The Meaning of Malpractice Reform for Republicans

Malpractice reform is so important to Republicans that they will never support it.

Jonathan Cohn suggests that Obama should embrace medical malpractice reform as part of health care overhaul.  He’s right: real malpractice reform, such as the “Sorry Works” plan adopted by the University of Michigan health system, is a promising way to cut costs at the margin.  It won’t have a major impact, but it might also foster compensation.  Cohn’s other major suggestion — retooling medical malpractice into a third-party no-fault system resembling workers’ compensation — also has promise.  Despite all of workers’ comp’s problems, and there are many, it still is better than the tort system; it’s 23% rate of administrative costs is less than half that of the tort system.

Cohn asks, at the end of the piece, whether Republicans would ever take yes for an answer, and the answer, of course, is no.  But this is not simply because the GOP s dedicated to defeating the bill no matter what.

Instead, the answer in my view is a little more bizarre: the GOP needs malpractice reform so much that it will never enact it.  Yes, you read that right.

The Republicans have a key problem concerning health care reform: they basically don’t believe in it.  For truly principled conservatives, health insurance is like a widget: if you have the money you buy it, and if you don’t have the money you don’t.  That’s what it really means to have the market sort things out.  But they can’t say that, because that would be grotesquely unpopular.  What to do?

Answer: hang onto seemingly appealing but actually impotent ideas like tort reform, or seemingly appealing but horribly dangerous ideas like removing state insurance regulations.  But don’t ever enact them, because then it will become apparent that your idea don’t work.

Don’t believe me?  Well, recall who ran all three branches of government for four years.  Do you remember them enacting malpractice reform?  Me, neither.

Importantly, the GOP Congress did enact legislation with the Orwellian name of the Class Action Fairness Act, which was designed to stifle class actions.  When it wanted to pass legal reform, it did so.  But it never passed malpractice reform because Republican leaders knew that that would rob it of a platform.

So don’t hold your breath on this one, either.  Republicans are very principled: they believe in putting party over country, and nothing will stop them in that.

Author: Jonathan Zasloff

Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic - Land Use, the Environment and Local Government. He grew up and still lives in the San Fernando Valley, about which he remains immensely proud (to the mystification of his friends and colleagues). After graduating from Yale Law School, and while clerking for a federal appeals court judge in Boston, he decided to return to Los Angeles shortly after the January 1994 Northridge earthquake, reasoning that he would gladly risk tremors in order to avoid the average New England wind chill temperature of negative 55 degrees. Professor Zasloff has a keen interest in world politics; he holds a PhD in the history of American foreign policy from Harvard and an M.Phil. in International Relations from Cambridge University. Much of his recent work concerns the influence of lawyers and legalism in US external relations, and has published articles on these subjects in the New York University Law Review and the Yale Law Journal. More generally, his recent interests focus on the response of public institutions to social problems, and the role of ideology in framing policy responses. Professor Zasloff has long been active in state and local politics and policy. He recently co-authored an article discussing the relationship of Proposition 13 (California's landmark tax limitation initiative) and school finance reform, and served for several years as a senior policy advisor to the Speaker of California Assembly. His practice background reflects these interests: for two years, he represented welfare recipients attempting to obtain child care benefits and microbusinesses in low income areas. He then practiced for two more years at one of Los Angeles' leading public interest environmental and land use firms, challenging poorly planned development and working to expand the network of the city's urban park system. He currently serves as a member of the boards of the Santa Monica Mountains Conservancy (a state agency charged with purchasing and protecting open space), the Los Angeles Center for Law and Justice (the leading legal service firm for low-income clients in east Los Angeles), and Friends of Israel's Environment. Professor Zasloff's other major activity consists in explaining the Triangle Offense to his very patient wife, Kathy.

9 thoughts on “The Meaning of Malpractice Reform for Republicans”

  1. "Don’t believe me? Well, recall who ran all three branches of government for four years. Do you remember them enacting malpractice reform? Me, neither."

    This is PRECISELY why I can't take Republicans serious on healthcare, and something that for some reason never gets commented on. Malpractice reform is a nice tool to have in the shed for Repubs, but only to the extent that Repubs use it to deflate their political opponents.

