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Should health care reform include tort reform?

By Scott Tibbs, February 10, 2010

One of the areas where I split with the Republican Party is tort reform. Republicans have argued that health care reform needs to include tort reform in order to keep costs down. Republicans have been arguing for tort reform apart from the health care debate for years, to cut down on "frivolous" lawsuits.

The most obvious problem a conservative should have with tort reform is efforts to have it implemented at the federal level. We conservatives have been arguing for more state control and less federal power for decades, and that was one of the goals of the Republican Congress elected in 1994. (They slid away from that later, obviously.)

Tort reform at the federal level is a direct strike against that principle. The federal government should not be setting the rules under which people seek damages from each other and from corporations within a state. There has to be some sort of federal involvement if a dispute crosses state lines as it often does in this economy, but disputes that happen entirely within a state should be resolved under that state's laws, not under a universal set of rules established by the federal government. I'm disappointed that so many conservatives do not see this as anti-conservative.

Furthermore, while there are frivolous lawsuits out there, it is important to realize that personal injury lawyers serve a valuable purpose in society. When someone causes harm to someone else, they should be required to compensate the injured party. It's also important to note that we often do not have all of the information about allegedly "frivolous" lawsuits. One of the most famous examples of a "frivolous" lawsuit, the McDonald's "hot coffee" lawsuit, was justified because the product itself was defective due to being dangerously hot.

Probably the most egregious example of corporate corruption and the most often-cited example of the value of trial lawyers was the infamous Ford Pinto case, where Ford Motor Company willingly engaged in mass murder. The Ford Pinto had a design flaw that would result in the rupture of the gas tank in a rear-end collision, causing the car to explode into flames if hit from behind.

A cost-benefit analysis by Ford showed that the cost of settling lawsuits was less than redesigning the automobile to eliminate this safety hazard. (For more, see Time.com, MotherJones.com, CNNMoney.com and ahrq.gov.) Ford was forced to pay a huge amount in punitive damages once this scandal was revealed. That wasn't nearly enough, unfortunately. Ford intentionally marketed a deadly product and the people behind this shameful decision should have been put to death for the crime of premeditated murder.

This is not to say that frivolous lawsuits do not exist. They do, and many have been documented. Generally, however, an attorney worth his salt will not take a truly frivolous lawsuit. Some attorneys do not charge clients a fee unless they collect a settlement, so it would be foolish to waste time and money on a baseless claim. Trial lawyers may be an easy populist target for politicians, but they serve a necessary purpose in our legal system to gain compensation for those who have been unjustly harmed through negligence or willful recklessness.