Some of us went to the beach for our August break. President Bush preferred to rake in the big campaign bucks while bashing trial lawyers for the health care crisis in America. Yep, not the high costs of prescription drugs, not the millions of families without health care -- the most important health care issue is those darn lawyers and pesky crippled children suing those poor doctors.
Rhetoric aside, though, there are legitimate concerns over rising medical malpractice insurance rates for doctors, as rising rates drive some doctors out of their specialties, especially in poorer areas where the customers don't pay enough to front the bills to the insurance companies. But as Public Citizen pointed out in a report this summer, insurance companies have been ratcheting up insurance not just for doctors but for everything from cars to homeowner insurance. Insurance companies lost big in the stock market meltdown and are now trying to recoup their losses from their premium holders.
Still, the whole medical malpractice issue can too easily be framed as a narrow debate between the evils of tort lawyers versus insurance company greed. But the source and solution for the problem goes to the heart of broader problems in the US health care system. One of the most bizarre realities of US medicine is that we end up fighting over the standard of decent care for our citizens more in the courtroom than in the legislature, a byproduct of the wildly unequal health care available to different members of our society.
Poor Care, More Lawsuits: The US spends far more of its Gross Domestic Product on health care (13% in 2000 and rising) than any other nation, yet it delivers more unequal care with greater gaps and poorer health-care results for the overall population. If you compare us just to other developed nations in Europe or Japan, you'll see the US comes in far behind on most infant mortality and life expectancy numbers, even though those countries spend less on health care.
So how does this relate to medical malpractice? Rather simply -- while health care is uneven and unequal in the US, there is a lot of very good care going along with the very poor health care. At the simplest level, when doctors are skimping on health care for those with limited health insurance, they inevitably are creating the conditions for lawsuits.
But more deeply, the very unevenness of health care in the United States means that we have no consensus on what constitutes reasonable care by a doctor. Some doctors do a wide range of tests for their richer patients, so others who suffer because their doctors failed to do similar tests demand in court that they be compensated for that failure. Given the inequality in our health care system, it seems impossible for any other result to occur.
Conservatives bash lawsuits but they don't face the fact that they are the inevitable result of privatized medical care. In a market system, a promise to provide medical care is a contract and when that promise is breached, people and companies go to the courts to determine how much that promise was worth. That's true in business-to-business contracts and true in our medical system.
I'm a bit anomalous as a progressive, especially as a progressive lawyer, in not being particularly enamored of the dominance of courts in so many decisions in our society. In reality, though, it should be progressives demanding that we get disputes over medical care out of the courts and into a democratic forum. But merely enacting "tort reform" -- i.e. punishing victims by artificially limiting their court awards &endash; would just encourage doctors to keep shortchanging the health care of the poor. Bush is half right when he argues that medical malpractice lawsuits are often an arbitrary way to determine the standard of decent care in our society. But enacting even more arbitrary caps on recovery just piles onto the problem.
Solving the Problem: The real solution is to enact universal health care access, which would inevitably solve much of the malpractice lawsuit problem at the same time. Better care and decent funding just on its own would end some of the uneven care that breeds malpractice lawsuits.
The other advantage of universal health care is that it creates a clear standard of care. What government pays for becomes the reasonable standard of care, a standard that can be debated democratically at appropriations time for the health care budget rather than haggled over erratically in the courts. It is no coincidence that European countries deliver better health care at a lower cost without as many lawsuits -- it's all part of the related advantages of universal health care.
While Bush and company don't like the arbitrariness of malpractice lawsuits, they have been fighting the real solution of clear government standards and funding just as hard. Progressives need to call them on this inconsistency and, if conservatives are going to harp on the issue, we need to emphasize why make universal health care is the solution.
Nathan Newman is a longtime union and community activist, is a national vice president of the National Lawyers Guild, and author of Net Loss [Penn State Press] on inequality in the Internet economy. Email nathan@newman.org or see www.nathannewman.org.