I was struck today by a potential problem under ObamaCare, or, rather, under the cost-effectiveness regime that seems to be coming whether we get the "public option", "single payer" or outright nationalization. As it relates to liability law, perhaps a little background is in order.

There is a little known aspect of liability law that often strikes laymen as absurd. Perhaps an example or two will help to illustrate.

First, the FAA established requirements for aircraft design, setting the standards of what is and is not acceptable. Manufacturers can exceed these standards, but the standards themselves are assumed to be the minimum safe requirement. So, if a manufacturer follows the FAA guidelines and is later sued for defective design, is it a defense that they met the government standards, and thus could not have acted negligently?

The answer, despite what many assume, is no. And, in all honesty, it is an arguable point. After all, it is possible the government guidelines are set far too low, and what they allow would be negligent. It is unlikely in an area as highly regulated as aircraft manufacture, where standards are updated often, but it is possible for lawyers to argue otherwise. So, let us move on to an even less understandable example.

In the areas of agricultural and industrial chemicals, there are often warnings required by the FDA or EPA, and those warnings are almost always specified not only word for word, but also in terms of size, placement, even color and border. The manufacturer or seller is not allowed to add or subtract, nor can they add supplemental warnings, they must place the government warning, and only the government warning. So, if one of those manufacturers were sued, on the grounds that they did not adequately warn about potential harm, would it be a defense that, not only was the warning required by the government, but could not be modified?

The answer, again, is no. At least there is precedent that supports that position. Despite the fact that deviating form the government mandated warnings would invite fines, confiscation, or perhaps prosecution, the courts have ruled the manufacturer was still required to provide better warning or face liability. The judges have argued that the manufacturer should have lobbied the government to modify the warning, or else not manufactured and distributed the chemicals, as the government warning was insufficient and thus negligent.

Now, clearly in the second case the judges were just fishing for deep pockets and inventing law to fit their goals. But that does not make the precedent go away. And so, there is a precedent on the books for arguing that even if the government requires or prohibits an action, that does not, in itself, eliminate the possibility that such action is negligent.

Which brings me to my point. What if, at some future date, the ObamaCare cost-benefit wonks decide that something we now avoid, such as vaginal delivery after a c-section, is not worth the cost, that the risks are low enough to stop making c-sections routine. What is to prevent future lawyers from finding every birth defect after that policy decision and blaming it on the vaginal births? We already have the precedent of John Edwards and his ilk blaming perfectly unrelated medical conditions on a lack of c-sections, so why not do the same when c-sections are prohibited by policy? And since obeying the government is no longer a defense against negligence, what is there to stop such cost-effectiveness rulings form becoming lawyer paydays?

 I would imagine under other circumstances, the government would step in and indemnify the hospitals and doctors, or pass legislation prohibiting suits against those obeying government dictates, but two facts argue against that working. First, even if it was done, the liability culture is so ingrained in our court system (see "Red Herring" and "The Problem With Tort Reform") that I imagine lawyers would find a way around it, say suing for mental pain caused by worry, or suing for inadequate warning, or some other trick to slide around any government prohibition. But then again, it is doubtful such a prohibition would happen, as the trial lawyers are so influential in the Democrat party. Recall how upset Democrats were with the indemnity for the airlines after 9/11? Or the possibility of indemnifying telecomms which violated privacy while helping the government? Most likely the Democrats would just turn a blind eye to the new crisis ObamaCare would create, as they have to the rest of the crises rampant liability abuse has created.

For a while.

Once the lawsuits get too far out of hand, and hospitals and doctors are going bankrupt and leaving practice, I could see the government using that failure as an argument that the "free market" had failed, and argue for a fully nationalized health care system,. owned and managed by the state, immune from liability suits and fully taxpayer funded. Funny how, for the government, especially for Democrats, though not just for them,  the solution to every problem seems to be more government. (Even as the cause of almost every problem seems to be more government as well.)