Can Congress constitutionally require individuals to purchase health insurance? It seems the Founding Fathers assumed so.

Rick Ungar suggests that believing our Founding Fathers would not have approved of requiring individuals purchasing health insurance is belied by what Congress did just twelve years after the Constitution was adopted:

In July of 1798, Congress passed – and President John Adams signed – “An Act for the Relief of Sick and Disabled Seamen.” The law authorized the creation of a government operated marine hospital service and mandated that privately employed sailors be required to purchase health care insurance.

Keep in mind that the 5th Congress did not really need to struggle over the intentions of the drafters of the Constitutions in creating this Act as many of its members were the drafters of the Constitution.And when the Bill came to the desk of President John Adams for signature, I think it’s safe to assume that the man in that chair had a pretty good grasp on what the framers had in mind. . . .

The law did a number of fascinating things.

First, it created the Marine Hospital Service, a series of hospitals built and operated by the federal government to treat injured and ailing privately employed sailors. This government provided healthcare service was to be paid for by a mandatory tax on the maritime sailors (a little more than 1% of a sailor’s wages), the same to be withheld from a sailor’s pay and turned over to the government by the ship’s owner. The payment of this tax for health care was not optional. If a sailor wanted to work, he had to pay up.

Law can actually solve real problems.

1. Adult children may remain as dependents on their parents’ policy until their 27th birthday.

2. Children under age 19 may not be excluded for pre-existing conditions.

3. No more lifetime or annual caps on coverage.

4. Free preventative care for all.

5. Adults with pre-existing conditions may buy into a national high-risk pool until the exchanges come online. While these will not be cheap, they’re still better than total exclusion and get some benefit from a wider pool of insureds.

6. Small businesses will be entitled to a tax credit for 2009 and 2010, which could be as much as 50% of what they pay for employees’ health insurance.

7. The “donut hole” closes for Medicare patients, making prescription medications more affordable for seniors.

8. Requirement that all insurers must post their balance sheets on the Internet and fully disclose administrative costs, executive compensation packages, and benefit payments.

9. Authorizes early funding of community health centers in all 50 states (Bernie Sanders’ amendment). Community health centers provide primary, dental and vision services to people in the community, based on a sliding scale for payment according to ability to pay.

10. No more rescissions. Effective immediately, you can’t lose your insurance because you get sick.

True innovation in health care: no-fault insurance for bad medical outcomes.

We would make genuine and profound progress in “fixing” our health care system if we replaced the existing malpractice system with (1) no-fault insurance to compensate patients for the long-term medical and personal costs of bad medical outcomes and (2) an effective mechanism by which the medical profession policed the quality of the care provided by its members.

One political war that never seems to wane is over the medical malpractice system. On the one hand there are the doctors, the insurance companies, and right-wingers screaming that it is medical malpractice that is bankrupting us; on the other, there are the malpractice lawyers and the rest of us who want protection against the risk of suffering unexpectedly from medical treatment.

The critique of the malpractice system has a lot of validity — it’s a lottery in which those patients who have gone to the trouble of hiring lawyers under circumstances smelling sufficiently of medical negligence make out well and the rest of those injured by bad medical outcomes are left with nothing. As a result, too, doctors practice defensive medicine, driving up medical costs for all of us.

But that’s not the entire story. Our health insurance system is a failure, and patients who suffer bad medical outcomes often won’t have coverage sufficient to provide them the care required by the bad outcomes. The only alternative is to sue for malpractice, but the premise of malpractice is that there is no recovery unless the patient is able to prove the doctor was negligent.

Is it any wonder, then, that in a close case, given the choice between, on the one hand, compensating a badly injured patient from with money provided by an insurance company and, on the other, declaring the doctor to be without fault, a jury of human beings will tend to do the merciful thing and find the doctor acted negligently?

Doctors, of course, hate that question. They look at malpractice cases as judgments on their talents, not as tests of mercy. A jury that finds a doctor liable for malpractice has, in the doctor’s eyes, found the doctor to be a bad doctor. To the doctor on trial, The patient’s injuries –as opposed to the doctor’s efforts — are irrelevant.

The dilemma is obvious. First, bad medical outcomes are inevitable regardless of the adequacy of care. As a result, bad medical outcomes are risks we all face. Second, our existing insurance scheme does not spread this risk — rather, those who suffer bad medical outcomes and are not compensated by the malpractice system themselves bear all the costs of that risk.

Wouldn’t we be better off if everyone who suffered a bad medical outcome was compensated for the costs that arose out of that bad medical outcome regardless of the quality of the medical care? No one would be over-compensated, everyone would be fairly compensated, and the abilities of doctors wouldn’t be judged by juries of lay people who are motivated to disregard good judgment regarding those abilities by an entirely understandable and praiseworthy sense of human sympathy.

