A lot of posts on this thread have been based on unrealistic 
dichotomies - if you don't support the current model of US 
litigation then you must be in favour of tort reform, or if 
you think that litigation can worsen the standard of health care 
then you must support HMO cost-cutting.  I am against tort reform, 
as it posed on the US political agenda.  But I am absolutely 
against the litigeousness that sqanders resources, fails to meet 
victim's needs in an adequate or consistent way, and that 
drives bad practices because professionals try to avoid litigation 
rather than getting on with doing their jobs as well as they can. 
It's all so very neo-liberal - 'there's a contract between the 
service provider and the service user. If the service user 
suffers, then the courts should arbitrate and put a price tag 
on that suffering.'

There is a simple pragmatic issue at the heart of this: we 
need to hold professionals and businesses to account for their 
actions, and we need to ensure that people who suffer misfortunes 
are provided with the money to enjoy as full a life as possible. 
Trying to turn this into a question of monetary fairness is 
surreal, especially for anyone on the left.  

But John Thornton writes:
"The patient is disproportionately punished in most instances."
The patient isn't punished. The patient suffers, but not 
because somebody deliberately set out to punish the patient.  
Similarly, Michael writes, "In Doug's example, that means a 
middle-aged human being has been robbed of life, and that, for 
unimaginable pain and suffering, gets maybe $10,000-$15,000 
a year." Yes, but you cannot put a price on that pain and 
suffering. You can provide additional money to meet those 
needs that require money - nursing, medical care etc - but as 
you rightly say, this isn't some kind of contract where a 
broken leg = $20k.  My point is that trying to do this through 
litigation is foolish.

John writes: "Tort reform, as it is currently proposed, is 
a bad idea and anyone with an evenly mildly progressive 
outlook should oppose it." I agree entirely, but that doesn't 
mean that you have to go to the other extreme and support the 
status quo.  

Doug writes of my example that, "This sort of thing is a 
staple of the right-wing anecdote machine", which is irrelevant.
If doctors make decisions based on what they are most likely 
to be sued over, rather than what is best for the patient, 
then patient care is likely to suffer. I use the medical 
example, because it is uncontroversial that medicine is 
socially useful. The example that I know better is banking. 
Where I work in credit risk, decisions are often taken on 
the basis of what the regulator might think is the more 
prudent course, even though we know that it is not more 
prudent. Now, I'm not saying that the same social consequences 
are at stake. But it is an example of where professional 
expertise is being suppressed in favour of a view about 
what outside regulatory forces might think.

Doug: "You may be assuming too much about the rationality of 
the U.S. legal and medical systems." On the contrary, I think 
that the supporters of litigation are assuming too much 
rationality.  For example, assuming that the courts can fairly 
and efficiently apportion blame and put a value on suffering.

Justin:
"I thought you were saying, Oh, don't listen to Justin,
he's just a lawyer,"
You're being very defensive here. I don't think there was 
anything in my post to imply this, and if there was you 
would have had a better argument saying, "so what?" than 
saying, "no, I have no interest".

Also, Justin wrote:
"Oh, so now our lack of national health is my fault
because I wrote a few posts about med mal caps and
tort reform? "
And this because I said that he was pessimistic! Of course 
that's not what I'm saying - I think that we speak with one 
voice on the need for national health provision. The issue 
that I was raising was that when one accepts that the 
political environment is not receptive to arguments for 
national health provision doesn't mean that we have to 
retreat to small tactical issues. Furthermore, it is 
possible that focusing too much on the tactical means that 
we lose the opportunity to make the wider case, especially 
when the tactical argument appeals to sentiments that are 
not necessarily aligned to the universalism that 
underlies the demand for the strategic case.

Justin:
"Sigh, And you are a legal expert because?"
I'm not, of course. I know only anecdotal evidence, mainly 
from the UK context. I contribute to this list not because 
I think I have the answers, but because I have some ideas 
that I would like to test, and some questions that I would 
like to ask.  I am grateful to those, like you, who can set 
me right on the basis of your specialist knowledge. But 
there's no need to be so condescending about it. 

Humbly,

--James

James Greenstein