Peter, my apologies for the delay in posting.

The idea of a top-down "safe harbor" for medical malpractice is one that's been discussed elsewhere. I worry that such centralized planning, implemented on a widespread basis, might ossify medicine and make innovation difficult or impossible. It seems to me that it can only help on the margins, in some narrow areas, though the savings and improvement in health care might well be significant. At the level of implementation, however, the questions become one of medicine, rather than law, and I defer to the doctors on the ultimate wisdom of the scope of such proposals, and I haven't seen enough on the pro or con side to know whether they'd be efficacious or worth the candle.

You raise a good point about the political feasibility of a wholesale change in medical malpractice law. The trial bar is a powerful interest group that is successfully blocking smaller incremental improvements. But, as we discuss public policy, I'd rather start with what we want an ideal system to look like before we resort to what the second-best measures are in the universe of the feasible. If everything came down to popularity, you and I would have to shrug our shoulders and replace evolutionary biology with the study of astrology and angels in public schools.

That said, it's not clear that I'm proposing anything that couldn't be passed in a generation, especially as more data comes down the pike about the costs and unworkability of the status quo. Tax simplification and airline deregulation must have looked politically impossible once upon a time.

Would "No doctor shall be held liable for his or her good-faith reasonable discretionary decisions in the practice of medicine" really be so troubling to the average voter? I think that appeals to people's fundamental sense of fairness. When I see ATLA and its Orwellian successors complain about medical malpractice reform, the examples they use of horror stories—body parts erroneously amputated and so on—wouldn't fall within this exception.

And I disagree with you that such language would require a top-down codification before it could be imposed. We don't need top-down codification in the business judgment context or for immunity for discretionary governmental decisions. The language I propose would simplify medical malpractice cases considerably. Early summary judgment would be possible in many a case, much as it is in the business judgment context, and the change in the legal landscape would change the cases that are brought.

There's a danger any reform not well implemented will be "leaky" through the efforts of creative attorneys or recalcitrant judges, so I don't pretend that this language is more than a first cut that could be improved. But we have time to perfect that between this initial discussion and the point when the political process is ready to consider more creative solutions.