Tort Reform, particularly malpractice tort reform, has long been a rallying cry of Conservatives/Republicans. They have repeatedly claimed that reducing or capping non-economic damages (mostly punative and pain and suffering) will have a significant impact on medical cost inflation.
And, like many arguments they have made in opposition to the President's proposed health care reform proposal and their opposition to the watered down versions that passed out of the House and Senate, these claims are exxagerated at best, down right deceptive at worst.
I had planned on presenting a unfortunately complex proposal for tort reform that protected doctors (and their insurers) who had clean records of not losing malpractice suits. It would advocate normalizing the definition of clean records by speciality since some specialities get sued far more than others. Doctors who had repeatedly lost malpractice suits would not have any limitations on punative award. Good doctors are rewarded with a level of protection, bad doctors are exposed to huge awards. It would forbid sealed judgements and would require that all settlements be reported even if they were settled out of court.
But I just don't see any need for a system that complex. The cure would be worse than the disease.
The best studies that I have seen indicate the the total cost of malpractice cases in the United States is about 1.5% of all health care costs. How ever you measure the cost of excessive awards, whatever you think that means, the vast majority of that 1.5% slice is valid and wouldn't be reduced by any of the things Republicans/Conservatives have proposed. The OMB puts the total potential savings to the US government from tort reform at $5Billion a year. Thats nice money, but a very tiny fraction of what we are spending.
There is no statistical evidence that I can find that malpractice costs are driving physicians out of the practice of medicine or driving them from high liability states to states with restricted liability.
And there is no evidence that caps on non-economic awards have actually led to reduced rates of litigation or to lower premiums for malpractice insurance.
So, unless I have got the facts wrong, what is the driver behind malpractice tort reform?
Other than protecting Insurance Company profits, what problem is tort reform trying to fix and have the caps on awards that many states have imposed on malpractice awards actually addressed those problems?
If someone can make a real fact based case for tort reform, lets see it.
But just to keep making the same old claims that aren't supported by the studies that have been done, is just another example of Conservatives/Republicans fact free arguments.
What am I missing here?
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14 comments:
UW, There are more reasons to support tort reform that the financial costs of litigation. There are the tens of billions of dollars wasted on defensive medicine. I suggest that the OMB estimates of these costs may be low, as defensive medicine is impossible to measure. Your post also does not address the unfairness and abuse that the medical profession suffers under the current system. I detail these in several posts at www.MDWhistleblower.blogspot.com under Legal Quality. For physicians, this issue is not about the money.
Dr. Kirsch,
I just went back and reviewed your posts on this topic again.
I guess my first question would be, what do you propose? Tort Reform is a very broad term.
My second question would be what system would you put in place to address the legitimate needs of patients who are injured or killed each year due to medical mistakes at all levels of the system? I have seen estimates that as many as 10,000 people a year die from medical mistakes in this country.
I don't disagree that malpractice attorneys have a financial system in maintining the system as it is. As you and your compatriots have a financial interest in changing the current system.
What do you propose?
"As you and your compatriots have a financial interest in changing the current system"
To reiterate, our objection is not primarily financial. It is the fear of getting sued, practice of defensive medicine and being held hostage on lawsuits when we are innocent. I do not wish to deny relief to any deserving a patient. We need a higher bar for filing suits. Perhaps, a 'health court' or panel of disinterested indviduals who can render judgement if the case against a physician should proceed. If a case is filed against this recommendation, then perhaps a 'loser pay' provision be instituted. There are many ways to do this.
I understand that there are many ways to change our current tort system, specifically for medical malpractice or more broadly.
What are your proposals? Which of the broad range of ideas out there do you support?
As an aside, I am not doubting your personal emotional committment to your patients. I do not claim that your principle motivation in practicing medicine is financial. But you do have a financial stake in this debate, no less than lawyers do. I don't besmirch your motivation for becoming a doctor. I don't know that you have any real justification for broadly besmirching theirs. Especially considering that the average pay for Gastroenterologists is ~$390,000/year while the average personal injury lawyer makes about $100,000.
Walt, I believe I offered you a specific recommendation in my prior comment. By the way, if I measure my self-worth by income, then I am below average.
Dr Hirsh,
My apologies. I did not recognize that the suggestions in your comment represented your proposal.
