Our little discussion has proceeded in a reasonably cautious spirit, without attempts to rush toward premature closure. In that same spirit, I’ll offer just two brief and tentative thoughts, and then bid you au revoir.

(1) I don’t mean to make too much of the language issue, but I do think it’s near the center of a broader concern that your proposal will need to address, if it’s to go much of anywhere. You want to insulate providers from suits over “reasonable” treatment choices. That may be useful shorthand for identifying, to persons already in broad sympathy with your program, the types of medical decision that you’d like to see immunized. To draw an analogy with Justice Stewart’s famous “Casablanca test” for pornography, your constituency presumably knows a reasonable treatment decision when it sees one. But if immunity for “reasonable” choices really worked as an operational definition, capable of consensual application within the judicial system, then the existing system would closely approximate your proposed reform, because it too conditions liability on an unreasonable departure from the standard of care. To implement something different, you’ll need to specify the difference somehow. Seemingly the word “reasonable,” as the current term of legal art is understood, would have to part company with the liability standard. Either that, or else some new meaning would have to be given to it, if not through “top-down” safe harbors then via some other means. That’s a practical issue as well as a political one.

(2) One reason it’s a difficult political issue, I think, is that both camps in the medical malpractice debate have done a lot to earn the polity’s mistrust. If proponents of medical malpractice “reform” wanted advice from the likes of me, I’d tell them that when public policy debate is characterized on both sides by exaggerated claims and overheated rhetoric, the resulting public skepticism can operate asymmetrically in favor of the status quo. I’d also tell them to dig out a copy of Revolution and listen closely to the lyrics. If “reformers” begin to acknowledge more conspicuously that prevention and compensation are also issues calling for thoughtful attention, maybe they’ll begin to win over more centrists. But if they go carrying pictures of Chairman Mao...

Well, you're no Maoist, Ted, and it has been a pleasure talking this through with you. I’ve learned a couple of things, and I’ll follow your idea’s progress and development with interest. Thanks for treating me in such gentlemanly fashion despite my irritatingly hidebound mindset. My thanks, as well, to Point of Law, for giving me the opportunity to chat with you in this space. Let’s do it again.