Oui! En Garde!

Medical Tort Reform –

A Pointed Solution At Last

Medical tort reform is like the half-dotty Aunt who shows up at all family gatherings to ask 20-somethings if they’ve solved that bed-wetting problem. A “yes, Auntie” gets you a round of embarrassing congratulations and a “No Auntie” gets an equally embarrassing round of encouragement.

“Shove it, Auntie!” isn’t an option, unless perhaps in South Carolina, where manners are clearly different. So Auntie usually wins. It’s the same for lawyers in medical cases.

“So Doctor, have you stopped your habit of malpractice?” a lawyer will demand with a wink for the jury. No matter which way the doctor answers, the jury will get a wink, the lawyer will get a huge fee. And the rest?

The doctor might get the shaft, a legal version of a colonoscopy in which a verdict is shoved upwards until all polyps of money are removed. Or the jury might shaft the patient.

All this dramatically increases the cost of health care, since doctors are forced to pay outrageous insurance premiums so they can afford lawyers to defend them against the outrageous charges of other lawyers representing patients and their insurance companies.

Critics of the current system have pointed out that it’s set up so lawyers and insurance companies always get paid while doctors and patients trade turns on the shaft. Reform, in the view of lawyers and insurance execs means mandatory washing of the shaft between users, perhaps by the pesky do-gooders who keep demanding limits on “pain and suffering” jury verdicts.

Turns out some of those pesky do-gooders are Republicans, so the following modest suggestion is sure to draw bipartisan support because it solves a current problem by returning to the past.

We don’t need to reform tort law, folks, we just need to make dueling legal again.

You know, with swords or pistols or knives or cudgels or whatever both parties feel will get the job done. And the job?

A “tort” in civil law is a wrongful act for which the inured party can seek damages. If you say a local lady in private business has seen more pumping action than a fire company, that’s a tort. If the fire company says the lady has a loose pumping gasket, that’s another. And if the doctor who was supposed to replace your left hip replaced the right instead, that’s still another.

Torts come in endless varieties but most boil down to an offense against one party’s honor, property or person. And that’s what duels once settled quickly and to the complete satisfaction of both parties since both winners and losers had judgment absolutely beyond appeal.

Of course, to get such a reform passed, we’re going to have to make certain that all the folks now in the game get at least something.

For insurance companies, we’ll pass a requirement that both duelists take out life insurance policies in the amount under dispute, naming the other party as a beneficiary. Skewer the doctor who charged you $150,000 for fixing the wrong hip and you get both money and satisfaction. If the doctor wins, he gets satisfaction and his fee.

Lawyers, of course, will want their cut of the new action, so the new law will have to permit them to be co-duelists, able to dispatch either the opposing party or that party’s lawyer in return for a pre-agreed split of the insurance proceeds.

A side benefit to the Republic is that each such decision will necessarily result in the death of at least one lawyer, hardly a stampede of legal reform, but nonetheless one less ass in the herd.

The Obama administration is committed to passing health reform this year.

As they say, “Yes We Can!”

But let’s add tort reform:

“Oui! En Garde!”

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