Massachusetts attorney John DiBartolo had a great Op-Ed in the Daily Hampshire Gazette recently:
On August 3 the Gazette published a column by Philip K. Howard, an attorney and chairman of Common Good, in which Mr. Howard advocates for “tort reform” as a way to reduce national health care costs. Howard, the author of Life Without Lawyers, has made a career of blaming various societal ills on our civil litigation system. Healthcare reform is just the latest vehicle he has found to advance his familiar attack on people who have been injured due to medical negligence.
However, tort reform is not a solution to the problem of skyrocketing healthcare costs, it is merely a distraction from a productive discussion about actually solving the problem.
Tort reform advocates do not seem to mind that their propositions are unsupported by facts. Insurance company payouts for medical malpractice claims amount to less than 1 percent of total U.S. healthcare costs. Restrictive tort laws cannot form a basis for healthcare reform when such measures would only affect a fraction of one percent of costs.
Howard’s latest version of tort restriction involves eliminating trials by jury – a right guaranteed us in the 7th Amendment to the U.S. Constitution. He suggests that the loss of this fundamental right will help eliminate what he calls the practice of “defensive medicine.” This theory suggests that costs of healthcare are high because physicians order many unnecessary tests and procedures out of fear that a failure to do so might later lead to a malpractice claim. This myth of defensive medicine is based upon anecdotal examples from very few physicians. This argument is also patently disrespectful of the overwhelming majority of physicians whose medical decisions are based upon sound judgment and motivated by care for their patients.
Ironically, Howard chose to quote an unnamed Texas physician who purports to order unnecessary testing to protect himself from malpractice claims. In a June 1, 2009 article in The New Yorker, Dr. Atul Gawande investigated the ever-rising costs of healthcare in the United States by comparing medical practices in McAllen, Texas with those at the Mayo Clinic in Rochester, Minnesota. McAllen is a small town with healthcare costs that are among the highest in the nation and the Mayo Clinic provides top quality healthcare at some of the lowest costs nationally.
In the article, Dr. Gawande wrote of a physician in Texas who suggested that doctors were practicing defensive medicine. Dr. Gawande then pointed out, that Texas already had the most restrictive of tort reform laws and that medical malpractice awards had been drastically reduced. Another physician in the conversation then admitted that the reason for over utilization of services was not defensive medicine. There have been studies to support this admission.
The Dartmouth Institute for Health Policy has reported that Medicare spending in Texas increased by almost 25 percent in the three years following that state’s adoption of restrictive tort laws. In fact, a University of Alabama study, published in the December 2008 issue of Health Sciences Review, reviewed data from 27 states that already have laws restricting torts and found that such laws do not impact the practice of defensive medicine and have not resulted in cost savings for healthcare consumers. Another 2008 study, published in the MIT Quarterly Journal of Economics, addressed the myth of defensive medicine as it related to the practice of obstetrics. After reviewing the vital statistics of millions of births, the authors concluded that tort restriction does not reduce the cost associated with the practice of defensive medicine.
If defensive medicine is not the reason for the high cost healthcare, then what is?
In Dr. Gawande’s article, he looked to the Mayo Clinic as an example of top quality healthcare at a low cost and asked how it was achieved. The Mayo Clinic managed this feat by putting the patient’s needs first. They eliminated financial incentives to order excessive testing and procedures by paying the medical staff salaries rather than having a fee for services model.
Here in Massachusetts, it appears we are independently reaching the same conclusion. On July 16, 2009, a Special Commission on the Health Care Payment System recommended to Governor Patrick that Massachusetts eliminate the fee for services model of paying physicians. In the alternative, physicians would be grouped into networks responsible for patients’ well-being and they would receive salaries – like the physicians at the Mayo Clinic.
Tort restriction harms those who have already been harmed irreparably and does absolutely nothing to reform healthcare or control its related cost.