I participated yesterday (and probably today) in an exchange of emails concerning the lack of malpractice reform as a fundamental component of health care reform.  When I consider malpractice reform I favor the health court concept rather than caps.  I favor caps, but health courts would likely make caps unnecessary.  Moreover, I believe health courts would do a better job of decreasing the unnecessary testing driven by the fear of malpractice.

So why not have true malpractice reform?  Why Medical Malpractice Is Off Limits

An effective justice system must reliably distinguish between good care and bad care. But trial lawyers trade on the unreliability of justice. It doesn't matter much whether the doctor did anything wrong—a lawyer can always come up with a theory of what might have been done differently. What matters most is the extent of the tragedy and that a case holds potential for pulling on a jury's heartstrings.

I believe we do have some funding for state initiated health courts.  I suspect that is the best we can do in 2010. 

Please read this link – It Is Patients Who Most Need Tort Reform

It is patients who are harmed the most by the current tort system, both because it fosters limitations in access to care and because it relies exclusively on a selective, protracted, and unpredictable legal process. The absence of negligence diminishes a patient's ability to receive compensation for a bad outcome. The poor correlation between lawsuits and medical competence not only fuels defensive medical practices, but also means that little is done to target the physicians and systems that pose the greatest risk to patients.

A far better approach would be first to provide a general insurance fund, administered through arbitration or medical courts, to compensate patients for bad outcomes whether or not they are due to any demonstrable fault, and second to create a system for identifying and correcting systemic and individual flaws in a nonthreatening and nonaccusatory fashion. By dissipating the dark cloud of litigation and focusing instead on ways of improving patient care and compensating patients for bad outcomes regardless of fault, such a system would optimize care, mitigate defensive medical practices, and ultimately minimize costs.

The author has explained the problem well.  We can only hope that we will one day see true tort reform.  But in this, we must criticize the Democrats who consistently have resisted any notion of tort reform.  Perhaps this paragraph from the first link explains their obstruction.

Eliminating defensive medicine could save upwards of $200 billion in health-care costs annually, according to estimates by the American Medical Association and others. The cure is a reliable medical malpractice system that patients, doctors and the general public can trust.

But this is the one reform Washington will not seriously consider. That's because the trial lawyers, among the largest contributors to the Democratic Party, thrive on the unreliable justice system we have now.

Related posts:

1. One more thought on rationing
2. What issues should the Republicans stress in the health care summit
3. Commentaries on malpractice
4. In which Evan Falchuk explores health care reform
5. JAMA on the effect of malpractice

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