The value of tort reform is exaggerated
Obama generated a little bit of excitement among Republicans last night with his proposal to conduct pilot programs on medical malpractice — or tort reform. That’s a favorite hobby horse of the GOP, which insists that a major reason for spiraling health care costs is frivolous lawsuits against responsible physicians.
It’s not just the jury awards, says the GOP. It also the additional tests and procedures that physicians order to protect themselves against lawsuits. They call it “defensive medicine.”
If Democrats would only stop protecting the “trial lawyers,” say Republicans, health care costs would come down.
Well, I don’t hold any brief for trial lawyers. I know there are sometimes outrageous and frivolous lawsuits. But would so-called tort reform really bring down the costs of health care? Many experts don’t think so. That includes this Univ. of Pennsylvania professor interviewed by The Washington Independent:
“It’s really just a distraction,” said Tom Baker, a professor at the University of Pennsylvania Law School and author of “The Medical Malpractice Myth.” “If you were to eliminate medical malpractice liability, even forgetting the negative consequences that would have for safety, accountability, and responsiveness, maybe we’d be talking about 1.5 percent of health care costs. So we’re not talking about real money. It’s small relative to the out-of-control cost of health care.”
Insurance costs about $50-$60 billion a year, Baker estimates. As for what’s often called “defensive medicine,” “there’s really no good study that’s been able to put a number on that,” said Baker.
Another reason not to focus on medical malpractice in a national bill?
Most medical malpractice suits end up in state courts. And state laws are controlled by state legislatures. Indeed, both Georgia and Texas have enacted tort reform.
The Texas experience is instructive. While Texas conservatives claim their tort reform has brought down medical costs, Dr. Atul Gawande, writing in the New Yorker, found that McAllen, Texas has some of the highest medical costs in the country, without any additional benefits to patients.
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© 2009 The Atlanta Journal-Constitution
17 comments Add your comment
RealityKing
September 10th, 2009
2:44 pm
Health care’s big money wasters
More than $1.2 trillion spent on health care each year is a waste of money. Members of the medical community identify the leading causes.
1)Too many tests
Doctors ordering tests or procedures not based on need but concern over liability or increasing their income is the biggest waste of health care dollars, costing the system at least $210 billion a year. The problem is called “defensive medicine.”
money.cnn.com/2009/08/10/news/economy/healthcare_money_wasters/
RealityKing
September 10th, 2009
2:50 pm
3)Using the ER as a clinic
More insured and uninsured consumers(ie.., illegal aliens) are getting their primary care in emergency rooms, wasting $14 billion every year in health care spending.
RealityKing
September 10th, 2009
2:56 pm
Nearly 900 doctors in eight specialties, including family medicine, gynecology and anesthesiology, responded to the first-of-its-kind survey by the Waltham-based Massachusetts Medical Society.
A total of 83 percent of physicians who responded said they practice defensive medicine. An average 18 to 28 percent of tests, procedures, referrals and consultations and 13 percent of hospitalizations were ordered out of fear of being sued, the survey said.
Thirty-eight percent of doctors surveyed said they reduced the number of high-risk services or procedures they performed and 28 percent reported reducing the number of high-risk patients they served.
“Because there is a cone of silence imposed on everybody, there’s no way you can look at the care to say what went wrong and how we can fix it,” said Metz, president of the Hampden District Medical Society. “No one can talk.”
masslive.com/news/index.ssf/2008/11/survey_says_many_mass_doctors.html
Bert Pace
September 10th, 2009
3:06 pm
Hey Reality King – You need schooled. As you drive by a hospital, and you see all of the clinics surrounding the hospital like mushrooms, who do you think owns these clinics. That’s right, the doctors do. So every time they order a test, guess who gets richer – that’s right sparky, the doctors who own it. How much information is available about the surgeon who is about to operate on you. What is his success rate, what’s his work load like that day and the day before? You can’t get answers to any of these questions. I’m sure you are probably all about merit pay for school teachers, how bout the same deal for doctors? Try and get them to agree to that. What kind of mechanism is there for weeding out bad doctors? Anybody have a clue? They avoid any kind of accountability, and then wonder why they get sued. Like that has anything to do with 47 million uninsured. Get a grip on reality.
jconservative
September 10th, 2009
3:09 pm
Nice column.
CMS says that in FY 2010 they will spend $803.1 billion in benefits for Medicare/Medicaid & SCHIP. How much of this covers the CMS share of doctor’s malpractice insurance? I do not have a clue.
But I do know that costs must come down. Therefore I welcome the look Obama will give tort reform & hope it leads to legislation.
Dr Nancy, the NBC medical reporter, said in an interview, Morning Joe I believe, that she volunteers one day a week at a hospital. That hospital pays $50K a year for malpractice insurance to cover her one day a week. (You might be able to check on this.) To the layman that sounds completely unreasonable.
lovelyliz
September 10th, 2009
3:12 pm
One of my biggest beefs with tort reform is that the only ones saving $$$$ are the insurance companies. Unless you regulate what doctors are charged for malpractice insurance, much like the huge savings with HMO’s that materialized only with the insurance companies, the doctors will not save one penny, but the CEO’s of the malpractice insurance companies will do very well. Very well indeed.
CD
September 10th, 2009
3:31 pm
McAllen TX is a good sized town. The metropolitan area has about 500,000 people and it sits on the border between Texas and Mexico. I have been there many times as a native Texan. There is a very good reason why it has some of the highest health care costs in the country. Think about it real hard and you will figure it out. It is one of the main components of why Texas has high health care costs and high uninsured figures. Using McAllen as your foundation of why tort reform does not work it very misleading, in fact it is down right laughable. There are other factors.
