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'Tort Reform' Means Less Accountability For The Medical Profession

First Posted: 04/26/10 06:12 AM ET Updated: 05/25/11 04:40 PM ET

Doctor

President Obama is widely expected to toss Republicans a bone at Thursday's health care summit, by publicly embracing what's known as "tort reform."

By tort reform, Republicans and medical professionals mean caps on non-economic punitive damages in lawsuits where patients or their survivors have proven in court that they were the victims of gross medical malpractice.

Proponents have long dominated the framing of the issue with their arguments that tort reform will lead to lower health care costs and will free doctors from practicing defensive medicine. But that narrative is flawed. And it completely neglects how punitive damages are essentially the only way that patients have of holding medical professionals and organizations accountable when they kill, maim or injure people through their negligence or incompetence.

In a letter addressed to President Obama on Tuesday, the American Medical Association (AMA) maintained that tort reform would lower health care costs directly --by lowering insurance premiums, jury awards and administrative costs not covered by insurance-- and indirectly, by curbing the use of unwarranted tests and medical procedures to guard against lawsuits. Citing the nonpartisan Congressional Budget Office, the AMA added that tort reform "would reduce federal budget deficits by about $54 billion during the 2010-2019 period."

What the association left out, however, was an earlier statement by the Congressional Budget Office putting that amount in context: Limiting malpractice payouts "would reduce total national health care spending by about 0.5 percent (about $11 billion in 2009)," the office concluded in a letter to Sen. Orrin Hatch (R-Utah).

The CBO has also concluded that "so-called defensive medicine may be motivated less by liability concerns than by the income it generates for physicians or by the positive (albeit small) benefits to patients."

And what about those irrevocably and traumatically affected by gross medical negligence? Big-money malpractice verdicts are reached for a reason: The facts are horrible and the victims have no other recourse.

Consider Merlyna Adams, a school principal in Louisiana, who was shunted to four different hospitals and denied attention even after tests revealed an obstructive and potentially fatal kidney stone in her body. She subsequently experienced pulmonary, renal and congestive heart failure, resulting in the amputation of both her hands and her legs.

Or two-year-old Steven Olsen of California, who after being denied a CAT scan by an HMO after a hiking accident, incurred permanent brain damage and lost his sense of sight. Although initially awarded $7.1 million in non-economic compensation, an existing malpractice law forced his presiding judge to lower the amount to $250,000.

Consider the dependents of the 98,000 men and women who die every year on account of preventable medical errors, a figure put forward by the Institute of Medicine.

According to the American Association for Justice, the official trade group for trial lawyers, legislators ought to be focused primarily on reducing the frequency of malpractice, rather than malpractice litigation, since a mere 2 to 3 percent of all instances of malpractice lead to claims.

"The idea of bargaining away the life of injured patients is a very, very bad idea," President of the Association Anthony Tarricone told HuffPost. "Opponents of health care have seized on tort reform as a panacea....They're bankrupt of any real reforms. The only real solution is eliminating malpractice itself."

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