Tort Reform: A Bad Bargain That Won't Fix Health Care

On Friday, the Associated Press reported that a southern Illinois woman died after catching fire on the operating table during surgery. This woman unfortunately joined the least discussed, but most far-reaching statistic in health care: according to the Institute of Medicine, 98,000 people die annually from preventable medical errors.

To put this into perspective, 98,000 deaths is like two 737s crashing every day for a whole year. If this were the case, would lawmakers consider giving the airlines immunity, or make air travel safer instead?

As part of a "grand bargain" to create a bipartisan health care bill, some have said tort reform should be included. For most people, the term "tort reform" is empty and meaningless. But here's what it means: taking away the legal rights of patients, injured through no fault of their own, and preventing them from obtaining legal recourse. And it isn't fact-driven or grounded in reality; rather, it's just part of the Washington sideshow to distract from what really plagues our country's health care system.

Look at what the actual data says: 98,000 people dead every year from preventable medical errors, at a cost of $29 billion. Countless more are seriously injured with astronomical costs. The Congressional Budget Office and Government Accountability Office have looked at tort reform multiple times, and said it will save practically no money. They also found no evidence of so-called "defensive medicine," finding that doctors run more tests because of the fee-for-service structure, or because of the benefits extra tests have on patient care.

Additionally, a 2006 study from Harvard found that 97% of cases were meritorious, totally debunking the idea that frivolous lawsuits plague our courts. And while 46 states have enacted some kind of tort reform, health care costs have continued to skyrocket, while injured patients or their families often can't seek justice.

It's no coincidence that the same people who have hijacked our health care system -- the insurance companies -- are the same folks who want tort reform. Insurers charge exorbitant amounts for malpractice coverage, raking in billions of dollars off the backs of doctors. Then, the insurance companies lobby for tort reform, and promise to pass the savings onto physicians and consumers. Of course, the savings never materialize, while injured patients are left holding the bag. We've been fooled once before, and shouldn't let it happen again.

Watching all the health care debate and cable news punditry, you hear about different parties having to "give something up." For example, the insurers, drug companies, the AMA, and hospital associations have all been involved in trades or negotiations so their own interests are taken care of in the health care bill.

But what about the interests of actual patients, who know better than anyone what good health care should look like? Or the interests of injured patients, who know better than anyone the consequences of bad health care? Their rights and concerns aren't being considered, and in fact, lay on the chopping block.

Injured patients have suffered enough. They shouldn't have additional barriers thrown in their way to seek justice, or be told their life is worth a set arbitrary amount. Instead, we should focus on preventing these people from being injured in the first place. Fewer errors equals fewer injuries, and fewer injuries means less litigation. Fix the problem on the front-end, rather than discussing ways to bargain away the rights of already injured patients.

Forty-six states have tort reform, and American families still shoulder exorbitant health care costs. All the facts and data say it doesn't work. There's still 98,000 people dead every year from medical errors. But when political gamesmanship and backroom deals take over, the facts fly out the window.

This health care bill has a long way to go. But let's be perfectly clear: patients' rights aren't negotiable. Tort law changes won't fix health care, but only make it more difficult for injured patients to seek justice. Instead of bargaining away patients' rights, Congress should their safety first. There's 98,000 reasons why they should.

 

 

Comments

[psf]

"preventable errors" is a misnomer. errors occur because you're dealing with imperfect human beings, who make errors. you can never create a system that incorporates human beings in which errors do not occur.

[TheIndependenceParty]

Awards are falling, and premiums are rising. This is a reflection of insurance companies increasing their profit margin, and also a crass attempt to squeeze physicians to complain, ... relocate, ... ask patients for support to enact tort reform, etc. The insurance companies are not below using premium levels to elicit a political effect.

As for physicians, if they have so much confidence in the competene and coscientious care of their fellow physicians, ... why don't they create an insurance cooperative among themselves as the Right is demanding of citizens?

In the end a malpractice lawsuit can not be frivolous and stand. It will rise or fall on its own merits before a judge or jury. The huge sums we hear reported are a reflection, in most cases, of gross incompetence and malpractice, poor adherence to policies and procedures, and negligence. There are nitwits in practices everywhere, ... physicians who should not be physicians at all. That other physicians tolerate that is incomprehensible.

When you are driven from practice by increased malpractice premiums (and not your own incompetence), I suggest to physicians that you direct your wrath toward the physicians in your state who should not be in the profession at all!

[tonkatsu]

The way to reduce Malpractice is to address the REAL Problems:

1.) Medical schools Ration the number of students they admit. Part of the admissions process is a requirement that the student be "Recommended" by a Panel of practicing physicians. It's a lot easier if Daddy is a doctor. It has reached the point where the title of MD is practically Hereditary, like "Count", "Duke", "Earl" or "Prince".

Fix: Create a Federal "University of America" with regional campuses. Have these Universities include Medical Schools with Teaching Hospitals. Admit qualified applicants (Brains, not Family) willing to swap Education for Public Service.
Public service could be in community clinics, VA Hospitals, US Military or a University Hospital.