Scott
September 10th, 2009
3:34 pm
When Republicans oppose a Democratic plan, liberals respond by saying, “You’re just the party of no! You have no ideas. You don’t want reform at all!”
When Republicans then mention what their ideas reform are, liberals blithely say, “Won’t work” and become themselves “the party of no.”
Does their self-contradiction ever occur to them?
Scott
September 10th, 2009
3:40 pm
Correction, 2nd paragraph shoudl read “…what their ideas FOR reform are.”
Dr. Alan G. Phillips
September 10th, 2009
4:04 pm
I agree with Cynthia Tucker, that tort reform is at best an encouragement to juries and malpractice attorneys to remind themselves that the possibility of legislative caps are always present in legislative deliberations. In reality however, the savings from significant tort modification is miniscule in the overall scheme of healthcare cost containment. Defensive medicine, regardless of the number of tests ordered is not a shield against lawsuits and neither are higher malpractice insurance premiums. Tort reform at best is a minor matter in the concept of healthcare reform cost control. The one percent estimate in cost reduction, cited in the article, is probably a bit liberal, a mere blip on the radar screen of costs.
Dr. Phillips
Bloomington, IL
Shawny
September 10th, 2009
4:07 pm
McAllen is one city in TX. So what is your point?
Make it national and each state doesn’t have to deal with it.
So, it only saves 1.5% of healthcare costs? No biggie, right? What was that healthcare cost number again? Astronomical number accounting for 1/6 of the US GDP. Isn’t saving 1.5% of that worthy?
Give me 1 reason why we wouldn’t want to include something that saved 1.5% of a very, very, very large number. Just 1.
Shawny
September 10th, 2009
4:08 pm
Oh, wait…McAllen is on the border. hmmmm…. wonder why their costs are high….
James Dougherty
September 10th, 2009
9:57 pm
It’s estimated that only 15 cents of every medical award dollar actually goes to the patient who was harmed. Guess who gets almost all the rest? As Howard Dean admitted, this is the reason the Administration won’t get serious about tort reform: The trial lawyers contribute heavily to Democrats, and they don’t want to make enemies of such a powerful special interest. As Dennis Miller said, “the trial lawyers are so in bed with the Democrats it’s like John and Oko in Toronto.”
Tort reform in Texas only limits the “punishment” award, not the “harm” award. That can still be very high. Prior to tort reform the total award had to be high for patients to get much of anything. Harm is limited by economic determinations, but punitive can be unlimited. So juries pile on the punitive part for the wrong reasons. 15% of a large number is much less.
To focus on only one town is disingenuous. By contrast, liability savings have funded a charity clinic in Corpus Christi, And as a Texas doctor, I have seen malpractice premiums fall by 20-50% (depending on specialty) since reform was enacted.
And I disagree with Baker that defensive medicine is not a significant amount. We can argue about what’s a “good study”, but there are studies, and their estimates average out to be about $100B a year.
Hilary
September 11th, 2009
3:33 am
Eliminating the right of Americans to seek redress through the courts will result in vigilantism. Great idea GOP.
Eric
September 11th, 2009
9:52 am
Vigilantism, Hilary? Vigilantes are usually seeking some kind of justice. The trial lawyers and their democrat friends have absolutely no interest in justice, just their own wallets and power. If there’s not a huge payoff in it for them they won’t lift a finger.
If there’s a real problem with a doctor/hospital it can still be addressed in the courts – even after tort reform.
Steve Levine
September 11th, 2009
1:29 pm
You keep missing the point on Texas tort reform. It never was about bringing down the cost of health care. The promise of the 2003 health care liability reforms in Texas was increased access to care.
In 2003, Texas was suffering from an epidemic of health care lawsuit abuse. This, in turn, created a serious crisis in patients’ access to care. Medical specialists were significantly limiting their practices, leaving the state, or taking early retirement. Huge swaths of Texas lacked obstetricians willing to deliver babies or neurosurgeons willing to take trauma cases.
In response, the Texas Legislature passed a strong medical liability reform law. The centerpiece of that law is a $250,000 cap on noneconomic damages that may be rendered against physicians or hospitals; the total cap – per plaintiff, per incident – is $750,000.
Texas voters then approved Proposition 12, a constitutional amendment that ratified the legislature’s authority to impose these most important reforms.
By all measures, the reforms have worked exactly as promised. Patients have better access to needed and timely care. More physicians provide specialty and high-risk obstetrical care in both urban and rural areas. Physicians enjoy lower premiums and a more competitive liability insurance market. Consider these facts:
• Texas has gained more than 14,000 new physicians to take care of Texas patients. Many of these physicians practice high-risk specialties such as emergency medicine, neurosurgery, pediatric intensive care, and pediatric infectious disease medicine. Patients now can get more timely and convenient care when needed.
• Twenty-one rural Texas counties have added at least one obstetrician since the passage of Proposition 12, including 12 counties that previously had none.
• The emergency care provisions have saved lives by helping ensure Texas patients have access to critical and timely care. The threat of lawsuit frenzy could harm Texas’ emergency room care.
The 2003 liability reforms have worked. They’ve lived up to their promise. Sick and injured Texans now have more physicians who are more willing and able to give them the medical care they need.
Steve Levine
VP, Communication
Texas Medical Association
P.I.S.S.D. -- Personal Injury, Social Security Disability. Dallas Texas Lawyers: Obama’s Medical Malpractice Reform — Fine Print Is Still Hazy
September 11th, 2009
6:52 pm
[...] her blog at the Atlanta Journal-Constitution (9/10), Cynthia Tucker wrote, “I know there are sometimes outrageous and frivolous lawsuits. [...]