John Lemon reacted to my post on Kinsley’s piece on tort reform last night. For the most part, he’s simply addressing a different aspect of the issue, personal responsibility, with which we are in essential agreement.
I differ with John on some minor points, though:
First, I rarely, if ever, hear somebody calling a medical malpractice suit a “frivolous lawsuit.” That is usually reserved for the drunk guy’s family who sues SeaWorld after said drunk guy decides to go swimming with Willy late one night.
Frivilous is of course a subjective term. But I’d classify suits against doctors who were sober and competent but whose patient had unfortunate outcomes as “frivilous.” The problem with such suits is that the process becomes the punishment. The time and money spent defending–and insuring–against these suits is a huge resource drain. And, occasionally at least, plaintiffs hit the jackpot with these cases.
Second, both Kinsley and James miss a more important and philisophic point that is at the heart of tort reform: our society is increasingly disassociating risk from responsibility, which in turn is creating perverse incentives for productive behavior in many parts of our economy. Let me explain.
After which comes several paragraphs saying, essentially, that tort suits are all unjustified because they should be dealt with by private insurance or criminal law. Of course, then we’d wind up suing insurance companies who don’t want to pay instead of doctors who don’t want to pay. And, from a pure practical politics standpoint, if we’re having a rough time getting caps put on damages, there’s no way we’re going to simply eliminate an entire class of lawsuits.