I have not previously used this blog to make a political point, and I’m not going to make a habit of it. But in the case of this legislative race, between Jennifer Williamson and Sharon Meieran, I endorse Jennifer Williamson. In explaining why, I want to talk about the rotten policy behind most tort reform.
This is the primary, but the Democratic candidate is highly likely to win in November, so this is the important election. As is often the case with politicians, neither one puts much effort into making clear policy statements instead of vague value statements. But, with that said, Ms. Williamson has a much better stance on a specific issue I want to talk about. Dr. Meieran, a medical doctor and former lawyer, is in favor of some sort of medical malpractice reform, and malpractice reform is a horrible idea.
I’m not saying that there are no reforms that would be helpful. Of course there are. But malpractice reform, as a subset of the broader class of tort reform, is a shorthand for either preventing people from brining suit when they are injured by another’s bad conduct, or limiting the amount of money that can be recovered. Those are two lousy ideas.
Surveys show that the voting public is concerned about frivolous lawsuits, and I can’t dispute that frivolous lawsuits are a bad thing. But they’re also very rare, and they’re rare because of the way the legal system is structured and the way that lawyers who handle such lawsuits are usually paid. When someone hires me to file a lawsuit for them, they don’t pay me directly for my services. Instead, like most lawyers I get a percentage of the money award if we win. If we lose, I get nothing in exchange for all the time that I put into bringing the suit. Because all I have to sell is my time, I’d go broke if I brought too many losing lawsuits and gave away my time for nothing. Accordingly, the lawyers aren’t willing to bring a suit if they don’t think there’s a reasonable chance to win. And, if there’s a reasonable chance to win, then the lawsuit is by definition not frivolous.
Frivolous lawsuits are especially rare in the case of medical malpractice. Medical malpractice is a very difficult area of law. So unless the case is promising, lawyers won’t invest the time required, or the money required to hire experts and investigate the case. In my and my wife’s close family, there are three medical doctors and assorted nurses and other medical professionals. In my discussions with them, my observation is that 1) they’re all very nervous about the possibility of a frivolous lawsuit, and 2) they have never been sued themselves, and did not know of frivolous lawsuits brought against colleagues. I personally was once sued by a client, and whatever his claim was, it was frivolous. His claim didn’t make much sense, and a jury rejected it. I had a malpractice-insurance lawyer who represented me, and I just missed a couple of days of work. It was a hassle, but hardly a significant problem. And as far as I can tell, from my work and from talking to doctors and lawyers, frivolous lawsuits are a figment of the imagination of the tort-reform lobby and the businesses supporting the lobby.
The real harm caused by frivolous lawsuits is not that they occur. Attempts to track down actual frivolous lawsuits is tough, although there are surely a few, and there are a few more that look frivolous when you don’t know all the facts, such as the McDonalds coffee lawsuit. Rather, the real harm is when the risk of those lawsuits encourage irrational behavior, such as unnecessary medical tests or silly warning labels. And those things happen, not because they are really necessary or helpful, but because public hysteria about non-existent frivolous lawsuits makes people think they are necessary.
The harms caused by tort reform, however, are very serious. Tort reform is usually a shorthand on a limitation on damages that a defendant can be forced to pay. If a reckless driver killed a small child with a car, a jury might award the child’s family a million dollars in damages. And tort reform might limit the damages to a quarter-million, or the damages might be limited for some kinds of lawsuits (such as if the defendant was a doctor rather than a driver) or some kinds of defendants (such as if the driver was a government employee.) And limiting damages like that takes away part of the incentive that people and businesses have to behave responsibly.
When I am driving out of the parking lot at say, a Little League game, I am very aware that there are little kids running around, and if I’m not careful I’ll hit someone. I, like pretty much everyone, am scared of hurting someone with the car, so I’m careful. And I doubt I’d be any less careful if I knew that I could only be forced to pay $250,000 instead of $1,000,000 if I killed someone through my negligence.
But businesses are much less likely to be deterred by ordinary human empathy. Businesses try to make money, and they are bad at making decisions for other reasons. So, they tend to act in the way that will make them the most money. If a business, such as a car manufacturer or a medical-equipment manufacturer, is worried about a multi-million dollar lawsuit, it changes their behavior. If they aren’t worried, because a lawsuit cap prevents them from being sued or limits the amount of money they can lose, then they worry less. We can hope that individual doctors will try to do the right thing for moral reasons regardless of the threat of a lawsuit, but that’s a lot less likely for a business like a hospital or pharmacy.
And, more importantly, sometimes bad behavior can cause someone else millions of dollars worth of damage. There is no good reason to say that you can sue if someone causes you a thousand dollars worth of damage, but not if the damage is a million dollars. And, as poor a way as money is to measure some kinds of damages, there is nothing better. So, how much should it be worth if a child is hurt or killed?
So, that’s a long explanation for why I think tort reform is an awful idea. Medical malpractice reform is a smaller awful idea. And Sharon Meieran, like many doctors, is in favor of tort reform. Ms. Williamson is not. I urge you to cast your ballot for Ms. Williamson.
