Tort Reform is not Key to Health Care Reform

I’m turning into a one trick pony with my writing about health care reform. I have no qualifications in the field. I’m a retired electronics technician trying to start a farm. But I’ve been doing some reading on the subject, I think it’s important, and since nothing else is coming to me, here’s another post about health care reform.

High awards for malpractice suits are only part of health care costs. Tort reform may lower costs, but not enough to give coverage to the thousands of people who don’t have any or are at risk of loosing it. Medical tort reform may have a role in health care reform, but is not the “key” to health reform, as the notoriously inaccurate Investor’s Business Daily recently reported (the same publication that said Steven Hawking wouldn’t have a chance in the United Kingdom). People who call for tort reform instead of real health care reform are being unrealistic.

A post, from a law student (not even a real lawyer), does a good job explaining why tort reform, when it involves the misdeeds of major corporations, is bad for us and also explains one of the most famous misunderstood civil cases in U.S. history, the Liebeck/McDonald’s case. The big corporations have done a good job vilifying victims of corporate malpractice in order to turn the public against those who challenge their purity and righteousness. I’ve read a few articles about the the McDonald’s case and each time I do, I get enraged about how we’ve ridiculed a victim who suffered painful injuries as a result of known and deliberate malpractice by a major corporation, and who initially only wanted to settle for medical costs. You may disagree with me about the verdict, but please do me one favor: read the details about the case.

Opponents of real health care reform are advising us to cut consumer protection from doctors in order to lower health care costs. While scaring us with the idea of government bureaucrats being involved in our health care choices, opponents of real reform offer, as a solution, government bureaucrats deciding how much our lives, limbs and organs are worth when we loose them because a doctor made a mistake.

Health care costs are influenced, in part, by large sums of money awarded to patients or families of patients who have been injured, or killed by misdiagnoses or inept treatment. These awards compel doctors to perform “defensive medicine”, which includes excessive treatment and testing in an effort to avoid malpractice suits, and drive up premiums for malpractice insurance.

As we call for tort reform, we should be careful what we ask for. Fear of litigation saves lives because it compels doctors to eliminate possibilities that they might not otherwise bother with. It’s hard to call any of these efforts “unnecessary” or “excessive” because doctors don’t agree with each other. What one doctor considers excessive may be routine to another. All of those outrageous awards don’t happen because juries of regular Joe’s and Jane’s decide on their own that a doctor didn’t know what he was doing. They happen because another doctor takes the stand and tells them so. So, to avoid malpractice suits, doctors order tests and treatments that another doctor might think is necessary. One of those procedures might save your life, or might be the one that would have saved your life if we didn’t find a way to keep doctors from performing all those unnecessary tests.

Fear of lawsuits also causes extra diligence. We know, through revelations about car makers and tobacco companies, that benefits of cutting corners are weighed against costs of payments for damages, and the higher the costs, the more careful a company will be. And it’s not just “evil corporations” that are kept in line by fear of lawsuits. I know that fear of being sued plays a part, even if just small part, in making me drive more carefully. Fear works. It’s not that I’ll happily plow over a group of children playing in the street as long as I won’t get sued for it (teenagers, maybe, but not children); but a little self interest raises my attention level just a little bit. In some cases, that little bit might make a big difference. Certainly doctors are just a little bit more careful with the specter of a lawsuit looming in the distance.

Capping awards won’t save as much money as many people claim. There are many different reports out there each claiming different amounts that “could be” saved by capping awards. Phrases like “could save” sound like diet ads claiming how much you “could loose.” I’m sure we could save a lot of money in medical costs if we completely absolve all medical professionals for any liability. Less drastic measures would save less money. Beware of claims about how much money we “could save”.

Still, I’m not against reforms that protect good doctors from being punished. Medicine is complicated and we can’t expect that a doctor will never make a mistake. We shouldn’t ruin anyone’s life or scare good, competent people away from the field of medicine by awarding excessive sums in frivolous lawsuits. There are ideas for tort reform other than capping awards, which are more likely to actually make it into law. These have various advantages and disadvantages and are covered pretty well in this New England Journal of Medicine article. Capping awards will probably will not make it into law. But it will be a source of contention and blaming, and people will try to derail real reform by offering this unrealistic alternative.

Tort reform has it’s place, but we should not let it distract us from real health care reform.

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