“So the answer here, at least in part, is Tort Reform and Loser Pays.”
I got no love for the insurance companies, drug companies or the doctors for that matter, but any plan that does not address tort reform is not a serious health care reform plan IMHO. I don’t know about “Loser Pays” but a cap on damages is very doable.
Most malpractice suits don’t go anywhere or lose or get “settled” because it costs less to settle for the insurer than to win a court case. It is cheap enough to sue that it is worth many frivolous suits to score on one that may, itself, be actually frivolous. Loser Pays changes that dynamic and would induce insurers to fight cases where they can win. Most cases would not be brought in the first place if the attorney deems them not cost effective. If he has to pay the defendant’s costs in a losing case he will be less eager to proceed. In the old days judges threw out frivolous cases and it was not so huge a problem. In these days of Critical Legal Studies being a required course in law schools that judges have all graduated from, almost no case is deemed “frivolous” if it can be (mis)used to redress some perceived social injustice. Loser pays is a change of the system and is not amenable to fiddling. Caps is merely an adjustment and with caps there will be constant legislation and litigation to raise the caps. Caps does not affress the concept of the Courts as primarily a Lottery for Lawyers.