Tort$ are not pastries

With politicians and protesters right and left screaming about Obama’s proposed health care reform, Bill Batchelder and Lawrence J. McQuillan have another idea: focusing on tort reform instead. This was the idea investigated at a recent Heritage Foundation forum entitled Tort Reform in the States: Protecting Consumers and Enhancing Economic Growth.

In introducing the panel speakers, Hans van Spakovsky of Heritage briefly discussed some of the problems relating to tort. The American tort system, he related, cost two-hundred and fifty-two billion dollars in 2007—or about one thousand dollars per American citizen. He pointed out that defensive medicine (the practice of needless medical testing to avoid future lawsuits) cost between 84 and 151 billion dollars. He also noted that doctors are found not negligent in ninety percent of malpractice cases, but that even when a doctor is found not negligent, it still costs them even hundreds of thousands of dollars to make it through the lawsuit. These are just some of the reasons why tort matters.

The Honorable Bill Batchelder was first to speak. Batchelder is currently the Minority Leader in the Ohio House of Representatives. He spoke of the legislative side of tort, explaining that tort reform is so difficult to pass legislatively because of both its complexity and the importance of the insurance industry. He explained that most representatives, like most regular Americans, do not understand tort, and in fact find it boring to learn about. Because of this, bad tort laws are often snuck into omnibus bills, which representatives often do not read, let alone understand. And when bills come up that solely address tort reform, representatives often don’t understand what they’re voting on.

Batchelder also discussed the problem of judicial activism: all too often, judges are creating the laws regarding tort. When this happens, messy legislative situations can result as judges proclaim their decision untouchable by legislative action. In those cases, judges make laws that actual lawmakers cannot revise.

Batchelder related this problem back to health care by explaining the relation between medical costs and tort. He pointed out that medical costs today can seem exorbitant just because of the high prices doctors must pay for malpractice insurance. Putting caps on how much patients can win for medical malpractice would drastically lower insurance premiums for doctors, and would therefore lower the price regular citizens would have to pay for medical care.

According to Batchelder, however, the answers to tort reform do not lie with the federal government, but with the states. To Batchelder, the United States Congress is far too detached to be effective in reform tort laws that would apply on a state level. Instead, Americans need local leaders to step up—local leaders who will face their neighbors and their friends every day and night, begging them to reform tort for the sake of the state.

Batchelder believes, as Justice Louis Brandeis did, that states should be “laboratories of government.” He suggests that individual states should experiment with tort reform to find a system that could work best for all the states. “We need to have a state focus in this area,” Batchelder concluded. “I don’t think Congress is the right place to solve these problems.”

Allie Winegar Duzett is an intern at the American Journalism Center, a training program run by Accuracy in Media and Accuracy in Academia.