  2. This makes sense to me. It's a classic red-herring. Malpractice reform has a trivial effect on health care costs yet it is one of the first "solutions" trotted out. If they didn't have it – and its sort of bogeyman "evil trial lawyer" appeal – they'd just pick some other arbitrary issue to hide behind.

    Karlos, at this point what CAN we take the Republicans seriously on? It sounds like projection, and I know there are lots of zombies on the left too, but this is asymmetric warfare!

  3. You actually do have a point for once, exaggerated as it might be: If there's one thing '94 taught the conservative base, it's that the Republican establishment was all talk and no action. They prefer not to deliver, on the theory that if you actually deliver on a promise, the people you made the promise to are happy, and happy people drop out of politics and go back to their everyday lives. You could see that in the way the whole "Contract with America" was managed to make sure the proposed reforms got voted on by everybody who needed to, without actually becoming law.

    This, of course, doesn't imply that the promises are in any particular instance bad policy. The GOP breaks these promises for entirely political reasons, not for the good of the country.

    And you're right, and wrong, about Republicans not believing in health care reform. Republicans actually do believe in it, (Aside from the institutional Republican party, which believes in having people elected with Rs in front of their names, and nothing more.) but, of course, mean by it something rather different than Democrats do. They'd rather make the market work, by removing legal distortions, like the ban on interstate marketing of insurance, or the way tax laws force most everyone to get their insurance through their employer, than replace the market with a government program. Whereas Democrats appear to view a government takeover of the system as ideal, and fear that any marginal reforms that make insurance work better would serve as an obstacle to that goal.

  4. "the GOP needs malpractice reform so much that it will never enact it."

    This sounds a lot like their stance on abortion. They need it as a wedge issue so badly that they will never actually pass anything banning it altogether. I've been telling my single-issue R-supporter friends that for years, but they can't bring themselves to believe it, even after all these decades of empty promises on the issue.

    When W's administration got re-elected, I polled my conservative friends and family to find out why they would side with proponents of torture (if you disagree, just read any of Cheney's statements on the issue). For everyone, down to the last person, they felt they had to vote Republican because the alternative is to "support abortion". They don't for FOR the GOP, they vote AGAINST abortion. Here in the middle of Heartland USA, the GOP can do no wrong as long as the DEM's support legal abortion.

    From a purely political viewpoint, the smartest thing the DEM's could do is oppose abortion. It would take a huge number of single-issue voters off the straight-party voting train. It is to their credit that they stick to their principles on the issue.

  5. Brett is mistaken, but in a crucial way: happy people still vote for the people who make them happy. They just don't make the noise required to take over the national discourse.

    And in a way it's good that the GOP hasn't satisfied these particular demands, because if they did, they'd have to find other scapegoats for their base to be riled up about hating. Oh, wait. Teh gay.

  6. I do not know of the names of any conservative politicians in this country.

    My definition of a conservative is a politician, who, when in power, wants to shrink government. I am not aware of the existence of any such critter in the year 2010.

    The jokers who call themselves conservatives have demonstrated that they only want to shrink government when they are not in power. Think Dick Cheney as the paradigm.

    Should I go to the hospital and make a citizen’s arrest against Cheney for impersonating a conservative?

  7. Jonathan,

    You're missing something, though – it's almost always possible to whittle away at something each Congressional session while always leaving something to do next time. It is a legitimate mystery why the GOP didn't propose med mal 'reform' that would have slightly limited injured patients' options, while still leaving a broad array of viable claims that could be blocked in future sessions. This might have even won them some more donations from the AMA/AHA cohort and given them a win to wave around to voters. In fact, the more I think about this, the more I think the only possible explanation is that the modern day GOP political class simply doesn't give a damn about policy at any level – the Mayberry Machiavellis in action.

  8. "Well, recall who ran all three branches of government for four years."

    Fix your type-o. It was SIX years.

  9. On a related note, from 2001-2008 the GOP's energy plan was to drill ANWR. Despite the fact that the /total/ amount of oil in those deposits represented about 3-6 months of oil at our consumption rate, they were able to hold this up as their go-to energy policy for several years. Had the Democrats actually allowed them to drill ANWR, what in the world would they have done?

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