2.) Reform Physician Training: We've seen the movies depicting student Doctors subjected to 24/7 "Training Schedules" that have them working 3, 4, 5 days in a row with little or no sleep.

Sleep Deprivation = Torture:
[Quote] Sleep deprivation causes many psychological and physical issues such as headaches, high blood pressure, stress, lowered immunity, impaired verbal processing and complex problem solving. It has also been known to cause depression, irritability and a reduced sense of wellbeing. [/Quote]

Why do we Torture student doctors when evidence suggests that it Hinders "Training"?

FIX: Revise training for Student Doctors. Forbid "Torture", Increase knowledge. This yields better results for Doctors AND their Future patients. Look at that Quote above and ask if you want Your Doctor suffering those problems while treating you.

[codycap]

(!) The medical profession does a really piss poor job of policing its own. – I believe you can find many examples

(2) Tort actions are about the only way to hold anyone in the profession accountable. – Isn’t that correct?

(3) Under single payer universal healthcare, patients would not have to sue to obtain the care they need from medical error. – They wouldn’t need to, right?

(4) A universal system could also standardize what best practices mean, the amounts of payouts for pain associated with malpractice, and disciplinary action against offending physicians and caregivers (for instance, a doctor could not move cross state or out of state to start up again as happens now). – This of course would not be perfect but you have to agree the tort system we have now isn’t either.

[kensp]

If you think doctors in Canada with its single payer system cannot be sued for negligence then you are misinformed. This is just another baseless allegation from the right.

[codycap]

I did not say that they could not be sued.

I am just saying that to me it looks like it would be easier and fairer on both the doctor and the patient.

Nothing we devise will ever seem fair either to the doctor or patient - one will want to pay less and the other will want to receive more, always.

Under single payer the patient will get any medical care needed due to a mistake. That will relieve the doctor from having to pay for it so that should save him and his insurance company money.

[minerva117]

My husband pleaded with his doctor to send him to a specialist (pulmonologist) and was blown off multiple times. He finally called and DEMANDED a referral to a specialist. I drove hime to the appointment on Aug. 21st. He died 15 days later. Had he seen a specialist 6 months or a year ago, I might still be a wife and not a widow. My income is going from about $5000 a month to about $700. Thanks doc, now I'm not just alone, I'm also poor!! BTW I will be calling a lawyer today to discuss the possibility of a wrongful death suit.

[den1953]

Yeah tort reform ala cart

Body Limbs= 150,000

Leaving instruments in body cavity= 150,000

loosing a reproductive part= 125,000

Loosing your life=priceless

[melodramy]

People should not ( but do ) confuse "lowering medical malpractice insurance premiums" for doctors, with "lowering health care costs." Doctors and insurance companies may be demonstrated to have improved profits in states where patients' rights are most limited, but tort reform has not been shown to curtail the escalating health care costs to Medicare, employers and the insured in the states which have it. It hasn't been shown to decrease the amount of unecessary services performed, which remain solidly in place because of fee-for-service pay & profit structure. Since it hasn't been shown to achieve anything useful towards the actual goals of reform (extended coverage and decreased spending) it is just an ideological diversion away from true reforms that are needed, and once again, places all the focus on benefitting profiteers on the backs of sick and harmed people.

[KenFL]

Are you saying that doctors rarely perform unnecessary procedures for defensive reasons (to avoid lawsuits), but they routinely perform them to make more income for themselves?

Could you please point me to some info that shows this? It sure goes against the grain of what I've known about most doctors.

Your argument that whatever savings might come from tort reform are small is a good one, but the political impact of this issue is huge (not so obvious, probably, to most readers of this website) - it would allow President Obama to build trust with a wary public that really does yearn for bipartisanship (really).

[CelticMajic]

Anthony Tarricone is president of the American Association for Justice (AAJ), formerly known as the Association of Trial Lawyers of America (ATLA). A very disinterested party I am sure.

I live in Madison County IL, some have called it litigation heaven. We have virtually NO OBGYN docs on this side of the river. All have moved across the river to St Louis MO--why do you think that is? It is not just about court action, it can be about access.

[BBackSoon]

While I think almost all of us will agree that there must be some way to stop frivolous lawsuits, we must still keep some form of oversight and accountability over the medical profession.

I am also well aware of Madison County’s well earned Judicial Hellhole reputation. Lived there most of my life but moved one county North a few years back. And you know that when everyone talks about Tort Reform we THINK of abusive or frivolous lawsuits like the ones MadCo’s famous for, but this will creep to include all Private Litigation against doctors, healthcare providers, hospitals, drug makers, insurance companies and more than likely corporations as a whole.

I do not know what the answer is but when the Right talk about Tort Reform they are actually talking about removing still more accountability for business therefore saving business money and increasing profits. This is Less Citizens Rights being called Freedom.

How many of us believe that if Tort reform were enacted tomorrow our insurance costs would go down and our service would go up?

[CelticMajic]

It would be nice to have access to someone in IL vice going to MO. And our tort system in IL has run out a lot of good docs. Again costs and service are moot when there is no access.

so are you in Macoupin, Montgomery or Jersey?

