Where is Tort Reform in the Health Care Debate

tort reform

If I could find it I would post it.

In the meantime enjoy the political cartoon.

45 Responses to Where is Tort Reform in the Health Care Debate

  • Tito:

    Let’s not start with the lawyer bashing. 1) Why should doctors be immune from having to pay for their own acts of negligence. 2) As a resident of the State of Indiana where all medical malpractice suits have to first pass mustard with a panel made up of physicians and malpractice cases (no matter how eggregious) are capped at $1.25 Million, I can tell you that tort reform has no benefit to the consummer when it comes to medical costs. 3) If doctors don’t reimburse patients for the costs of their own negligence then who would you have take care of these people – the taxpayer? 4) Ask any military member or former military member about the wonderful medical care that they receive at the hands of doctors immune from malpractice suits.

  • Texas has had ione of the strictest tort reform regimes since the late ’80s. Hasn’t lowered medical costs for the consumer at all. It hasn’t lowered malpractice premiums for physicians. The only thing it seems to have accomplished is line the pockets of insurance companies (gee, guess who is pushing for tort reform as a solution?). And as awakaman says – why should docs get a pass? If you negligently hit someone with your car and injure them, you are fully responsible for all damages – why shouldn’t a doctor be responsible for any damage he causes?

  • Didn’t know tort reform meant no malpractice payments. Don’t read that anywhere. Wonder where it comes from.

  • Also having served in the military there are some bad docs there. Also a great many good ones. Some of the best I’ve ever worked with. Are lawyers completely free of blame. Not at all. But that would require opening eyes.

  • I don’t think anyone is questioning whether doctors should be responsible for actual damages — they’re questioning whether they should be responsible for punitive damages.

    But the commenters who’ve pointed out that tort reform hasn’t significantly lowered the cost of malpractice insurance are right — though probably wrong that insurance companies are getting their pockets lined all that much either. And indeed, I can assure you that doctors in Texas continue to practice defensive medicine, as my wife and I ran into with some frustration when getting ready for the delivery of our youngest.

    I’d guess there are two things at play here:

    1) The prevalence of astronomically high awards is actually not all that high. The real costs of malpractice insurance probably center around records gathering, legal representation, arbitration and fairly small settlements. So as long as legal action remains the primary way to solve possible malpractice, the costs of malpractice insurance will remain high. This is avoided in countries with centralized medicine by not having any malpractice claims system, and just providing the care to repair (as much as possible) any malpractice be free.

    2) Lawsuits aside, doctors really do want the best for their patients. As such, they tend to order up extra procedures which marginally reduce the likelihood of problems not just because they’re afraid of being sued, but because they do not want themselves to sit down afterwards and think, “If only I had done X, my patient would have been alright.” Given that they know their patients usually aren’t being directly hit by the cost, and that they themselves sometimes actually get paid a bit more as a result, there’s really no reason to not always insist on “better safe than sorry” even when we’re talking about a 0.01% improvement in likely outcome.

  • Actually, Tito, go ahead and delete my entire previous comment.

    I – as do many attorneys – enjoy a good lawyer joke, and think lawyers shouldn’t be immune from “bashing” when they deserve it. But there’s no need for me to tar with such a broad brush.

  • DC:

    I agree that some things do need to be reformed. As you said “punitive damages”. Also another is a trend to allow parents of adult children to be compensated for loss or injury to that child due to loss of love and affection. However, these are recent innovations. Tort cases have traditionally been meant to make the injured party whole for their loss not to punish or to compensate individuals for injuries that are purely subjective.

    Yes, there are some good doctors in the military, but there are also a lot of guys who are there unwillingly fulfilling an obligation they incurred as a result of the military paying for their education or contract doctors who are unable to get a job elsewhere. For example, at the base I was at in the Army we had a doctor we called “the world’s fattest Captain” since he was trying to eat his way out of the Army.

    Doctors like those in many other professions I’m sure start out young and idealistic. However,after a time the realization that one has to make a living (and preferably a good living) sets in and the business aspects of ones profession usually takes precedence – at least that’s my cynical world view.

    Finally, if doctors would properly police their profession this might not be an issue. How many times do incompetent doctors lose their licenses to practice medicine? Not very often. Whereas, dozens of lawyers are disbarred each year in Indiana alone.

  • That’s probably because there are more incompetent lawyers than doctors. :)

  • My experience with military doctors (and dentists) is that there are the base medical groups who deal with all the day to day issues of the base personnel, and the medical units which are attached to combat divisions and set up in the field. The former fall under the category of I have to do this because the army paid for my college, the latter are dedicated and highly skilled at dealing with combat wounds. I think the former is what you’d experience under Obama-care.

