I have written before about why medical costs are high ("High Cost of Medical Care"), and in doing so I did mention that, while only a small factor, our current tort laws do help to drive up the cost of medical care, along with many other services. However, some who argue for tort reform, or against ObamaCare, have taken a stronger position and argued that tort reform would have a greater impact than I allow. And they may be right, I may have underestimated the damage current tort practices cause.

What is interesting is the response I have seen from those pushing universal coverage. Their response is that "30 states have some form of tort reform" and "medical costs rise as swiftly as in other states."

Now, first, let me say that tort reform does not change one iota the other five causes I found for rising costs (insurance stops cost competition, regulation prevents economies of scale or real competition, costs imposed by government insurance, unreimbursed costs, and, finally, the very real high quality of care we receive). Still, one would expect that tort reform would cause some reduction of costs.

Except that "tort reform" is not always what one would expect.

You see, "tort reform" means a lot of things. Sometimes it means nothing more than caps upon awards. In other cases it means caps on punitive damages only. Or restrictions upon expert testimony. It can mean lots of things, many of which have only  a marginal impact on medical malpractice cases.

For example, let us look at one of the biggest costs, defensive medicine. That practice is the outcome of absurdly high standards of care. Basically, if you have any sort of head injury, no matter how slight, and then develop a problem, you will end up suing the doctor who did not perform an MRI, whether one was medically required or not. And the courts will usually support you. This is a question of what is the "standard of care", and, as far as I know, not one state has adopted a statutory reform defining the "standard of care". In other words, the reason behind most defensive medicine is not touched at all by any tort reform.

Or let us take caps on punitive damages. Yes, these are nice for corporations who were seeing hundreds of millions in punitive damages, but they mean nothing to most doctors. Doctors don't often see punitive damages, those massive settlements are defined as actual, not punitive damages, meaning caps on punitive damages have no impact either.

And then we have caps on actual damages. Yes, these may help doctors, somewhat. They might lower malpractice premiums slightly, as damages will tend to be slightly lower. But they will do nothing to stop defensive medicine. Doctors will still not want a suit, as they will still lose their malpractice insurance, or see their premiums rise, fi they lose a suit, be it capped or not. So, while it may make a small difference in what doctors pay for premiums, it won't really have any effect on most of the costs that the tort system imposes.

And, let us be honest. Lawyers are lawyers, they make a living getting around the law. Recall how Elliot Spitzer couldn't find Martha Stewart guilty, so he alleged her defense amount to perjury, basically jailing her for offering a defense? That is the sort of thing the law is supposed to prevent, but rarely does. Similarly, lawyers can often find ways around caps. They can claim only a part of the damages are for medical malpractice and the remainder is for pain and suffering, or they can sue on behalf of a husband for loss of consortium, which the legislature forgot to cap. Or they can allege a higher level of negligence which allows greater punitive damages, or any of dozen tricks with which lawyers are well versed. It is not always possible, but in many cases the tort reforms which have been passed, being based more on capping damages than fundamentally reforming tort practices have simply left open too many loopholes.

And that is why I say this argument is a red herring. Yes, states have enacted some sort of tort reform, but in most cases it does not touch on the fundamental causes of defensive medicine. At best it may offer a slight reduction of malpractice premiums, but even there it is likely that attorney tricks will gut event he modest reforms, such a caps on damages, and the reforms will end up being nothing but nominal reforms, without any real impact.

POSTSCRIPT

The problem with tort reform is that it never seems to touch on the fundamental problem that created our current tort system, the destruction of the right to contract and the substitution of what some witty writer described as "contorts". As the courts now regularly read exclusions and exemptions into any attempt to contractually assign liability, contracts have become effectively worthless, and liability and damages entirely unpredictable. The simple reform is to enact statutory limits upon the courts' ability to read exemptions into contracts, declare contracts unconscionable and otherwise invalidate the express wishes of the contracting parties. Once contracts are restored we no longer need worry about damages, standards of care, and other such matters as they will be spelled out in contracts, making liability once again a boring matter of applying the contractual private law to the facts, and tort lawyers will be reduced to chasing after auto accidents for a living, rather than raking in a fortune with dubious claims of obstetrically caused CP or "traumatic cancer".

POSTSCRIPT II

For those who want to understand why I have so little respect for lawyers, look up "traumatic cancer". It was a theory, popular at one time, that the increased cell growth at the site of an injury led to an increased risk of tumor formation. It was invalidated sometime in the middle of last century. However, for over 20 years after it was conclusively dismissed by the medical community, lawyers were still winning cases based on the theory. The one good thing about this whole disgraceful episode in our legal history is that it makes John Edwards' channeling of dead babies seem a little less sleazy and absurd... No, it doesn't, does it?

POSTSCRIPT III

You can read one quote that inspired this post among the comments linked to this rather interesting WSJ article.