Malpractice reform is a frequent debate in American Politics and one of the primary focuses of tort reform movements in general. Many states have instituted various forms of malpractice tort reform and it was a prominent issue in the 2000 and 2004 Presidential elections. Partisan considerations play an important role in this debate as trial lawyers are seen as an important Democratic constituency and calls for malpractice tort reform generally originate with Republican candidates and officials. Health care reform re-instigated a wide ranging debate about malpractice reform and in his first State of the Union address, President Obama offered malpractice reform as an area for compromise with Republicans.
What is the best approach to malpractice tort reform, consistent with the nature and purposes of torts as we have studied them in class so far.
1. Hard caps on damage awards for pain and suffering (the most commonly enacted reform on the state level, first instituted in some states as long ago at the 1970s)?
2. Focus on increasing patient safety by creating something like an Office of Patient Safety and Health Care Quality? (Some projects related to this proposal were in the stimulus bill and in the Affordable Care Act)
3. Create health care courts staffed by specialized judges deciding cases without juries?
(there are some other options as well)
Is this solely a political or partisan issue, or can empirical study of the health care system by social scientists, doctors, and public health experts help us to determine the best approach to promote the traditional goals of torts, or even entirely different goals that we might prefer to those of the traditional tort system?