Tort reform is a result, not a cause

The Reality-Based Community:

If the only way to pay for the treatment an accident victim needs and to replace the income he or she loses is to find a responsible party and make that party pay, then “tort reform” means throwing accident victims on the scrap-heap. But if those problems are covered by social insurance, then the remaining function of the tort system — deterring risky behavior — can be handled by regulation instead. American “tort reform” advocates who point to Europe as an example are dishonest insofar as they omit the fact that Europe has a better social safety net and tighter safety regulations to go along with its weak tort system.

There’s a cascade effect that can also be important here. From the (possible) tortfeasor’s point of view, in the US saying something like “I’m sorry, I shouldn’t have done that” exposes them and their employer/friends/family/associates to massive personal liability and inconvenience. At best, an increase in insurance rates, at worst, lost job, crushing debts, cascading disaster. That means that information about injury and damage-causing errors is slow to propagate, so that it’s harder to deter or avoid risky behavior. When my father died as a proximate result of a medical error, for example, the (large teaching) hospital’s response was so full of CYA that it was hard to believe their assurances that procedures had been changed so that the-thing-which-didn’t-happen-and-wasn’t-an-error-if-it-did would never happen again.

In some cases this kind of guilty secrecy even means more lawsuits, because people are far more likely to sue possible tortfeasors who act like close-mouthed jerks. It’s payback, and discovery is the only way to find out what actually happened. (Some states has passed laws making apologies inadmissible as evidence, but not all, and the news hasn’t exactly gotten around.)

In the short term, of course, a social safety net and measures to deter risky behavior might actually reduce GDP, because you’d have so much less makework flowing through the system. So obviously we can’t have that…


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