Sunday, August 23, 2009

MDs Are People Too

Reading this morning's post on tort reform at Pandagon makes me want to pull out my hair. Specifically:

When you enact a system of “tort reform” that puts the people making medical mistakes in the position of not even needing to insure themselves because it would cost too much to hold them responsible, you’re increasing the cost of health care for patients.

Let me be blunt: I'd like everyone to have equal access to the legal system, but funding such access via arbitrarily large medical malpractice judgments is contrary to basic notions of justice.

Since the crowd at Pandagon seems to value personal narrative let me couch the argument in those terms. My wife is an MD in a community ER. She is not an insurance company, she is not an HMO, she is not some hot-shot plastic surgeon tooling around in her Mercedes. She frequently provides medical care to the underserved in the community who do not, for one reason or another, have a primary care physician.

Why should she be subject to arbitrarily large "pain and suffering" verdicts? Such a system simply doesn't conform to any notion of fairness. Levying a fine which, by design, bears no relation to actual damages incurred runs afoul of the principle of proportionality. That it's for a good cause makes no difference; there is no moral calculus that allows you to violate one person's rights in the service of another.

From a more practical standpoint I'd also like to point out that uncapped, non-economic damages increase costs by encouraging the practice of defensive medicine. My wife and her fellow ED physicians routinely order more medical care than is strictly necessary, a practice which is a byproduct of the current system of uncapped damages. It doesn't matter that "jackpot verdicts" are relatively rare; the fact that they happen at all is enough to encourage the behavior. There's no incentive for physicians to be cost conscious and hell to pay if they let a condition slip through undetected; as (usually) rational actors they're going to order as many tests and procedures as necessary to sufficiently cover their asses.

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