Congress is preparing to tackle tort reform. Sounds like a real yawner, but it isn’t.

The argument for tort reform – capping the amount of civil damages a plaintiff could collect in a medical malpractice claim – is that aggressive personal injury attorneys and sympathetic juries are fueling excessive judgments, driving up the cost of medical care, pushing doctors out of practice and limiting patient options.

Doctors say that capping potential financial claims against them would prompt their return to the profession, which is good for patients.

It’s a strong argument, and it’s one that’s been made before.

Thirty years ago doctors were saying the same thing: malpractice insurance is too expensive because courts are too generous to plaintiffs. Lower the claims and insurance will drop, they said.

It didn’t happen. The cost of malpractice insurance, which doctors prefer to call medical liability insurance, is more expensive than ever -even in states that instituted caps.

The past history of tort reform must be considered as Congress moves forward, but lawmakers must also consider the further harm caps could inflict on injured patients.

Limiting financial awards would protect doctors, good and bad. While we like to think all doctors care deeply about their patients and always do the best they can to treat and protect them, there are reckless doctors in active practices who don’t deserve the protection of limited malpractice exposure. Patients must trust that when their doctors hurt them, they can be justly compensated for those injuries.

There’s another dimension of this argument that flouts basic fairness.

The legislation that Congress will debate is limited to tort reform for physicians. This would not be a universal limit on civil court awards.

If we were to believe that doctors’ livelihoods are being threatened because of rising insurance rates, why wouldn’t we believe other industries are suffering, too?

What about auto makers whose poor designs cause the deaths of entire families? Hefty court awards must be hampering Detroit.

What about Big Tobacco that consistently produces a product that kills? The industry has paid out billions in the last decade in awards and settlements, which it claims has inhibited its ability to thrive.

What about fast food restaurants that ply us with fatty burgers? The threat of million-dollar lawsuits against McDonald’s is looming as plaintiffs are lining up to file complaints. It will be tough to market supersize products if courts find they contribute to obesity.

Tort reform may put a damper on aggressive personal injury lawyers, but it would also take pressure off irresponsible doctors. If it brings stability to the malpractice insurance market, which is not a proven theory, physicians may enjoy an unfair commerce advantage over other service and product providers. In the past, insurance companies haven’t been too eager to pass savings along to physicians anyway so reformation might be a worthless effort that doesn’t save doctors money and doesn’t protect patients.

Our civil court system offers relief to plaintiffs who have proven they have been harmed. If we institute a cap on medical malpractice cases we open the door to cap all civil court awards, which destroys the very protection plaintiffs are entitled to.

Is that really the direction we want to go?


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