Medical Malpractice Caps, David Petraeus, Abraham Lincoln, and Martin Luther King: Watch Me Strain to Relate Them All Together to Close Out 2008

The Daily Herald in Chicago published an editorial yesterday that urges the Illinois Supreme Court to overturn the Illinois cap on non-economic damages in medical malpractice cases. The article, written by the President on the Illinois Trial Lawyers Association (I guess they have not gotten the Association for Justice memo), does not cover any fresh ground opposing tort reform.

In fact, it highlights the one argument in opposing tort reform that I reject: that the cap does not lower malpractice premiums. While I hate caps on non-economic damages, I’m sorry, I majored in economics. (Okay, finance, but you get the point.) You cannot assert medical malpractice rates are not impacted by less exposure. Insurance rates are a function of exposure. It’s the first thing an actuary will punch into that computer. That rates do not immediately rise or fall after malpractice caps rise or fall does not negate this causal relationship.

General David Petraeus once said that what “sets us apart from our enemies in this fight… is how we behave. In everything we do, we must observe the standards and values that dictate that we treat noncombatants and detainees with dignity and respect.” What does this quote have to do with the price of copper in Kazakhstan? Well, look at the comments from medical malpractice tort reform advocates in the Daily Herald article. Start with the first one where the author offers this insightful question: “If one person’s family successfully wins, should it become a citable precident (sic) making future payouts for similar cases automatic?” As if this issue has ever been raised by intelligent people discussing the topic. Keep reading the comments, the level of insanity from the tort reform advocates stays—with a few exceptions—relatively constant. I’m not saying there are not intelligent arguments for medical malpractice tort reform. But none of them are being made in these comments.

All of this brings me, belatedly, to my point: in the long run, you do not win the battle of public opinion by making arguments that have some facial appeal but are false under closer scrutiny. That some tort reform advocates believe otherwise makes sense because proponents of tort reform believe juries—which comprises all of us—should not be entrusted with decision making. But the truth will rise eventually and suppressing it hurts the cause in the long run.

There is something in this universe that justifies Carlyle in saying, “No lie can live forever.” There is something in this universe which justifies William Cullen Bryant saying, “Truth crushed to earth will rise again.”

I have been trying to include this Martin Luther King, Jr. quote all year. Never had a chance. But reading it over, it sounds a little too self-righteous in this context. For this issue and every issue addressed on the Maryland Injury Law Center on which reasonable people disagree, I’m going with Abraham Lincoln:

Let us not pray that God is on our side but let us pray that we are on God’s side.

I think I’m right on this and the other opinions I express on this blog. But you know what? I could be dead wrong. I hope God clears it all up for us one day. In the meantime, if you disagree with me, I’m still grateful you have read this far. Let’s continue this dialogue in 2009. If you have a different opinion, I would love to hear from you. If you have been a regular reader in 2008, I am appreciative that you think enough of this blog to give your precious time to it. Thanks. I wish you a fantastic 2009!

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