  • I would agree that some doctors are incompetent and fly under the radar – sometimes with other doctors looking the other way. Though there are plenty of review mechanisms both public and private (such as Morbidity and Mortality rounds at hospitals.)
    There is also the confusion of a judgment that turned out to be wrong and a complete error of judgment. Sometimes you do all the right things and the patient still goes south. We all die in the end even with the best medical care.

  • As for some doc’s just doing their time and others trying to get out, that’s true. Where I worked once a Navy doc finished his four year OB/GYN residency. Had orders to Okinawa. He didn’t want to go. The day after he finished his residency he marched into the CO’s office and announced he was gay (and in fact he was.) Got him out of orders and the Navy.

    Though a couple of months later he was working at the same medical facility as a civilian OB/GYN.

  • it hasn’t lowered malpractice premiums for physicians.

    that’s not true at all.

    Doctors: Malpractice Costs the Biggest Money-Saver in Tort Reform
    “Whole states are demonstration projects,” said Rep. Lamar Smith, R-Texas. “Texas passed tort reform in 2003 and … insurance premiums went down 30 percent. California passed tort reform and premiums went down 40 percent. Let’s enact tort reform. Let’s not just try that with demonstration projects. We already know it works. Let’s put it into law.”

    I suggest Rep. Smith knows what he’s talking about, perhaps you want to challenge his numbers? Also this from an actual doctor:

    When Texas passed tort reforms in 2003, medical malpractice insurance premiums went down and doctors started rushing back into the state. At least 10 counties that had zero obstetricians, for instance, now have one, and more than two dozen other counties have seen additional obstetricians seek licenses there.

    “We now have women that are getting their care in local communities whereas before, for their obstetric care, they had to drive hundreds of miles to be able to get it,” said James Rohack, president of the American Medical Association. “Before the reforms, there was such a shortage of obstetricians, many expectant mothers had to drive long distances for care. The liability reforms changed that.”

  • Fair enough, Matt. I thought I remembered reading it was “margin” improvement here in Texas — but 30% does not sound marginal. Thanks.

  • ps. and that’s just the cost of malpractice insurance, there’s also the huge cost of defensive medicine.

  • Insurance premiums in Texas are about at the national average (they are a little higher than average for individuals and a little lower for families). So if Texas is the model for tort reform, I think we’d have to conclude that it isn’t really a magic bullet.

    By the way, according to this report by AHIP, premiums are highest (both for families and individuals) in Massachusetts and lowest in Wisconsin. So if you want to use individual states as a model, a rough first approximation would be to find out what Wisconsin is doing, do that, find out what Massachusetts is doing, and don’t do that.

    I have no idea what is going on in Wisconsin. Massachusetts, on the other hand, looks a lot like ObamaCare.

  • The docs I know (my brother, brother-in-law, my parents, and their friends) do not seem to agree with that assessment – one reason they may look “statewide” is because county by county, there are vast differences in the insurance risks. A doc practicing in Dallas County is going to have a much lower risk, and therefore premium, than one practicing in Hidalgo county.

    The other big costs (as I heard from my national chain medical facility client) is the extremely expensive medical equipment they constantly have to purchase/upgrade.

    As for punitive damages, they have their place in the law (Ford Pinto, Dalkon Shield, etc.). Docs have not been particularly singled out, and there are many, many legal hurdles to jump over before you get to them. The real problem, which no one wants to admit, is the jury system. The jury, after all, is the one with (nearly) final say on liability and damages. And the jury is just a reflection of our own society – our average Joe.

  • Given the relative size of malpractice premiums versus total health care costs — it’s probably not surprising that even a significant cut in malpractice insurance costs would have virtually no impact on the cost of health insurance.

    Don’t have the time to research this, but recalling that Medicare spends a lot more per person in some regions than in others (based, perhaps, on cultural expectations and practices on the part of both patients and doctors) is is possible that a certain amount of the variance in health insurance costs by state is due to the same factors?

    Though certainly, I’ve heard good claims that state insurance regulations significantly drive up the cost of insurance in New York and Mass.

  • Comparing insurance rates from state to state is comparing apples and oranges. Aside from the cost of malpractice insurance, there are vast differences in the costs to doctors, and especially in the coverage levels required by each state.

    The claim is that malpractice insurance dropped 30%. Is someone saying that is inaccurate?

