I was shocked to open the New York Times this morning to find that President Obama is considering adding a provision to the health care bill shielding physicians from lawsuits at the expense of innocent victims. According to the Times, Obama sees tort reform as a "credibility builder"--as if it is impossible to appear credible about fixing healthcare without tort reform. In advocating for a measure to reduce the number of med mal suits, Obama is playing into the myth perpetuated by insurance companies that there are a deluge of so-called frivolous lawsuits. Medical malpractice insurance accounts for a very small sliver of total healthcare costs, and there is no nationwide lawsuit "crisis." In many states, it is harder to bring malpractice cases than ever before.
As University of Pennsylvania law professor Tom Baker points out in The Medical Malpractice Myth, the real "crisis" is not the cost of malpractice lawsuits, but the cost of malpractice. Studies--even when conducted by physicians--have shown time and again that there is an alarmingly high rate of malpractice in the United States. One well-known report by the Institute of Medicine on the National Academy of Science noted that 100,000 Americans die each year from medical malpractice. 100,000! According to Mr. Baker, more people die from medical mistakes than die from auto and workplace accidents combined. We know for a fact that there are far many more instances of serious medical malpractice than malpractice suits. In other words, there are not enough malpractice suits. This may be surprising to some, but isn't to those of us who have worked at personal injury firms. During my year at a prominent personal injury firm in New York City, I was shocked by the serious malpractice cases we were forced to turn down, simply because state laws have made it economically infeasible for lawyers to take all but the lowest risk, highest paying suits. (People are always surprised to learn how few malpractice suits there actually are in America; as Tom Baker mentions in his book, there are only 400 med mal suits filed annually in the entire state of Connecticut.)
When a person is injured by malpractice, someone has to pay--the only question is who. If during a delivery a physician makes a decision that flies in the face of well known medical principles and a child is born with cerebral palsy, there is nothing we as a society can do to "reign in" the costs of that accident. But by limiting those parents' right to a day in court, we are shifting the burden of those costs from the doctor's insurance company onto the parents--or, in many cases, onto state Medicaid programs. Saving money for doctors and insurance companies at the expense of innocent people is not a change I care to believe in.
Sometimes bad things just happen, and we all agree that there is a certain amount of risk involved with going under the knife. Not every bad outcome in the operating room is someone's fault. But often, someone is to blame, and when that is the case, that person must be held accountable. That's personal responsibility, an idea that is at the very core of the American way of life.
It would be one thing if the American Medical Association agreed to support a public plan if and only if the president inserted some sort of tort reform into the bill. That would be bad (very bad, in my opinion), but at least it would be understandable. After all, those of us who voted for Obama knew that we were signing up for a consensus building executive. But why is a Democratic president with a majority in both houses bending over to appease an organization that is never going to come over to support a good healthcare bill? Didn't he learn anything from the House Republicans behavior after Obama gave so much on the stimulus bill? No matter what Obama gives, he is going to be accused by Republicans and right-leaning interest groups of touting a partisan bill. If they are going to call him partisan, why not act partisan and give us a good bill?
Taylor Asen is a legal assistant at the law firm Cuneo Gilbert & LaDuca LLP. He's attending Yale University Law School in the fall.