Tort Reform Fools' Gold

"Whats in it for me?" seems the rallying cry of the stakeholders involved in the discussion over universal health care in the United States. The American Medical Association has made it clear that its price for universal health care in the United States is tort reform. And, if major health care reform should pass it is very likely that some sort of tort reform will pass. But, while this is a long sought after dream of physicians, one would be mistaken to believe that it will be a gold mine of health care spending savings.

Tort expenses represent a small percentage health care costs. Physician groups claim that the amount in claims is actually a small part of the problem. They claim that fear of litigation require them to preform unnecessary procedures and tests to reduce liability.

Physician's fear of being sued is obviously quite real. The human body is almost infinitely complex. Random things often happen. Further the health care system itself is incredibly complex and has many qualities which introduce systemic risk to the patient which are largely beyond the physicians control. Further the nature of the insurance market distributes the cost of litigation mostly on the risk associated with a procedure rather than on the quality of work by the physician. Just as you will be charged more for health insurance if, through no fault of your own you happen to be a female of child bearing age a physician is charged more if they perform procedures with a higher risk of catastrophic failure. Thus a obstetrician is charged more from her insurance company because the cost of a botched delivery can be catastrophic not because she is a bad physician. The physician therefor charges more to the insurance company for deliveries and the insurance company charges more to the lady buying health insurance on the possibility that she might get pregnant.

It is a frustrating system which provides very little incentive for good care. But remember the obstetrician pays more primarily because of the way that insurance companies and physicians decide to charge for risk throughout the health care system. Physicians could agree to share the risks equally and then vary insurance rates on the physician's performance rather than the risk inherent in their specialty.

However physicians chose to use a system which does not give strong incentives to good performance. Almost universally a bad physician in a low risk specialty pays far less than excellent Physician in a high risk specialty. By seeking to cap large awards Physicians may reduce insurance premiums for high risk specialties but may not reduce premiums at all in low risk specialties. Further, it will do nothing to place more incentives on quality care.

Thus physicians will have very little reason to change their "defensive medicine" habits -- if a large amount of health care spending is related to "defensive medicine." In fact there is very little reason to believe that expenses attributed to "defensive medicine" would disappear absent the threat of tortuous action.

Physicians may be bad patients. But they are even worse clients to their lawyers. We all have to take measures to reduce our liability at work. We may curse the frustration of it, but physicians often seem to believe that they are immune from the responsibilities associated with almost any business. They believe that it is somehow an intrusion for lawyers to intrude into their business and resent their advice. But, is a Physician's judgment actually superior to their attorney's.

The answer seems to be no. Certainly no for limiting the physician's liability. But also no for patient care. The last thing a lawyer would advise is to through every test and treatment under the sun at a problem. After all every test and treatment extends the physician's liability as well as possibly reducing it.

The uncomfortable truth about the supposed "defensive medicine" is that health care providers get paid for it. Are they doing test as a defense against being sued or are they doing tests to make more money? Unfortunately, as office staff will tell you, the greatest determiner of what tests and procedures are performed is what the insurance company will pay for.

The burden of proof is on the physicians to show that money spent on "defensive medicine" is a reasonable response to liability in the tort system. A reduction in punitive damages for example would provide no change whatsoever in the calculus of whether to perform defensive medicine in specialties in which that would provide little reduction in liability and no reduction in premiums.

Since it is far from clear that defensive medicine is the logical response to current liability, it is very difficult to see how it would be less logical after tort "reform." It is even less likely that tests and treatments will be substantially reduced.

So, see tort reform as what is, a probably necessary concession to the AMA. It is unlikely to be a source of health care savings.

What's the Mission

Commentary's current catchphrase is "It's not a just a Magazine it's a mission. But what is that mission exactly? There has been much talk lately about the "Israel lobby" and it's nefarious influence on American policies. There may or may not be an "Israel lobby" but a quick read of Commentary makes it clear that if such a thing does exist it Commentary is certainly not one of its organs.

The recent posting "Does Will Prefer a Nuclear Iran to a Neocon Washington?" by Jonathan Tobin is a case in point. The article basically makes two points. First that the neocons where right about Iraq and they are right about Iran as well.

I will deal with the two arguments in reverse order. The argument that Iran is an existential threat to the United States is patently ludicrous. Iran does not have a nuclear bomb. Iran doesn't have missiles which can reach the United States. And even if they were to take out an American city, this would not put the United States in mortal danger. Iran might in a couple of years pose an existential threat to Israel.

But even this would almost certainly not truly manifest for years probably decades. Iran has been nothing if not a logical operator. Iran's suppression of the pro-democracy demonstrators was quite restrained. The Chinese who do have nuclear weapons ready to launch capable of taking out several US cities were more violent in putting down the Muslim demonstrators in it's western provinces. But one hardly hears about China on Commentary. Iran is clearly not suicidal. The chances of a first strike on Israel, which probably has hundreds of nuclear weapons is incredibly remote.

The real fear that Israeli partisans have is that with a nuclear deterrent Iran could through the support of terrorism in Lebanon and Israel grind Israel down to the point where it would be overwhelmed with demographic disasters posed by the occupied territories, and the recent decision to throw away the forty years of remarkable loyalty of Arab Israeli citizens over a few peaceful demonstrations. The inflation of the Iranian threat seems to be a pro-Israel position. But it must be remembered that the real threat to Israel is the demographic pressures of Arabs in Israel and in the occupied territories. Iran could only facilitate the crises which is almost entirely of Israel's own making.

But the real indication that Mr. Tobin's heart is not with Israel is the first argument. One could make an argument that Iraq has been a success for the United States, though there are great difficulties. However, it is almost impossible to make the argument that the Iraq war has been a success for Israel. The destruction of the Hussein government allowed Iran to greatly expand its power in the peninsula. The ability of Iran to pose a real threat to Israel though terrorism is almost entirely the result of the Iraq war. A true Israeli partisan could not call the Iraq war a success without qualifying that statement with an acknowledgment of the war's cost to Israel's strategic decision.

What then is the mission? If Commentary is not primarily advancing America's interest and also not primarily advancing Israel's interest, whose interest is advancing? One could argue that the magazine is advancing the interest of the Republican party. It is true that the articles are almost universally critical of the Democratic party and supportive of the Republican party and Jennifer Rubin does seem to envision herself as as Jewish Sarah Palin, but even this association misses the mark.

Deep down Commentary is a neocon magazine. And neocon's are their own true north their own mission. They are no more loyal to Israel than America or the Soviet Union. They are no more Jewish than Atheist than Jewish. They are loyal to capitalism no more than socialism no more than communism. Their only faith is in the sufficiency of their own human actions.