    As to the hidden cost of “defensive medicine” (including more of those fancy expensive machines), it would be much harder to find it. Look for things like the rate of c-sections, a common “defensive” procedure.

  • ps. it will also take time for defensive medicine to percolate out of the system, doctors like everyone else are creatures of habit, and they will tend to stick with what has worked, and been standard practice before. Tort reform is not a magic bullet, but it’s an important step.

  • I suppose, to be fair all around, tort reform is one of those things that we as conservatives like to bring up because although it may only decrease the cost of health care a percent (or an otherwise small amount) it seems like something worth doing right away because it seems like clear “wasted money”.

    And, of course, if one does a number of things that each help a bit, it will all add up in the end. (Heck, our dear leader informs us he can pay for his entire health plan by reducing waste, fraud and abuse of Medicare — so clearly everyone’s an optimist.)

  • The claim is that malpractice insurance dropped 30%. Is someone saying that is inaccurate?

    I don’t think anyone is saying this is inaccurate. The question, though, is whether it is significant. If the price of thermometers dropped 30% in Texas that would be nice, but it wouldn’t be significant in terms of the overall cost of health care.

    I’m not opposed to tort reform. I think our medical malpractice system is really screwed up. But I’m skeptical that this is really the source of high medical costs.

  • Though then you could drop payments to physicians that percentage that it compromises their costs.

  • Phillip,

    Malpractice insurance only makes up about 2% of health care costs. If you cut premiums by 30% and passed every penny on to the consumer, you could use your savings to buy a latte.

    Yes, yes, defensive medicine. Even if you take the absurdly high estimates of the cost of defensive medicine, you’re looking at less than 10% of the total (and if the costs of defensive medicine are several orders of magnitude larger than the problem being defended against that suggests that something else is going on).

  • Just pointing out that, given an average 55k price tag for malpractice for specialists, a 30% savings would be about 17.5k for a specialist. If you came out and said doc pay should be cut 17.5k for about a 8% pay cut for a specialist, many would say that would be a good start.

  • Phillip,

    Again, a 30% reduction in malpractice costs would amount to .6% reduction in total health care costs, or about $3.60 per person. Looking only at a particular subgroup where the percentage would be higher will only give you a false picture of things.

  • So reducing physician payments won’t significantly decrease health care costs?

  • Your point is not lost BA, but using the number of 3.60 per person (annually, right?), that’s a billion dollars a year. Nothing to sneeze at.

  • In case people didn’t pick up on it, Blackadder is lumping legitimate malpractice cost in with the WFA (Waste Fraud and Abuse) that is popularly believed can be easily eliminated. I hate to offer a WAG here, but I think it is well north of 70% of the costs malpractice insurance go towards care where malpractice has occurred. The lawyers will argue that it would be far more effective to reduce malpractice. The often analogize with compliments the building industry made about negligence and workcomp claims. The building industry eventually implemented for safety measures to reduce their risks.

  • with comments the building industry made… If they were compliments, I think they would have been heavily sarcastic.

  • Healthcare is a very labor and capital intensive business. Labor costs are the single largest expense for any hospital. You need a large number of highly skilled professionals around the clock to provide care. Then the equipment and persons to operate and maintain the equipment. Malpractice premiums are not a very big part of the picture, it’s just that hospitals hate paying for them (like most of us do) because insurance is not a productive asset – you are spending money on something you hope not to use, off of which you won’t make a dime. And health care tort reform (because I don’t see as much clamoring for other industries) seems the easiest place (politically) to make hay.

  • Awakeman,

    Been out and about so haven’t had the opportunity to respond.

    Though Donald and Jay have done a fine job on my behalf.

    I was thinking of the punitive damages that are handed out in most cases.

  • MZ is right that the 2% figure represents *all* medical malpractice expenses, not just those from frivolous or non-meritorious claims. Not only that, but as with the debate over administrative costs, there’s no guarantee that spending less on medical malpractice would translate into lower costs overall (since the threat of a malpractice suit can result in fewer injuries to patients).

    On the other hand, the evidence I’ve seen suggests that the current med mal system does a horrible job. According to an independent review, around 40% of successful claims didn’t involve negligence, whereas only around 2% of people who were injured by negligence even bring suit.

  • Here’s a link to a study on the results of malpractice reform in Texas:

    http://www.tlrfoundation.com/files/tlr_perryman_factsheet_final2.pdf

  • Again, I see no consistent empirical evidence supporting the case for tort reform

    So how does one punish a corporation for negligence? Money is what is given by law. If their are not punitive damages what is to prevent a company from continuing on with their negligence?

