We can only “fix” the medical malpractice “problem” if we fix all the problems we use medical malpractice to address. Universal coverage and medical malpractice cannot be separated from one another.

Walter Olson asks what we’re getting from our medical malpractice system — with “jury trials, contingency fees, lack of loser-pays, extensive lawyer-driven discovery” — that Canada, at 10% of the cost for its medical malpractice system does not. It’s only part of the question. Olson quotes Richard Epstein, who states “American judges frequently let juries decide whether honest mistakes are negligent. Judges in other nations are less likely to do so. American courts commonly think it proper for juries to infer medical negligence from the mere occurrence of a serious injury. European judges usually will not.”

Why is this going on? Is it just madness? Of course not. What Epstein and Olson ignore is that patients in Europe and Canada have national health insurance that will pay for the costs of medical care necessitated by inevitable — even if honest and non-negligent — bad outcomes that result from medical malpractice.

We can’t just “fix” the malpractice “problem” unless we fix the problem of being sure patients who suffer bad medical outcomes (a risk we’re all exposed to) being unable to pay for the care required by those outcomes. Why does Canada only spend 10% what the U.S. does on malpractice? Because Canada has national health insurance to pay for that care.

It worked for businesses with workers’ comp. Why not a no-fault liability system to pay for medical care and other consequential financial loss flowing from any bad medical outcome?