As I understand them, your proposal basically has 2 elements.
"We need a higher bar for filing suits. Perhaps, a 'health court' or panel of disinterested indviduals who can render judgement if the case against a physician should proceed."
and
"If a case is filed against this recommendation, then perhaps a 'loser pay' provision be instituted."
I don't see any attempt to cap awards of any kind in your proposal, which is ususual since many tort reform proposals tend to start there.
I also don't see any suggestion for apportioned liability as opposed to joint and several liability which you have discussed in your blog.
The thrust of your proposal is to reduce the number of cases filed, not to attempt to limit the outcomes of cases that get filed.
Do I have that right?
UW
Call me Michael, which may be easier to spell than Kirsch!
I can not include in a comment all proposals to reform med mal system. I do so on my blog, which you have kindly visited. You are correct that I favor a filter at the front end over caps at the back end. I have supported caps, however, as there was no other remedy available to us.
Michael,
I very much appreciate your continuing contribution to this thread.
I am trying to figure out the practical implications of your suggestions for limiting the number of cases which are filed.
As I understand from your blog, you have been personally sued for malpractice. In each case, from what I can see, you were only one of many people or organizations named in each suit including other doctors, hospitals and maybe even others.
In either (any?) of the time when you ahve been sued, do you think a Health Court screening mechanism would have
Recommended dropping the case all together?
or
Removed you or any of the other respondents from the suit and then recommended that it go forward?
What is your best estimate of how many of the suits that otherwise would have gone forward, would such a court recommend dropping?
How would you be able to get your plea for dropping the suit, or atleast your part in the suit, in front of this court, particularly if the case was filed in a distant jurisdiction?
As far as loser pays goes, I agree with the essence of your proposal that people who file frivolous lawsuits should have to pay the legal costs of those that they sue. You seem to me to be defining a suit being after the Health Court recommended dropping the suit as a frivilous suit.
Am I still on track
Yes, you are 'getting it'! There may be many mechanisms to accomplish the objective of created a filter at the outset. Right now, we have a sieve.
I have done some research on this and I dont' see the system as quite the seive that you do.
Of the times you have been party to a suit, how many times were you the principle defendant and how many times were you one of the others thrown for what seems to be little reason?
And I understand completely if you can't/won't answer.
What I have seen from my research is that suits only get filed in less than 10% of the cases where someone was injured or killed by mistakes made by medical personnel.
Of the cases where you were just a bit player whose name was thrown in just because they could, how many of those cases had real merit where the primary doctor actually did screw up some how?
Would it accomplish what you are looking for if it was harder to sue a laundry list of people when only one or two actually made the mistakes?
Once you are named, how hard is it to get seperated from the case?
Thanks again for remaining engaged in the discussion. You are approaching this from a different direction from most and I am learning from that.
"Of the times you have been party to a suit, how many times were you the principle defendant and how many times were you one of the others thrown for what seems to be little reason?"
I have never been a sole defendant.
"... how many of those cases had real merit where the primary doctor actually did screw up some how?"
In any case I was involved in, my care was proper and I was dismissed. I recall that some other MDs had to settle on some cases. Most defendants on all cases were innocent and were dismissed.
"Once you are named, how hard is it to get seperated from the case?"
This can take months or years. The legal process moves at a glacial pace. The fact that innocents endure this routinely, means that the process is dysfunctional.
Hope this helps.
Michael,
It almost sounds like the problem is less about the suits actually being filed and more about the plantiffs adding a laundry list of bit players to the suit.
Do I have that right?
I think you've got it!
As I better understand your concerns, I am not sure I see a solution.
The current system has some restrictions in place (like the requirement in Ohio to get a doctor to certify that there were errors in treatment) before allowing a suit to be filed. There are lots of barriers to getting a suit filed, but legal and financial. As I think you are aware, only a small fraction of cases where someone is injured or dies as a result of medical mistakes ever end up in litigation.
What structure/process would you propose that would prevent bit players from being included in these cases. And how could you advocate for not being included in the case without incurring some or even many of the same costs (both financial and otherwise) that you face when trying to get yourself removed from an existing case?
Yours is an interesting idea, I just don't see a mechanism for addressing the problem that isn't almost as bad as teh problem.
How would you do it?
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