    Following is a GAO report on medical malpractice and could not find any evidence to substantiate the claims of lawsuits impacting health care costs, access to health care or defensive medicine (with one possible lose connection relating to OBGYN). But of course you will not see this report on any media outlet swinging left or right.

    http://www.gao.gov/new.items/d03836.pdf

    Remember the CBO report regarding the cost of a single payer system that we all grasped to support our arguments against a single payer system…

    Well, there is the CBO report which had this to say about tort reform:

    “But even large savings in premiums can have only a small direct impact on health care spending–private or governmental–because malpractice costs account for less than 2 percent of that spending.”

    http://www.cbo.gov/doc.cfm?index=4968&type=0#t3

    And of course there is Tillinghast-Towers Perrin (one of the largest in the world that provides risk management for the insurance and reinsurance industry).

    According to the actuarial consulting firm Towers Perrin, medical malpractice tort costs were $30.4 billion in 2007, the last year for which data are available. We have a more than a $2 trillion health care system. That puts litigation costs and malpractice insurance at 1 to 1.5 percent of total medical costs. That’s a rounding error. Liability isn’t even the tail on the cost dog. It’s the hair on the end of the tail.

    Of that 1 to 1.5 percent what portion of that is “frivolous”?

    http://www.towersperrin.com/tp/getwebcachedoc?webc=USA/2008/200811/2008_tort_costs_trends.pdf (Page 10)

    And then of course the report from Towers Perrin that states that the total tort cost in the US is 2% of the GDP. What percentage of that is “frivolous” and of that percentage what percentage is “frivolous” corporate lawsuits. So how much are “frivolous” lawsuits driving up the cost of everything? Maybe less than 2 cents on the dollar or maybe even less the 1 cent on the dollar?
    http://www.towersperrin.com/tp/getwebcachedoc?webc=USA/2008/200811/2008_tort_costs_trends.pdf

    http://www.robertsfight.com

  • 85% of the people say we need tort reform but yet those same people participate in this supposedly out of control justice system given to us by our founding fathers.

    Judges have more knowledge of the civil jury system than anyone.
    In a recent survey:

    * Ninety-one percent believe the system is in good condition
    needing, at best, only minor work.
    * Only 1 percent of the judges who responded gave the jury
    system low marks.
    * Judges have great faith in juries to solve complicated
    issues.
    * Ninety-six percent said they agree with jury verdicts most
    or all of the time.
    * Nine of 10 judges said jurors show considerable understanding
    of legal issues involved in the cases they hear.

  • Mark,

    sorry to point this out… But most judges are lawyers. As are most opponents of tort reform.

  • Matt,

    Don’t be logical.

  • True. I guess one could be cynical about the world. Yes, it is always the “others” that have bad intentions because they are indoctrinated with a false conscience. If that is the view we want to take then all corporations are evil and bad. They will add the cost of human life into their accounting ledgers and get away with as much as possible, child labor, massive pollution, etc…

  • “Your point is not lost BA, but using the number of 3.60 per person (annually, right?), that’s a billion dollars a year. Nothing to sneeze at.”

    Numbers mean nothing. I do not invest that way. Medtronics revenues last year were 14 billion dollars. That is a big number but it tells me absolutely nothing other then it is a big number.

  • “sorry to point this out… But most judges are lawyers. As are most opponents of tort reform.”

    And so we should believe what the insurance companies and doctors tell us because they are good. No. This discussion needs empirical analysis. Unfortunately we all let our egos filter the world we live in and let our exaggerations drive our anger and hate. There seems to be no willingness on the part of society anymore to discover the truth. We all back into our own tribes and camps and blame what is wrong with this world on the “others”.

    We humans have not changed much in the last thousand years. When we start to fear the future we all start to herd up again and cling to our deepest roots, our “tribes”.

  • Mark,

    No. This discussion needs empirical analysis.

    exactly, and the personal opinions of judges do not qualify as empirical analysis.

    ps. you are a lawyer, aren’t you?

  • I agree, the survey of judges is a starting point and at least tries to counter the statements from the right. It uncovers more questions which is good because that is how truth is discovered. The empirical evidence points to 2% of the GDP or 2% of total health care costs. Those are the facts.

    There are many exaggerations regarding tort reform and they are pumped up everyday by the media, both left and right and no one is challenged to “show the beef” in any statement that is pumped out of the media, left, right, drive-by, or car chase media.

