Do We Really Need A 300 Million-Person Solution To A 15 Million-Person Problem? Health Care Reform, A Saner Approach
Do We Really Need A 300 Million-Person Solution To A 15
Million-Person Problem? Health Care Reform, A Saner Approach
By
Ken Eliasberg
Having spent considerable time critiquing the current approach - the Obamaapproach - to Health Care Reform, what alternative would I recommend? As I observed at the outset, before I completely overhaul a system that may not require such extensive revision, I think it important to first clear away some of the obvious detritus so that I can get a more accurate picture of what the allegedly problematic terrain looks like (assuming that we do have a problem). What are the obvious first steps: (1) Dramatically clear up the medical malpractice situation, i.e. tort reform; (2) eliminate waste and fraud; (3) clean up insurance company involvement by making the aquisition of health insurance competitive by allowing buyers to purchase across state lines and standardizing the forms that the insurance companies use; and (4) possibly re-examine the tax treatment accorded employer-provided health insurance. Once we have cleared away this underbrush, we shall have a much clearer and more precise picture of the real problem’s terrain — again, assuming the existence of a real problem and that it would continue to exist after we have engaged in such a clean up.
Tort Reform.- An obvious, at least to any objective observer, place to start is the medical malpractice situation. Why have we not only not started there, but we have never really even gone there in our current deliberation of health care. True, for a brief moment, in the course of the now prolonged dialogue over health care, the president, under some pressure, gave lip service to the possibility of a modest inroad into this area. However, that moment passed quickly.Why haven’t we given more attention to that troublesome topic? Simple — because to do so would step on the toes of one of the Democratic Party’s most reliable supporters, not to mention one of their biggest fundraisers.
How troublesome is this topic? Extremely! While I intend to give substantial attention to this topic, let me summarily cover it here. The medical malpractice
Field, while a bonanza to trial lawyers, had done significant damage to our economic community, wreaked havoc upon our medical community, added substantial costs to the price of health care, and, if possible, done damage to what little remains of the reputation enjoyed by the legal profession (of which I am, and have been for many years, a member).
Permit me to elaborate. When last I reported on this topic (for the newspaper I wrote for in Santa Clarita), the cost of medical malpractice (in just dollars and cents) was over (well over, I believe) 100 billion dollars. This was the result of an abundance of litigation (as well as the fear of litigation), much of which was an abuse of the process. Please do not misunderstand, I am not suggesting that an act of medical negligence should go unpunished. What I am suggesting — no, flat out stating — is that such punishment should fit the crime (as opposed to being an economic windfall; winning the legal lottery, if you will). Specifically, any wrong should be completely redressed, and, by completely, I mean that the aggrieved party should be made whole — his damages be paid in full. And, if the wrong was particularly disturbing, the aggrieved party might be entitle to “punitive damages,” with such damages not to exceed $250.000.00 (an amount that several States have determined to be reasonable, and which, for purposes of our discussion, I can accept). Again, this is a lawsuit, not a lottery. However, for many trial lawyers it has proved to be just that — a legal lottery.
It has also caused doctors to practice defensive medicine, which has greatly added to the costs of health care. That is, doctors, fearful of lawsuits are as concerned with covering their backsides as they are in providing quality treatment. Or, put more charitably, doctors cannot proceed with treatment without being mindful of the horrendous costs attendant their making a mistake. And, while we certainly want our doctors to be so concerned, we don’t want them to be so concerned as to inhibit their taking appropriate risks in dispensing treatment.
In addition, doctors are avoiding certain fields of practice. For example, there are States where it is difficult to find an Ob-Gyn, a field of endeavor that has proved particularly lucrative for our friends at the Bar. Recall, that former presidential candidate John Edwards, made his bones (so to speak) and his money channeling the spirit of an unborn fetus for a very receptive jury. While, unlike the jury which found this line of argument compelling, I found it not only somewhat grotesque, but somewhat hypocritical in that the left does not concede the viability of a fetus. But, then again, that’s the left for you. The specter of litigation not only inhibits current medical practitioners, but serves as a deterrent to many others from even entering the field of medicine, or, in the alternative, if not deterred, then to pick a practice area possessed of reduced risk.
The solution? Simple — cap awards (at the very least). What I would prefer — and which is widely practiced in Europe (the source of much wisdom, according to our friends on the left) is a system of “loser pays.” That is, if you lose your lawsuit, you pay the costs of it. That would certainly make lawyers think twice before launching what I describe as coercive litigation. We’re talking about justice here, not a system whose main purpose appears to be to provide for the comfortable retirement of trial lawyers (to be continued).