The healthcare program President Obama is selling is not insurance. It’s welfare. Insurance is fundamentally the underwriting of risk. The president’s plan would require all policies be the same regardless of risk. Want to insure a pre-existing condition? You can do it, but you have to charge accordingly. When you insure known claims, you are not insuring at all, you are just accepting liability.

If I offer to pay you to accept the risk that I will be eaten by pygmies, you could probably afford to charge me very little. But if I want you to accept the charges for medications I use regularly, you need to charge me more than I pay. The Obama plans would have insurers charge the same in both instances.

But if you want to see the wild card in the deck, just look at the role lawyers have assumed in the provision of health care. In the interests of full disclosure, I remind you that I am a lawyer, although retired from practice.

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When I was practicing law back in the  1960s and 1970s, it was unethical, and in some states illegal, to solicit business. Charges could be brought against a lawyer who even suggested his services might be beneficial. The offenses, carried over from the English common law, were champerty and barratry.

We were lectured in law school the practice of law was “a profession not a mere money-getting business.”

Today, lawyers are free to advertise and seek clientele. I can’t really oppose that since the rights are guaranteed by the First Amendment. But clearly the profession has become a business and getting money is the name of the game. In isolation, that is defensible. In context of the way it operates to distort the economy in general and the medical profession in particular, in the absence of restraint, it cries out for regulation.

I am uncomfortable calling for any new regulation of anything. But there is a reason champerty and barratry were illegal for so many hundreds of years. The law is an adversary system and medicine is non-adversary. The two mix at the expense of the latter. And that necessitates some control.

I am particularly discomforted by television commercials in which a lawyer solicits plaintiffs for class action suits. Did you ever read the fine print at the bottom of the screen on these commercials? In most cases the fine print contradicts the audio narration. It tells you it is not a good idea to select a lawyer based on television advertising.

The advertising lawyer will not represent you. More likely it will be a paralegal who will separate the sheep from the goats and send the good plaintiffs to a different law office that is assembling the class. For the advertising and vetting, the advertising lawyer will get a piece of the action. But he or she will not work on the case or hold any responsibility for it.

Aggressive lawyering is unfair to the public. Lawyers have a sensitive trust. They hold the keys to the kingdom in the sense that they can mobilize the considerable force of government to their service. Theoretically, so can any person. But as a practical matter, a non-lawyer coming up against a lawyer would be left a grease spot in the road. You need lawyers to operate the court system. Lay people cannot do it themselves. It’s too complex.

There has been a 1,400 percent increase in the number of TV lawyer solicitations in just the last four years. Spending on them increased from $3.8 million to $62 million in the same period. Those ads must be enriching somebody.

In fact, lawyering has been very successful. It has grown from a profession to a business to an industry. And as such, it has become too powerful.

Liability is essential to shaping doctors’ practices in the patients’ interest. Totally insulated from liability, they would tend to become like the government employees they would be under Obamacare. But liability exposure has gone too far. It has become ruinous. That is counterproductive.

Like any astute special interest group, it has found an ally in the Democratic party. It showers money on them and they make up a team which rarely disagrees. You set ‘em, up, we knock ‘em down. Only they have been too good. They risk crushing the medical system and are responsible for a significant amount of the cost of medical care. It has been estimated that tort reform could save the public up to $128 billion a year under reasonable restraint. Without some form of tort reform, there will never be a workable solution to the healthcare problem.

Contact Lionel Waxman at territorial@waxmanmedia.com or visit his website: www.newflashpoint.com.