[hippie chucker]

Using your "logic", there should never be tort limits, I suppose.
Texas' tort reforms have put a big damper on frivolous lawsuits-the loser has to pay all legal fees. If we could just enact that, and leave damages untouched, I would be happy.

Something like 50% of neurosurgeons get sued at one point or another. Are 50% of neurosurgeons bad doctors? Of course not. What you have is the inability of some people to accept that horrible things can happen (cancer, tumors) to those they love, and seek to place blame somehow.

[jmpurser]

Don't use words like "logic" until you're capable of understanding them and applying them to short articles like the above.

[LauraD]

Texas' tort reforms have done exactly nothing to help control health care costs.

http://www.businessweek.com/magazine/content/09_39/b4148030880703.htm
http://www.familiesusa.org/assets/pdfs/costly-coverage/texas.pdf

Frivilous lawsuits (as in those with no merit whatsoever) are tossed before they make it into a court room. If there is merit to the case, then it is allowed to proceed, but it can't be called frivilous if there is merit.

Common sense and a little knowledge of the legal system goes a long way.

[melodramy]

Might as well quote the article for those too uncurious and ideologically blind to click the link :)

"Look at Texas, which enacted some of the most extensive malpractice reforms in the nation in 2003. The number of lawsuits in the state has fallen by half since then, and malpractice premiums are down 30%. But health-care costs in Texas are still among the highest in the nation and are growing at a faster rate than in most other states."

http://www.businessweek.com/magazine/content/09_39/b4148030880703.htm

[timnlisa1]

(From Previous) 2nd, there are cases where it could have been known that something goes wrong but the surgeon or doctor did everything that can be reasonably expected to prevent accidents from happening. In this case the arbitration board should be allowed to award a settlement and both sides should be required to abide by this ruling. Lastly, there are cases of gross negligeince. In this case, the arbitration board should allow the case to go to the courts. There should be no limit on the jury findings.

I think this seems basically fair. Of course, great care has to be taken on impartial people to serve on the arbitration boards. The members have to have intelligence in the medical profession, but they can't have relationship with any parties involved. I am sure there are lots of details that have to be considered. But I think we can come up with a system that is fair to all parties involved. It would punish people that are grossly negligent and at the same time, it would protect against major abuses to the system.

[timnlisa1]

OK, I am a bleeding heart, huge Obama fan, cognizant of all the ways that todays GOP is completely worthless as a negotiating partner for anything. I am also the son of a Bill O'reilly fan (and he hates Hannity and Beck) so in other words a somethat reasonable though still partisan Republican. That said, from our discussions, this is a huge sticking point for independents and moderate republicans.

Now I totally agree that with gross negligience, there should be no limits to what perpatrators are forced to pay to help make it painful to do the wrong thing on purpose. But I can see my Dad's point that there are enough examples of fraudulent law suits that make some people question the motives of the system.

Now I question why we can't have a more reasonable system of arbitration that would weed out these obviously laughable law suits (even if they only amout to 3% of the lawsuits, though I suspect it is more then that). I think that when there are issues that happen that lead to a patients death there are really 3 main possibilities: 1st there are issues where there was no possibility that what happened could have been forseen. This should basically be thrown out. While tragic, if something happens, this is something that a patient agrees to as a possible outcome. As long as the doctor is acting responsibly and in good faith, it is simply a tragedy. (continued)

[jmpurser]

Thank you for the stats. They don't work on the people who advocate tort reform but perhaps lurkers will take note.

[jsgaetano]

If we have national health care, "tort reform" becomes a non-issue.

A great deal of the money from court settlements is for treatment, and to offset any future health problems. If we have national health care... those costs mostly disappear.

That's another reason conservatives so desperately fear national health care. It will destroy another source of their dirty money.

[LauraD]

Exactly.

People in this country are either too stupid or too lazy to bother finding this out. No one has questioned why medical malpractice insurance is practically non-existent in countries with universal health care. There's a reason for that. Most people don't want to take everything a doctor has for a mistake. They just want their medical bills paid for. Universal health care will pay their medical bills. The only time you hear about malpractice in other countries is in the case of clear negligence.

[billobasher]

Texas, California, Missoural and several other states already have tort reform. Guess what? It has done nothing to lower healthcare costs. Costs i those states have risen just as fast. Why?

[Carrie-On]

They have risen because of the cost of for-profit medcial supply vendors, and home health care companies proliferating in those states, totally uncontrolled, leaving a trail of damages, patient abuses, overcharges, high costs, and excessive salemanship pressures on the healthcare consumers. BUSINESS AS USUAL.

The costs have risen because of the business moguls taking over hospitals so now its about competition for filled 'beds,' replicated services, over-purchasing of high-priced equipment (which MUST be used to pay for it!), tests, et al instead of a goal to decrease the number of "beds" needed. Nothing is patient-centered, preventive­-centered, it's business-centered.

[billobasher]

They have "tort reform" in several states including California. It has done nothing to bring down health care costs. NOTHING.

[Carrie-On]

AND, every doctor has at least 2 lawfirms - they love lawyerss, so what's the problem?