Wednesday, September 15, 2010

My Yearly Political Statement

I have always heard the term "tort reform" thrown around political debates for sometime now and never really took notice.  Was it an acronymn for something?  Was it "tart or tort?"  And what is it all about?  

Recently, I've taken a look and delved deeper than I normally would.  If you don't know or unsure the Wikipedia definition is:

"Tort reform refers to proposed changes in the civil justice system that would reduce tort litigation or damages. Tort is a system for compensating wrongs and harm done by one party to another's person, property or other protected interests (e.g. reputation, under libel and slander laws)."  

Now, I don't know a ton about the law system.  It's not my cup of tea.  I've never served on a jury and it is against my nature to argue like that.  The word play lawyers use it horrific in my mind.  Even one little tiny change in one word of a phrase can totally change your answer.  Drives me batty. 

I digress...but I'd like to focus on what is closest to me, the medical aspect of tort reform.

The way the medical malpractice tort system is set up right now is just inefficient and can drag on for days and days calling "expert witness" after "expert witness".

 Luckily, we live in Texas where a cap has been put on the size of the "prize" to the plaintiff, but unfortunately that still leaves the defendent with mountains of trouble, whether they caused the issue or not.  In most of the Western world there is a "loser pays" rule.  Not so in the great United States of America.  Even if the defendent wins, there are high court costs and lawyer fees.  Insurance premiums go up and as a result this cost is all passed on to the public.  Not to mention the fact that in the medical field, clinic practices are changed.  More unneccerary lab work, digital imaging and steps to restrict their practice in procedures prone to complications, such as trauma surgery, and avoiding patients who had complex medical problems or were perceived as litigious have been cited.

I'm not against litigation against doctors that show up stoned in the operating room.  I'm not against litigation involving surgeons that leave objects sewn up inside of the body.  But doctors are not God.  They can't make everyone well.  Procedures sometimes have complications beyond human control.  Babies are sometimes born with birth defects that is not the surgeon's fault.  Sometimes a tranplanted organ is rejected.  It's not always going to turn out the right way.  Human "fixing" is never as good as what God gave us and good doctors shouldn't be blamed when they did their best. 

I believe everyone should  have their day in court if it is needed and appropriate, but frivolous lawsuits are clogging up the system.  It should be a quick and efficient dispute resolution, not years in the making.  Court appointed expert witnesses should be utilized.  And, most importantly, the "English Rule" of the loser should pay litigation fees should be enacted.  In fact, socialized medicine and the "loser pays" goes hand in hand in all these other western countries.  Why aren't the liberals jumping on this band wagon and screaming about bringing it to the US just like they did the socialized health care reform?

We need to restore litigation to its traditional and appropriate role in our society. A lawsuit takes a very heavy emotional and financial toll on participants, and therefore should be the remedy of last resort to resolve disputes between parties. A lawsuit should not be used to win lottery-type riches for a lawyer and his client.


Just A Mom (Call me JAM for short) said...

Well said! We need to turn our system around some way. Or else, it's only going to get worse...

El Comodoro said...

Agreed. Why hasn't the left embraced tort reform? That's an easy one: It's completely, utterly beholden to plaintiff's lawyers. Tort reform is their kryptonite, and that issue was (and still is) the 800-pound gorilla in the room during discussions on nationalized healthcare.

Triple bonus points for bringing up the English Rule in a blog post. Bravissima.

Texas's cap is one reason doctors are flocking here in droves.