Such a scheme does raise one problem that the critics of the malpractice system also ignore — we really do enjoy a remarkably high standard of care in this country precisely because of the malpractice system. Doctors have never gone to the trouble of instituting an effective means of policing the quality of medical practice. To some degree they haven’t needed to do so because the risks posed by the malpractice system have forced insurance companies to take on that role. To replace the malpractice system with a no-fault insurance system, therefore, would require some genuine quality control imposed by the medical profession itself.

But if we simply gut the malpractice system and ignore the costs of bad medical outcomes and the need for some genuinely effective means of quality control, we would instead have the worst of all worlds.

The Framers embraced government provided services.

It never occurred to me that it would have to be repeated, much less come as a shock, that our country was founded on the assumption that the government would be the source of services needed by all. But Mark Brown, holder of the Newton D. Baker/Baker and Hostetler Chair at Capital University School of Law, fills us in on precisely this history, explaining that the Founding Fathers “believed that ‘essential’ services should be provided by government to the public at large for little or no remuneration. The costs of these services would be shared by the whole.” I’m not sure I agree with Brown’s characterization of this approach to governance as “socialism,” but I suppose he’s only deferring to the debased and a-historical way that term is being thrown around these days.

Tort law serves a lot of purposes tort reformers don’t recognize, though Robert Bork might have changed his mind.

The law tends to be rational, though the rationale behind it is not always apparent. But when you see people screaming about irrational laws, they’re often failing to see, if not ignoring, what the laws do accomplish.

You’ll hear again and again in connection with proposals to reform our system of health insurance that the real way to cut medical costs is to reform our tort system so that doctors don’t practice excessively expensive “defensive medicine.” Don’t believe it. I’m not saying that our malpractice system is perfect, but merely cutting back on malpractice cases and recoveries because of their impact on the practice of medicine ignores two important consequences of the malpractice system that we better be sure are provided in other ways before we significantly cut it back.

First, the malpractice system maintains the high quality of health care we do have. My dentist, who is German, told me she hates practicing dental surgery in Germany because the standard of care is so low. She’s always afraid the anaesthesiologists will kill the patients. In contrast, she explains that the standard of care is so good here precisely because of the fear of malpractice liability.

Second, judges and juries in some jurisdictions likely do err in favor of patients in finding doctors at fault. Why? Because our health insurance system is so inadequate and, regardless of the doctor’s wrongdoing, a patient who suffers a bad outcome from a medical procedure is going to need money to take care of the bad outcome. If it isn’t going to come from health insurance, why not from the doctor’s malpractice carrier?

The second problem would be better taken care of by instituting a no-fault compensation scheme for people who suffer bad outcomes from medical procedures. But doctors have always, for reasons I do not fathom, resisted such a system, while at the same time they cry, understandably, about the blame game played in malpractice cases.

There have to be better ways than the malpractice system to maintain our nation’s high standard of medical care. But until we’ve devised such a system, we ought to be cautious about dismantling the system that currently maintains that high standard.

The funny thing is that no one likes a personal injury lawyer until they need one. Robert Bork, of course, is a notorious conservative critic of our legal system who is often portrayed as a victim as a result of the rejection of his nomination by Ronald Reagan to the Supreme Court. Bork’s critique of the legal system has included an attack on the tort system, calling it, as Bloomberg News reported last month, an irrational and unpredictable process that subjects businesses to the kind of predation practiced by pirates:

In a 1995 opinion piece published in the Washington Times, Bork and Theodore Olson, who later became a top Justice Department official, criticized what they called the “expensive, capricious and unpredictable” civil justice system in the U.S.

“Today’s merchant enters the marketplace with trepidation — anticipating from the civil justice system the treatment that his ancestors experienced with the Barbary pirates,” they wrote.

But Bork recently sued the Yale Club of New York City, “claiming he tripped and fell because of the club’s negligence as he ascended a dais to give a speech.” His amended complaint alleges that “[w]hen it was his turn to deliver” a speech at the Yale Club, he “approached the dais. Because of the unreasonable height of the dais, without stairs or a handrail, Mr. Bork fell backwards as he attempted to mount the dais, striking his left leg on the side of the dais and striking his head on a heat register.” Among other defensess asserted by the Yale Club in its answer are that the risks of mounting the dais were “open and obvious” and that Bork has already been compensated (no doubt through his health insurance, which I bet is as good as it comes) for some or all of his economic loss.

Bork isn’t the first “hypocrite of tort reform,” nor will he be the last. But next time you know someone who’s been badly injured, you might want to keep in mind the ways he or she might get compensated for the costs arising from the injury and the ways the law discourages the conditions that caused the injury.