Tort reform, reducing the amount of outlandish malpractice awards given to plaintiffs only drives up the cost of medical care for everyone.  The question is:  “Can tort reform be accomplished to reduce malpractice insurance premiums while still protecting patients from actual medical malpractice?”  I say the answer is: “Yes, it can!”

Politically this will always be an uphill battle, as the trial lawyers contribute lots of money to politician’s campaigns in order to keep the status quo.  Many trial lawyers and patients look at the judicial system as the lottery, and many juries have this same view.  After all, they reason, the doctor doesn’t have to pay the malpractice award out of his pocket, the insurance company pays the award.  This attitude has become ingrained in far too many people’s minds, and we all end up paying for it, through higher medical costs which medical facilities have to charge in order to cover the costs associated with the abuses of malpractice lawsuits.

We can start by limiting the punitive damages that are allowed by law.  Right now there are 26 states that limit the amount of non-economic damage awards in malpractice cases.  The malpractice insurance rates in states that have caps on non-economic damages have risen slower than in states that do not have caps on non-economic damage awards.  Opponents of award caps in malpractice suits, claim that you can’t put a price on ‘pain and suffering’ or losses of a limb, then try to prove it with awards close to infinity. Worker’s compensation systems have had a schedule on the amount of money awarded for specific disabilities for years.  This type of schedule can be used as a starting point for an equitable amount to be paid to patients for non-economic damage awards.

Studies also indicate that doctors tend to locate in states with malpractice award caps , reducing the amount of specialists in states with no caps, which also increases the cost of medical care due to supply and demand.  The number of doctors who retire because they don’t want to deal with the aggravation or expense of malpractice suits also affects the number of physicians available to provide healthcare.

The amount of defensive medicine which is practiced in order to protect against malpractice lawsuits has been estimated to be around $50 billion per year, by some authorities and up to $100 billion by others.  Ordering unnecessary tests or prescribing antibiotics when they aren’t warranted not only wastes money, but also subjects patients to unnecessary risks, which can in turn cause more lawsuits.

Somehow, (I don’t have a solution to this problem) patient’s attitudes need to be changed so that if perfect outcomes aren’t achieved, then a lawsuit will be initiated.  The doctor can do everything right, perform the correct diagnostic procedures, arrive at the correct diagnosis, prescribe the proper treatment regiment; yet the patient fails to respond.  Is this a case for a malpractice lawsuit?  Many patients – or their lawyers – believe that it is.  It is not – nor should it be – malpractice if the doctor does everything right, provides a ‘unusual and customary’ medical service, but the patient’s outcome is not perfect.

Most cases of true medical malpractice are obvious.  Most doctor’s will support a patient’s claim of medical malpractice against a colleague, if there was clear malpractice or negligence.  Ethical, competent doctors don’t want their profession damaged by doctors who are incompetent, so in reality if a patient has a legitimate malpractice case, the patient will win that case in an overwhelming majority of cases.

In order to reduce the number of frivolous malpractice suits brought to the courts, there needs to be some mechanism which punishes the lawyer and the plaintiff equally for bringing a patently frivolous malpractice suit.  As the laws now stand there is no reason not to initiate a frivolous malpractice lawsuit.  The cost to the plaintiff is ZERO, and to the lawyer just some time and copying charges.  If there is a substantial penalty for initiating frivolous malpractice suits, then the number of these nuisance suits will decrease, and there will be more money available for medical treatment for everyone.  Isn’t this what healthcare reform is supposed to achieve?

Implementing simple, common sense tort reform relating to medical malpractice lawsuits will increase the availability of healthcare to those who need it and reduce the cost of healthcare for everyone.  Billions of dollars that now go to lawyers or for unnecessary, defensive tests or treatments can be diverted to healthcare for low income or patients that are now uninsurable.  The stated goal of healthcare reform is to provide healthcare for the millions who can’t afford or get healthcare insurance.  It’s time to call the politician’s bluff.  Common sense tort reform can provide $50-100 billion per year for healthcare treatment for millions of Americans without increasing healthcare insurance premiums or forcing people to buy unnecessary healthcare insurance coverage.

COMMENTS:

Lack of tort reform burns up health care dollars, harms patients and demoralizes physicians. See http://www.MDWhistleblower.blogspot.com under Legal Quality.
Michael Kirsch, M.D.
02/02/2011

In addition to tort reform, what about free market competition across state lines for consumers to purchase health insurance? Penalties for insurers for delay tactics on reimbursements to providers? The government capped salaries for executives who accepted TARP funds. What about capping executives salaries for insurers accepting government subsidies? What about eliminating big corporation contributions to campaigns thereby detering kick back policy making to insurers and pharmaceutical companies? What about government funding/creating a company for medical technology to reduce cost to bring them to market? The government already has developed a pharmaceutical manufacture to fill a void created by free market enterprise.

The problem is multifaceted. We need more than tort reform!

Truly, Jeffrey Dare D.O., M.B.A., M.S.
02/02/2011

Has it ever been proposed to eliminate malpractice insurance entirely via insurance companies? Responsibility for malpractice claims could be handled by the American Medical Association who would provide appropriate discipline, training and punishment, including monetary or loss of license penalties. Remuneration to patients would come from AMA funds rather than from insurance companies. The AMA is in a much better position to oversee, provide penalties, etc.
Dr. D. Schiffman
02/05/2011

I want to touch on patient expectations. This societal expectation that people can do whatever they want to their bodies and then blame a doctor when something does not go according to textbook is outlandish! Maybe there should be an incentive program (other than the obvious one of THEIR OWN HEALTH) implemented to patients to take at least a passing interest in their health BEFORE they are met with an issue that COULD result in a non textbook prodecure. This entire country needs an expectation adjustment. I constantly hear that the baby boomer generation “wants what they want when they want it” or that the younger generation has “entitlement syndrome” As a medical society we need to change the expectation of the patients. Medicine is science, each individual body that enters the equation just changes the variables.
Sherry Krueger
02/08/2011