arising from the date-reading conflict in computers, yet did nothing or very little to correct the problem. Come the stroke of midnight leading into January 1, if power goes out at home it becomes an inconvenience, as for a hospital or business. But if the company was truly incompetent, and the outage lasts into days, or weeks, as they try to manage the situation, the outage becomes costly, disastrous and potentially dangerous. Hospital generators last only so long, small businesses can stand to be closed for only a short period, and children desperately need a warm house.

At that point, you and your fellow consumers of the government-granted monopoly power company will want to be compensated for your losses. But, alas, the federal government will have protected you from yourself. You might get something, but not nearly what you deserve for the company's inaction.

But do not think this is a limited instance. Rather, some are clamoring for the federal government to intervene in all civil suits such as those against gun manufacturers. Soon, as with the issues of abortion and education, the minor intrusion of the federal government in contract and tort law will soon amount to a complete take-over of matters constitutionally left to the states.

While I strongly condemn frivolous lawsuits, it is hard to support frivolous disregard for our Constitution and system of law. I trust the voters of the several states, and their legislators and governors, to best address these situations.

Leave it to Congress to make something bad, even worse.