It's the process, stupid.

While doctors may have paved the way for caps on noneconomic damages in medical malpractice lawsuits across the country, I've often thought that caps were a strange thing on which to focus their energy, given that 1) they doesn't lower their insurance premiums and 2) it gives the other side a chance to make its best case by bringing out all the victims of medical malpractice who wouldn't be able to sue with the caps in place. The victims help make the debate highly emotionally charged and the doctors occasionally lose as a result.

I'm not the only one who thinks this. Apparently, the smartest tort reformers are giving up the focus on caps on damages and looking for new "stealth" measures that accomplish their goals without getting the public all up in arms about the possibility that rotten medical care will go unpunished.

Thanks to Point of Law for tipping me to an interesting article on this "second-wave" tort reform by some of its leading gurus, who promote "procedural" reforms that benefit defendants without running into constitutional challenges from trial lawyers (the recent class action legislation standing out as the best example). The authors note, too, that damage caps are pretty much dead anyway as a legislative issue, either because most states have them or because of recent Supreme Court decisions. Future tort reform efforts, as a result, are likely to focus on minutiae of the legal system that the public doesn't understand but will be just as or more effective as limiting jury awards through legislation.