Let’s Talk About Tort Reform!

This is one of those topics with a good chance of starting an argument, which would be swell fun for everyone. In the current debate over our health care system, to which the Show-Me Institute contributed a terrific paper to yesterday, one of the proposals put out there is tort reform. Indeed, our study states among its seven recommendations of how to improve our health care system:

• Reform tort liability laws.
  Defensive medicine needlessly drives up medical costs and creates an adversarial relationship between doctors and patients.

Now, to be clear, this is the last of the seven recommendations and the least discussed within the paper, but how do they mean for it to apply? This exact issue is being discussed all over the web. It also appeared in that great op-ed from the Whole Foods CEO that I linked to yesterday.

The health care bills being discussed are, as you all know, part of a federal issue that has tremendous effects on the states. But, because it is for the most part a federal issue, I’ll stick with how tort reform might be implemented nationally. I fully support tort/malpractice reforms in federal courts. But only a very small percentage of malpractice claims are filed in federal court — usually claims against a veterans hospital, or something like that. The vast majority of malpractice cases occur in state courts, and just four years ago Missouri passed greatly needed comprehensive changes to the state’s malpractice system.

So, are supporters of tort/malpractice reform talking about just changing the malpractice system at the federal level, which would probably be a good thing but would only affect a very low percentage of total cases filed? Are they talking about encouraging states to reform their own malpractice laws, which Missouri has already done very successfully and which I fully supported at the time and still do? Or — stay with me, here — are people who generally support states’ rights arguing in this instance for changing the law so that tighter federal laws would replace and overrule state laws in malpractice cases? I realize that it is incomprehensible that someone, especially a politician, would generally support doing things one way but change that opinion in an instance where it would work against you. (Please note dripping sarcasm.) So, which of the three is it?

I have to fear it is the latter, which is also the only one of the three possibilities I don’t support. Civil tort laws have long been the province of the states (I’ll stand corrected by any lawyers in the audience). Just because a federal takeover/usurpation in this instance might fall along the lines of something I support in general (tighter malpractice laws) does not mean I am going to give up on the 10th Amendment.

Missouri succeeded in making significant improvements to how our system deals with civil justice and malpractice a few years ago. It is my hope that Illinois will also do so soon. However, this is still something for the states to determine, rather than the federal government.