    Is it possible that doctors are more afraid of being sued then the actual probability itself? Is it possible that because insurance companies have to cover there investment loses that lawyers are an easy target because we all hate lawyers? Complicated issues that unfortunately liberal and conservative media is not capable of handling or that we are not willing to demand from our media.

    No, I am not a lawyer. I am a father trying to discover what happened to my sixteen year old son. I have spent the last six months informing myself on these issues. The Reigel v. Medtronic Supreme Court ruling killed that chance for me. The Supreme Court said that if a medical device was approved by the underfunded politically controlled, money influenced FDA then a person can not sue a medical device manufacturer. What I do not understand is that this ruling took away a state right. It removed one of the few powers left to an individual to fight corporate money and influence and Republicans support this ruling. It tells me that Republicans/conservatives are more concerned with corporations then the individual rights. It tells me that Republicans/conservatives are more like Democrats, more concerned with the benefit to society then individual rights.

    Or maybe this is more about pulling the funding legs out from under the Democratic party. I believe we are to the point where we are so partisan that we just oppose good ideas and support bad ideas because we believe anything the “others” are doing is destroying all that is good. We find security in our “tribes” and fight the other “tribe” because we are told they are the enemy out to destroy all that is good in the world.

    I am a big believer in states rights. And while not perfect, I am a big believer in the court system and juries. I am a big believer in the capability of the ordinary individuals finding the truth and determining justice. As I have said earlier we seem to have lost out passion for discovering the truth.

    I have nothing left but memories of my son. This is a fight that I am willing to dedicate my life to. He is my son and I am his father. Fathers fight for their children. If someone put their greed over his life then I will seek justice. If they could be put in jail I would be fine, unfortunately money is what the law gives me.

  • Regarding the link Phillip provided:http://www.tlrfoundation.com/files/tlr_perryman_factsheet_final2.pdf

    It seems doctors just do not want to be responsible citizens like the rest of us.

    “But it’s not all sweetness and light down on the border. An 11-hour hearing in the Texas Legislature last fall featured “angry, frustrated doctors from Houston to Laredo” venting about ” overzealous oversight” by the Texas Medical Board, the regulatory body that got beefed up to safeguard Texans from bad docs when the malpractice curbs were enacted, the Houston Chronicle reported. Complaints to the board have increased dramatically, and disciplinary actions against docs has nearly tripled since 2001. ”
    http://blogs.wsj.com/health/2008/05/19/doctors-flock-to-texas-after-tort-reform/

    Or maybe they are not getting the doctors they want.

    “Want to know what else has gone up? Patient complaints and actions against doctors by the Texas Medical Board.”
    http://www.newyorkpersonalinjuryattorneyblog.com/2007/10/texas-tort-reform-and-new-york-times.html

    Texas”Tort Reform” a Disaster for Citizens
    http://www.commondreams.org/news2004/1025-14.htm

    http://www.robertsfight.com

  • Actually doctors are afraid of being sued wrongly. The rhetoric you provide comes from hurt. There is value in that. But not empirical evidence. I am sorry for your losses.

  • Yes, part of my rhetoric comes from pain, but I am a big believer in what our founding fathers gaves us. There is a reason they gave us trial by juries. And besides how do I know your rhetoric does not come from hate or anger or some experience in your past that filters your view of the world? They gave us juries for that exact reason. They gave us this great Democracy for that same reason. They gave us the free markets for that same reason. You either believe in wisdom of the crowd or you do not. If you do not believe in juries then how can you believe in the free market or this Democracy. Tort reform is government interference, plain and simple.

    The question is are doctors afraid of being sued because of hype or the probability? That should drive the solution.

    Did Texas reform really work? That is open for debate. What is that great conservative of Texas, George Bush did to contribute to the hype?

    “Another matter which is often not discussed was that Texas passed a series of reforms in 1995,” Opelt said.

    He was talking about the previous tort reforms, passed under then-Governor George Bush. A companion bill ordered five years insurance rate drops. The drops were significant. According to a Texas Department of Insurance (TDI) report , the cost of Medical Malpractice Insurance for doctors was 21% lower than regulated insurers wanted in 2000. For hospitals, the state ordered rates reduced by 24%.

    Opelt said, “About the time the rollbacks were lifted was the time the rates really began to spike.”

    …Tort reformers themselves admit prior tort reform was at least part of the reason that insurance rates spiked.”

    http://www.krld.com/topic/play_window.php?audioType=Episode&audioId=2215113

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