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Will the left embrace tort reform? Should the right abandon it?

As a lawyer who does plaintiffs work, tort reform has never rung true with me, either as something as necessary as people claim it is, or as something that actually produces anywhere near the savings people think it will. Ultimately, I think there are some things that could be tweaked to improve the system including special courts for expert intensive cases (med. Mal., bad drug, etc.), and modest penalties for those suits that are truly frivolous.

I also know that the pendulum swings both ways. Tort reform has already occurred at the state level in many states to varying degrees. The public has been indoctrinated for a long time into the belief that plaintiffs and their lawyers are more likely to be guilty of greed, than the defendants are guilty of some tort or another.  The natural result is lower damages awarded and more defense verdicts. The legal result in some cases is tort reform eliminating representation for whole classes of plaintiffs. In either event, insurance companies become emboldened to deny more claims, or lowball more claims. Professionals like Doctors and Dentists become less careful in their practices. And when the plaintiff’s lawyer cannot afford the risk, people are wronged with no remedy. Ultimately this happens to enough people that public perception turns again against the insurers and the sloppy professionals, and a correction occurs.

However, the point of this post  is Obama’s referefnce in the SOTU speech that he was willing to work with republicans on tort reform. It will be interesting to see if the democrats supposed loyalty to the trial lawyers holds firm, or if Obama was serious in his offering of tort reform. My guess is that trial lawyers will ultimately lose out if Obamacare remains intact.

Think about it. What do we think will happen with Obamacare? Doctors will be paid less, so there will be less of them, and they will be even less able to afford malpractice insurance. Care will become more difficult to get, because more people will seek services for which there are less providers. Care will have to be rationed, and care that is not rationed will be of lower quality.

Think of the European horror stories of the guy in the waiting room bleeding out after 24 hours without a doctor ever seeing him. That would be a pretty obvious med-mal case in America. But if the government drives the quality of care down and doesn’t adjust people’s right to a remedy then the cost of malpractice insurance really will become cost-prohibitive (like insuring homes on coastlines that get battered by hurricanes every 3-5 years) because committing malpractice as we now understand it would be almost unavoidable.

So the government will be left with one of two choices. A. Use taxpayers’ dollars to remedy malpractice through government subsidized malpractice insurance, or B. Implement draconian “tort reform” that prevents individuals from recovering for malpractice caused injuries. Since we already know that every cost estimate of Obama care is grossly under-estimated, it will be very tempting to forget the trial lawyers (and of course the patients) and make recovery almost impossible. Which of course will cycle back into making doctors less accountable and more likely to commit malpractice.

So, the Pyrrhic victory for conservatives is tort reform that allows a Doctor to ampute the wrong limb with no fear of repercussion, and a lot of double amputees with no hope of recovery. I would certainly think about it when considering Obama’s newfound willingness to enact tort-reform.

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