What’s the Fairest Battlefield in the Fight for Better Health Care?

As goes Texas, so goes the nation? Well, at the very least, Texas is demonstrating for us all the proper method of health care reform. Last week, the state attorney general reached an agreement with Aetna U.S. Healthcare that makes changes in the way managed care does business in Texas.

And there wasn’t a trial lawyer in sight. That’s not exactly what the trial bar has in mind. Fresh from the incredibly lucrative victory over the tobacco industry, some plaintiff attorneys now are targeting the deep pockets of managed health care insurance companies. Their goal, according to one of the lead attorneys, Richard Scruggs, is not to redress alleged wrongs but to “change this unconscionable [health care] system through the courts.”

Very dramatic. Yet not very democratic. In fact it approaches the height of arrogance--the assumption by class-action lawyers that they have the right to sidestep the executive and legislative branches of the federal government, as well as those of the 50 states, which have consistently passed laws both promoting and regulating managed care.

The many class-action suits brought during the past year against managed care companies--several of which were filed in California--can only be interpreted as an attempt to end managed care. Though they have been brought under several different legal theories, the suits are all fundamentally the same. Not one of them seeks to redress any actual injury to any individual. Instead, they claim that the compensation and incentive arrangements between the insurance companies and the primary-care doctors with whom they contract invalidate the advertised promise that plan subscribers will receive quality health care coverage.

The litigation seeks to use the courts to undermine some of the principles that are at the core of managed care. Managed care seeks to control unnecessary testing and surgeries. It employs incentives to emphasize preventive medicine. As one court has noted: “HMOs . . . have a reason to deliver excellent preventive medicine. Prevention may reduce the need for costly services later.”

Our legal system is meant to offer recourse to plaintiffs who have been harmed--and to deter harmful behavior by defendants. It is not designed to allow attorneys in tort actions to fashion or to change public policy. American democracy assigns that job to the voters, to the people they vote into office and to the regulatory agencies those elected officials oversee.

In fact, health care is already a highly regulated industry subjected to an impressive array of state and federal oversight. What’s more, the core issues of the current litigation have been hotly debated for years. How much and what kind of health care do we as a society want? How much can we afford? How do we draw the lines between what we want, what we need and what we can afford? What is the most efficient way to pay for it? These are not issues that can be dealt with properly in the adversarial arena of the courtroom.

In order to keep the various disputes that arise in a democracy in their proper places, our system sets strict limits on the powers allocated to the different branches of government. For more than 200 years, that system has managed very well the delicate task of balancing the needs and desires of individuals with those of society at large. That task is not something that should be handed over to the not-so-tender mercies of the class-action plaintiffs’ bar.

The Texas agreement (in which Aetna will not penalize doctors in its network who spend over budget for needed patient care) seeks to enhance quality health care and broaden patients’ access to information. And it does so without causing the kind of economic damage that is part and parcel of a litigation explosion that Californians know too well. That explosion has put a damper on innovation and entrepreneurship and raised the cost of doing business, thereby limiting choices and increasing costs for consumers.

Just as important, lawsuits filed not to redress harm but to enact social change also skew the public perception of our court system. Usurping the regulatory power of elected officials who answer to the voters is rapidly making the trial bar a chief danger to the rule of law in this country.