Posted: October 8, 2018
One of the most consistent goals of so-called “tort reform” is to put an upper limit on the amount that a defendant has to pay for the damage he causes in injury suits. For example, in Texas, where there are such limits, a doctor can kill a child or a housewife or a grandfather through malpractice and only have to pay a maximum of $250,000 for doing so—no matter how bad the negligence. That’s it: the value placed on human life is $250,000.
If the roles were reversed, and the patient killed the doctor’s wife, child or grandfather through reckless driving, then there would be no limit on how much the doctor could sue the patient for. This is what has become of conservative thought and equal justice under the law in the new Republican Party: if you are rich and powerful you get legal protections that “common folk” do not.
And of course, business losses are not capped at all in lawsuits: nobody is discussing how “runaway juries” must be stopped from awarding big money damages to businesses. Apparently juries are only unfair when they award damages against rich defendants—not when those same defendants want to sue for millions.
But there is a bigger issue here, and it is one that we all learned when we were growing up. If you remove the consequences for bad behavior, what you get is more bad behavior. Politicians—particularly those in the new Republican Party—seem to understand that very well when they support stiffer fines and prison time for criminals, bigger penalties for illegal immigrants, and less debt forgiveness for consumers or college student borrowers. Oddly, they don’t seem to understand it when the issue is deterring medical malpractice.
When doctors and their insurers know that if malpractice kills someone there is going to be a consequence equal to the enormity of a patient’s death, there will be an insistence on following rules and paying attention—an insistence that is lost when there is no consequence.
The idea that there must be a consequence for bad behavior is true when a child knows that he is not allowed to hit his sister or will be spanked. It is true when someone steals and faces a criminal penalty for it. It is true when a dog knows it will be punished when it messes on the carpet. Rules are only rules when they are enforced. Otherwise, they are “suggestions”, and unruly children, criminals, dogs and bad doctors will ignore those suggestions.
In the context of medical treatment, making safety rules suggestions instead of enforceable requirements is a very bad, and very dangerous, idea. Of course most doctors follow the rules and care about their patients—just as most drivers follow the rules, and most children do. But just as there are bad drivers, naughty children and dishonest people, so there are bad doctors, lazy doctors, greedy doctors, and doctors who don’t pay attention when they should. It is idiotic to pretend otherwise, and equally foolish to take away the consequences for bad and dangerous behavior in the medical profession.