That Elusive Common Ground

| Tue Feb. 23, 2010 7:30 PM EST

What could Barack Obama offer congressional Republicans in return for support of his healthcare bill? How about malpractice reform? Jon Cohn ponders:

The key is finding ways to fix the malpractice system so that it helps both physicians and the patients, rather than one at the expense of the other. And there are several promising possibilities for achieving that. One is to have doctors report medical errors to hospital administrators, who would then notify patients and begin negotiations....[Another] proposal — perhaps the most intriguing — is to tie malpractice to quality incentives, by offering some sort of legal protection to physicians who demonstrate they have abided by accepted clinical guidelines.

....This is where the Republicans could push the discussion forward. Both the House and Senate health reform bills encourage more experimentation. But they don't set aside enough money. If Republicans wanted to do something to change malpractice, they could call for more funding of these programs — and, perhaps, more aggressive guidance about how to handle the results.

Of course, that would mean achieving malpractice reform, a cause they've long championed, in a different manner than the Republicans have traditionally embraced. But that's the definition of compromise: Finding common ground with an adversary in order to achieve a goal you both share. Obama has shown he's willing to do that. Will the Republicans do the same?

Jon is too....decorous....to say this outright, but the answer is no. The reason is that Republicans have a very specific motivation for pursuing tort reform, and it has nothing to do with actually making tort law fairer. Here's me a few years ago, in a review of Stephanie Mencimer's Blocking the Courthouse Door:

In the 1980s and 1990s, conservative activists began pursuing a series of strategies aimed not just at increasing Republican votes and campaign contributions, but also at reducing Democratic votes and campaign contributions — and doing so in a structural way that would permanently erode the Democratic Party’s ability to win elections. The result was an increased interest in gerrymandering, union busting, voter ID laws, and the K Street Project, a party-wide program aimed at persuading lobbying firms to stop hiring Democrats.

And, of course, tort reform. Tort reform was already a natural Republican Party issue thanks to its support in the business community, but it was [Grover] Norquist, in his usual bald style, who pointed out in 1994 that there was more to it than just that: The big losers in tort reform are trial lawyers, and trial lawyers contribute a huge amount of money to the Democratic Party. “The political implications of defunding the trial lawyers would be staggering,” he wrote.

When it comes to medical malpractice, the Republican Party doesn't really care about "reform." They want one thing and one thing only: caps on punitive damages. Why? After all, big punitive awards, almost by definition, are only handed out in the worst, most egregious cases of malpractice. It's the little suits that are most likely to be frivolous.

Here's why: because big damage awards are where trial lawyers make a lot of money, and trial lawyers support Democrats. Capping damages hurts trial lawyers in a way that serious reform most likely wouldn't.

Democrats, of course, generally support trial lawyers, and in return they get a lot of money from them. Still, there are a lot of Democrats who would support serious efforts at making our malpractice system better and more efficient. This would reduce trial lawyer income, but it most likely wouldn't decimate it the way damage caps would. Republicans, conversely, only care about decimating trial lawyer income, which means that none of them are interested in serious reform. It's caps or nothing. This makes finding common ground more than a wee bit difficult.

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