Hi, Ted. Always a pleasure.

Before greeting you at further length, I want to thank Point of Law for inviting me to participate in this discussion. I feel honored and flattered, even if I do question PoL’s wisdom in selecting me.

There have been previous discussions in this space, you see, on topics about which I might claim to be pretty knowledgeable. But for me, medical malpractice litigation is entirely a spectator sport. In twenty years of litigation practice, working both sides of the aisle, I’ve never once been involved in a medical malpractice case. Nor am I especially steeped in the policy literature on the subject. So I won’t have a lot of facts and figures to reel off, nor a lot of vignettes drawn from personal experience.

If I can contribute anything at all to this discussion, I’m afraid it will probably be my conservative streak. Our tort regime has many flaws. So does our jury system and our adversary model. But all three have very respectable historical pedigrees, and they’ve done a better job at resolving civil disputes than most of the alternatives people have tried. So when somebody comes along and wants to introduce new flora and fauna into the legal ecology . . . well, I just want to make sure everybody has thought the thing through. Call me stodgy.

By the way, I’m glad its you, Ted, with whom I’m having this exchange, because you’re a reasonably sane fellow - for a tort-reform proponent, anyway. Much of the public discourse about medical malpractice litigation is ludicrously oversimplified and overheated. Within the political arena, especially, the whole debate seems irredeemably corrupt, utterly driven by mercenary motives and unseemly agendas, dominated by propagandistic rhetoric. You, by contrast, have always tried, in my experience, to hold and defend your views on rational policy grounds – an approach I respect, even where our takes on policy may differ. You also keep the lawyer-baiting to a minimum, which I appreciate.

My throat having been cleared, what can we now discuss? Your opening post devotes substantial space to outlining problems that you see as standing in need of some solution. With much of what you say about the problems, I see no basis to disagree. There is an unacceptable level of randomness in outcomes under our current malpractice regime (just as there is, perhaps, in tort litigation more generally). Not only should that awaken our sense of injustice; it should also inspire practical concern. Even a comparatively small number of “win the lottery” verdicts may indeed have a disproportionate effect on insurance premiums (and yes, I do believe malpractice premiums to be sensitive to payouts, and the risk of payouts, in the long run, fluctuate wildly though those premiums also may in response to insurance companies’ shorter-run investment misfortunes). Those premiums, and the threat of liability, exert, in turn, a negative effect on the supply curve for medical services. The extent of that effect is an empirical question that you and I can leave to one side, perhaps, if I concede its reality and significance. Insurance costs have driven some providers from practice, resulting in underserved populations. Fear of liability leads many remaining providers to order expensive tests and procedures they otherwise wouldn’t, driving up patient costs from what they would otherwise be. Those tests, meanwhile, aren’t risk-free themselves.

The question might be why on earth, in the face of all these familiar problems, did we ever lose our minds for long enough to have a malpractice liability regime in the first place? For the same reasons, I take it, that we have tort liability in other contexts - even though tort liability often creates a similar set of problems in those other contexts, as part of the price for less visible benefits that the tort system also confers. In a nutshell, we have tort liability because even well-meaning actors can behave negligently and cause injury. Given the corporate, for-profit structure of the modern health-care industry, maybe we needn’t even assume the tortfeasor to be especially well-meaning. Dare I hypothesize that institutional providers are systematically tempted to skimp on costs, much to the frustration and alarm of the dedicated professionals they employ? I’d better not. I don’t know the literature as well as you, and if you were to suffer a momentary lapse in your customary civility, you’d surely go to town on me. But we both know this much: someone will end up bearing the cost of the resulting injuries, even if those costs are left where the injury falls (that is, with the victim). If those costs can be shifted to the tortfeasor in reasonably fair and predictable ways (“reasonably fair and predictable” being the rub, of course), that will tend to deter negligence, while also compensating the injured - results most people would see as both beneficial and just. Meanwhile, imposing those costs on the enterprise makes some sense, if the enterprise is in a better position to spread the costs, which often would be catastrophic, if left to be born by an individual.

When does it make sense, despite such considerations, to take some class of activity out of the standard negligence regime? Well, different grounds have been offered for different exceptions, some more persuasive than others. You mention the business judgment rule, various governmental immunities, and a kind of de facto immunity you believe attorneys to enjoy. Almost all of those exceptions are controversial, to one degree or another – controversial enough, in my view, that they should not be taken as the norm, from which departures would then have to be justified. There are probably compelling reasons for judicial and witness immunity, and as we’ve discussed, there may be reasonable grounds for the business judgment rule. Most of your other examples are more like anomalies that cling to their doctrinal perches by an arguably tenuous logical grip. In particular, if PoL wants me to defend special liability breaks for attorneys, they’ve come to the wrong guy. There’s a lot of bad lawyering out there, and not enough deterrence.

My question, then, would be: are there good arguments for an exception, in the case of medical malpractice? It’s all very well and good, Ted, for you to “suspect” that the quality of care would not suffer. But to a conservative like me, your “suspicion” on that front is not enough to justify what sounds like dangerous and ill-considered experimentation. (Neither is your notion that the experiment could provide interesting data, as a typhoid epidemic also might.) What if your suspicion proved mistaken? What if the problem actually does extend beyond the rhetorical caricatures about inebriated surgeons who amputate the wrong limb? Theory predicts, does it not, that the quality of care should deteriorate across the board, as disincentives to negligence are reduced or eliminated? Might prudence not suggest we first consider other, less extreme measures, short of de facto immunity, to tackle the randomness problem? Something a little more creative, maybe, and a little fairer, than miserly damage caps? And if we do that, by the way, will we also be tackling, with equal zeal and enthusiasm, the problem of patients who are harmed by inadequate care but who currently never find their way to the tort system, or any other remedy, at all? (That’s not a rhetorical bogeyman; that’s a real population, and it may dwarf the class of all current malpractice plaintiffs, if I’m remembering the literature correctly.)

I should add, in the interest of full disclosure, that if you should chance to persuade me (as is perhaps unlikely) that no measures short of de facto immunity can work, I’ll be wanting to know what alternative steps we are then going to take, if any, to protect patients from medical misadventure? Are we going to have free disability insurance for everybody? A national health care plan? I could maybe go for those. Let’s talk. Maybe we can get somewhere.