Charles Krauthammer's Washington Post column from a couple of days ago
purports to wield the sword that will cut the Gordian Knot that is our healthcare conundrum. The second part of his solution, eliminating the income tax break provided to employers and employees for medical benefits provided through work, isn't a bad idea but it is a far cry from solving the problems of our current system. But it's the first part of his solution that got my attention.
Krauthammer claims that reforming medical malpractice will eliminate the supposed scourge of defensive medicine that is plaguing our country. Krauthammer, who is a physician himself, wants to do away with our current, fault based medical malpractice system and substitute a new "social pool" that will be used to compensate victims of medical malpractice. A panel of medical experts will be substituted for a jury as the deciders of whether medical malpractice has occurred. Krauthammer asserts this will eliminate the "lawsuit lottery" that he claims trial lawyers make their living playing. They will just be cut right out of the picture. To avoid the moral hazard that would accompany eliminating negative consequences for medical malpractice he proposes that negligent physicians will have to forfeit their licences.
I have questions. What about the Seventh Amendment to the Bill of Rights? You know, the one that says that every person with a civil suit with an amount in question over $20 gets the right to trial by jury. Do we just sort of set that aside? In fact, it's really not a close call that of the original items in the Bill of Rights, the Seventh Amendment right to trial by jury has been, by far, the most eroded and bypassed. I would expect a conservative, strict Constitutional constructionist like Krauthammer to at least mention that. In any event, that seems to me, if nothing else, a formidable political, legal and practical barrier to his proposal.
Next, is Dr. Krauthammer aware that the Institute of Medicine has stated
medical malpractice killls more people per year in this country than car accidents? No? That's not to mention how many people are seriously injured through medical malpractice. In fact, very few of those individuals or their families ever recover anything by way of compensation in medical malpractice claims. How do we deal with the greatly increased costs associated with compensating for injuries and death of all people injured or killed due to medical malpractice? Is a "relatively small tax on health insurance premiums," as Dr. Krauthammer says, really going to cover that expense? I doubt it. Does anyone really even know how much such a compensation system would cost? Krauthammer makes no attempt to provide an answer to that. He just assumes it won't be much but unless you grossly undercompensate medical malpractice victims, I'm confident he's wrong.
The best way to deal with medical malpractice is to take meaningful steps to reduce its occurrence. That means training physicians more effectively.
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