Tort reform for medical malpractice is an unfortunately under-emphasized part of the current debate over health care reform.  The theory goes, doctors have to practice “defensive medicine” to shield themselves from liability.  While the idea that doctors order tests they know to be unnecessary and extraneous in order to shield themselves from liability seems to paint doctors in a bad light, but a more nuanced position would be that many tests are only of marginal importance, but doctors have an extra incentive to make sure they don't make any mistakes.  The cost to the healthcare system is difficult to quantify, because there is no way to determine the motivations behind the tests a doctor orders, and for that reason, it is often written off as a myth.  However, the CBO released its estimates of the costs and they are definitely non-trivial:

The latest analysis from the nonpartisan Congressional Budget Office estimates that government health care programs could save $41 billion over 10 years if nationwide limits on jury awards for pain and suffering and other similar curbs were enacted. Those savings are nearly 10 times greater than the CBO estimated just last year.

Even for those who want to maintain “accountability” among physicians, minor systemic changes could alter the behavior of doctors and save money.  For one thing, instead of hearing medical malpractice cases in front of citizen juries, establish medical tribunals composed of physicians and others knowledgeable about the practice of medicine.  These tribunals can be impartial, and serve to throw out the frivolous lawsuits that put a strain on the system.  That is just one example of a simple adjustment that would pay dividends.

Unfortunately, the fact of the matter is that the Democratic party controls health care reform and they are beholden to the trial lawyer lobby (See: John Edwards).  Tort reform is the cause of the Republican Party, who failed to make a serious effort at healthcare reform during their eight years of leadership, and are completely ineffectual now.  David Leonhardt discusses the prospects:

The Democrats are not going to make malpractice reform a priority. They have other priorities: universal coverage and, at least in the case of the White House and some Senate Democrats, nudging the system away from fee-for-service medicine. As Republicans like to point out, Democrats also receive large contributions from trial lawyers. Trial lawyers don’t like malpractice reform — for both legitimate reasons (wanting to make sure injured people have the right to hold doctors accountable) and self-interested ones. With Republicans at the table, you could imagine a compromise that tried to reduce defensive medicine without simply insulating doctors from their mistakes.

But health reform isn’t likely to include much malpractice reform unless the Republicans negotiate for it. And the Republicans can’t negotiate for it if, with the exception of Senator Olympia Snowe, the Maine Republican, they have made it clear that they’re going to oppose health reform virtually no matter what. “Republicans are going to oppose this health care bill,” as the Times columnist David Brooks has written. “Oppose, oppose, oppose.”

The end result: the healthcare system is going to subsidize $41 billion of waste as a result of political lobbying.  It is hard not to be cynical about the entire thing.  Hopefully the new CBO estimate will cause people to change their minds. But at the end of the day, tort reform does not have an effective constituency behind it, and, unfortunately, those who profit from that waste do.

Which leads me to my novel proposal: allow plaintiffs that lose medical malpractice cases to sue their attorney for legal malpractice.  This will ensure accountability among lawyers, reduce their willingness to take on frivolous lawsuits, and compensate the plaintiff for the pain and suffering endured from having to sit through a medical malpractice trial.  After all, legal professionals are under a duty to provide clients with a reasonable standard of care.  In the words of attorney Alex Alvarez, even lawyers makes mistakes – don’t be a victim.