Obama, Medical Malpractice and Tort Reform

President Barack Obama continued to vaguely endorse conservative ideas such as efforts to prevent victims of medical malpractice from winning compensation in the civil justice system in his health care speech last night:

The AP reports that in his speech before a joint session of Congress last night pushing his ideas for healthcare reform, President Obama said “that he wants to look at a ‘range of ideas’ to ‘put patient safety first and let doctors focus on practicing medicine.’ Obama says some in Congress believe medical malpractice reform can help bring down health care costs. He says he doesn’t think it’s a ‘silver bullet,’ but that he knows that doctors practicing ‘defensive medicine’ can lead to unnecessary costs.

But, the reality is, as McClatchy notes, “[f]ew causes in the healthcare debate draw more support than tort reform — the idea of reining in frivolous lawsuits that lead to unjust cash awards, soaring malpractice premiums and “defensive medicine,” the unnecessary tests ordered by doctors to avoid being sued.”

However, according to the McClatchy analysis, “despite the perception that ‘jackpot justice’ has fueled soaring costs, hard data yield a much different picture.” McClatchy reports that the “most reliable estimates peg the costs of malpractice litigation at less than 2 percent of overall healthcare costs. And while tort reform measures have helped tamp down malpractice premiums, national health spending continues to rise.” Moreover, it is not “clear that jackpot justice, as opposed to declines in insurers’ investment income, is to blame for rising malpractice premiums.” This “suggests that a tort system run amok is, at best, only a small contributor to the nation’s healthcare costs.” (emphasis added)

McClatchy has got it right.  As demonstrated by the recent Hearst expose on massive, nationwide medical errors – Dead by Mistake – it is clear that the civil justice system is the only true defense for consumers against medical errors – which are the THIRD leading cause of death in the United States.  Further, the CBO reports that malpractice claims make up less than 1% of the health care costs in America.  So, even if you completely eliminated all malpractice claims, 99% of the costs would still be present.

It should be also be noted that in Texas – the state with the most stringent caps on medical malpractice lawsuits – health care costs remain the highest in the country.  A June 1, 2009, New Yorker magazine article by Dr. Atul Gawande, “The Cost Conundrum; What a Texas town can teach us about health care,” explored why the town of McAllen, Texas, “was the country’s most expensive place for health care.”  The following exchange took place with a group of doctors and Dr. Gawande:

“It’s malpractice,” a family physician who had practiced here for thirty-three years said. “McAllen is legal hell,” the cardiologist agreed.  Doctors order unnecessary tests just to protect themselves, he said. Everyone thought the lawyers here were worse than elsewhere.

That explanation puzzled me. Several years ago, Texas passed a tough malpractice law that capped pain-and-suffering awards at two hundred and fifty thousand dollars. Didn’t lawsuits go down?  “Practically to zero,” the cardiologist admitted.

“Come on,” the general surgeon finally said. “We all know these arguments are bullshit. There is overutilization here, pure and simple.” Doctors, he said, were racking up charges with extra tests, services, and procedures.

Here’s the real issue.  Many doctors are not ordering additional tests to avoid being sued, they are ordering additional tests to get paid. Here’s more from the Op-Ed cited above:

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.

Let’s reform the way that doctors are compensated, so that wellness and preventative care is rewarded, and work to reduce health problems AND medical errors. THAT’S real reform.


5 responses to “Obama, Medical Malpractice and Tort Reform

  1. Pingback: EconomyBeat.org - user-generated content about the economy » Blog Archive » The Speech – Reaction

  2. I talk to patients who tell me about missed diagnoses and mistakes from doctors and very few of them sue. Usually I can’t tell what the whole story is, but occasionally a situation looks like clear malpractice. People who are sick have just enough energy to get through the day, they’re not quick to start a lawsuit.
    But the other side is that I have to pay insurance and consider liability more than I would like.
    The present system neglects many people who have fair claims, rewards people who have good lawyers, and requires practitioners to pay heavy insurance.
    I’d like to see a better way to compensate people who are harmed, and hold doctors and nurses accountable, than the present system of leaving patients to file a lawsuit or suffer in silence.

  3. I believe the threat of lawsuits is what scares people, it is really not the probabilty.

    Would “ninjanurse” support my ability to sue after it has been taken away from me by the Reigel v. Medtronic Supreme Court ruling.

    Would “ninjanurse” call their senator to tell them to support states rights and the Medical Device Safety Act of 2009.

    If 85% of the people say we need tort reform then why do these same people that participate in this system not take personal responsibility themselves. I would guess it is because this issue of tort reform is exaggerated.


  4. Pingback: Did Texas Tort Reform Work? « Robert's Fight

  5. I haven’t checked within for some time as I think it is obtaining boring, but the previous couple of posts are wonderful high quality so I speculate I¡¦ll add you to my personal every day bloglist. You should have this my pal 🙂

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