Day on Torts
Bill Haslam is the Republican nominee for Governor of Tennessee. I have never met the gentleman, but my friends who have say he is friendly and bright.
Mr. Haslam’s latest television commercial calls for Tennesseans to address problems in health care, asking for more personal responsibility and tort reform in the scope of five seconds.
Readers know that since at least 1975 "tort reform" has been advanced to protect doctors and hospitals from personal responsibility for their actions. Through damage caps, artificial restrictions on who can testify as an expert, modification of the collateral source rule, and other measures, legislatures across the country have actively worked to reduce the personal responsibility of health care providers that harm patients.
Thus, to call for tort reform while calling for personal responsibility means one of four things. First, Mr. Haslam simply doesn’t know what tort reform is. This alternative does not appear likely.
Second, maybe Mr. Haslam wants to reform our legal system to actually help patients have a level playing field in medical malpractice litigation. There are several changes that could be made to the system that would increase the likelihood that doctors and hospitals would be held responsible for avoidable errors. However, while there are some Republicans who understand that our legal system favors health care providers and that further anti-patient reforms are not necessary, I doubt that Mr. Haslam would find broad-based support in his party for pro-patient reform. There are some plaintiff trial lawyers who are Republicans who claim that this can occur, but history tells us they are wrong.
Third, Mr. Haslam believes in personal responsibility for patients but not for health care providers (unless they are acting in a patient capacity).
Fourth, it may be that Mr. Haslam recognizes that the two notions are irreconcilable, but choose to use both phrases in the same breath simply because he believes that the citizens of Tennessee won’t think about the ideas deeply enough to understand what he said. This would be consistent with the bumper-sticker politics of our time – who can be opposed to personal responsibility? Doesn’t virtually everything, including our tort system, need reform?
There is one thing that cannot be doubted: there is no way that calling for personal responsibility is consistent with making it more difficult to patients to pursue malpractice cases. That this system is already tilted in favor of health care providers is demonstrated by a decreasing number of claims, fewer trials, and reduced malpractice premiums.
I fear that alternative three is the answer. The candidate’s website says he wants caps on damages in malpractice cases, a notion completely inconsistent with a goal of personal responsibility for health care providers. Mr. Haslam’s position apparently is that people should be responsible for their actions, but if they are health care providers and their actions kill or injure another then their liability must be limited to an artificial cap.
If you are or will be a patient you need to consider Mr. Haslam’s position as you make the decision on who you will vote for as our next governor. I respectfully suggest that health care providers think carefully about this issue as well. To be sure, you are a provider five days a week, but you are a patient or potential patient seven days a week.