Pretty much everything is this way. We get mad that politicians don't govern based on what the experts say, but the fact is that you can find an expert to say anything, and what is "obvious" or even "true" depends on what circles you travel in. Moreover, just as in this situation, a lot of the people who are in a position to really understand how a policy change affects the system (in this case, insurance companies and lawyers) also have a personal interest one way or another.
I'm personally quite wary of tort reform. Not because I'm a lawyer (I'm a lawyer because I'm the kind of person who is wary of tort reform!) They promised us the same thing about binding arbitration. It would get those overpriced lawyers out of the equation and let businesses just hash it out civilly with each other, they said. And look what happened--binding arbitration basically just became a way for big companies to force consumers to give up their right to sue. Companies rarely use it amongst themselves:
"When it comes to contracts with each other, corporations are far less likely to use arbitration clauses than they are in contracts with consumers. This was the finding of a December 2007 study by Cornell Law Professors Theodore Eisenberg and Emily Sherwin and Professor Geoffrey P. Miller of NYU Law School, who examined contracts from 21 financial and telecommunications companies. The data showed mandatory arbitration clauses in over 75 percent of consumer agreements but in less than 10 percent of their negotiated non-consumer, non-employment contracts." (http://centerjd.org/content/fact-sheet-mandatory-binding-arb...). In other words, corporations reserve their right to litigate. Arbitration is for the poors.
I don't really see tort reform playing out any other way, unfortunately. I wouldn't be opposed to a more regulatory or administrative scheme, but damages caps are just a way of shifting costs from the medical system (not just sympathetic doctors, but billion dollar hospitals and insurance companies) onto the people they injure. Indeed, of all the various reforms, damages caps are the worst possible one. By and large, if a jury awards someone a couple of million dollars, it's because the doctor really fucked up. Damages caps under compensate plaintiffs in the precise situations in which they are the most likely to be in the right! If we're worried about shakedowns, a far more sensible approach would be a "damages threshold." If you can't show you suffered more than say $10,000 of damages, nobody pays up. That would deter a lot more of the people just looking to make a quick buck.
Another option would be just giving some fraction of punitive damages to the state.
When lay people are shocked by judgment amounts, usually its because the judge was using some sort of damage amount that would actually make the offending institution change its behavior. But you could provide basic damages to make the patient whole plus lawyers fees to the patient, then allow the judge to reserve some portion of punitives for the state, and just label it something like a regulatory fine. People understand that fines can be high, they don't understand when people appear to get a windfall well beyond what might make them whole.
(OTOH, maybe if someone goes through having a scalpal left in them, they deserve whatever "windfall" they can get.)
I'm personally quite wary of tort reform. Not because I'm a lawyer (I'm a lawyer because I'm the kind of person who is wary of tort reform!) They promised us the same thing about binding arbitration. It would get those overpriced lawyers out of the equation and let businesses just hash it out civilly with each other, they said. And look what happened--binding arbitration basically just became a way for big companies to force consumers to give up their right to sue. Companies rarely use it amongst themselves:
"When it comes to contracts with each other, corporations are far less likely to use arbitration clauses than they are in contracts with consumers. This was the finding of a December 2007 study by Cornell Law Professors Theodore Eisenberg and Emily Sherwin and Professor Geoffrey P. Miller of NYU Law School, who examined contracts from 21 financial and telecommunications companies. The data showed mandatory arbitration clauses in over 75 percent of consumer agreements but in less than 10 percent of their negotiated non-consumer, non-employment contracts." (http://centerjd.org/content/fact-sheet-mandatory-binding-arb...). In other words, corporations reserve their right to litigate. Arbitration is for the poors.
I don't really see tort reform playing out any other way, unfortunately. I wouldn't be opposed to a more regulatory or administrative scheme, but damages caps are just a way of shifting costs from the medical system (not just sympathetic doctors, but billion dollar hospitals and insurance companies) onto the people they injure. Indeed, of all the various reforms, damages caps are the worst possible one. By and large, if a jury awards someone a couple of million dollars, it's because the doctor really fucked up. Damages caps under compensate plaintiffs in the precise situations in which they are the most likely to be in the right! If we're worried about shakedowns, a far more sensible approach would be a "damages threshold." If you can't show you suffered more than say $10,000 of damages, nobody pays up. That would deter a lot more of the people just looking to make a quick buck.