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The Truth About Health Care and Tort Reform

The Truth About Health Care and Tort Reform, Part III
Depriving citizens of the right to sue is more than unfair. Some tort
reform laws amount to violations of the 7th Amendment

Thursday, May 14th, 2009


Recap: This is the third post in a series. Part I explains that “tort
reform” — an idea being pushed by conservatives as the cure for many
economic problems, including high health care costs — has never
delivered the promised results, yet conservatives keep making the
promises. Part II documents how a cabal of extremely wealthy
individuals and family trusts has been able to manipulate public
opinion to sell “tort reform” to the public.


“Tort reform” proposals include a range of changes in personal injury
liability laws, such as caps on the amount of damages the injured
person can be awarded in a court. In a later post I will go into more
detail about the effect these caps have had on injured individuals.


I am not arguing that personal injury law in the U.S. is perfect, or
that it is never abused. Further, there are a number of thorny issues
that need to be resolved regarding specific types of claims, such as
mesothelioma resulting from decades-past asbestos exposure, if the
law
is going to be fair to both complainants and defendants.


My argument, however, is that before citizens allow state and federal
legislatures to reduce their rights to take grievances to court, we
all need to clearly understand the arguments being made for tort
reform. Some of those arguments have some validity, but many of them
are just flat-out false.


For example, recently Alan Miller, CEO of Universal Health Services,
Inc., wrote a “guest blog” for CNBC promoting tort reform. Let’s take
a look at his arguments.


Without much-needed reforms to limit jury awards for non-economic
damages, the cost of malpractice insurance will continue to rise.
That, in turn, will increase the exodus of physicians from states
without limits. And large jury awards make healthcare needlessly
expensive for all Americans.


This statement is partly true and partly not. It is true that where
states have put caps on non-economic damages awarded to juries, the
rates of malpractice insurance premiums have gone down. It is also
true that at least some states with lower malpractice insurance
premiums attract new doctors, especially those at the beginnings of
their careers. But are significant numbers of doctors with
established
practices packing up and moving to other states with lower
malpractice
insurance?


The American Association for Justice — yes, a trial lawyers’
association — looked at the recent “Physician Characteristics and
Distribution” report from the American Medical Association. The data
show no correlation between capping malpractice awards and attracting
more doctors to a state. In fact, “Using data from 2007, the analysis
concludes that states without caps actually have more doctors per
100,000 (319) than states that set limits (283), a difference of
13%.”


CEO Miller’s claim that large jury awards make health care needlessly
expensive for all Americans is simply not true. Medical malpractice
payouts are less than one percent of total U.S. health care costs.
See
also “Faulty Data and False Conclusions: The Myth of Skyrocketing
Medical Malpractice Verdicts” by Lewis L. Laska, J.D., Ph.D. and
Katherine Forrest, M.D., M.P.H.; and “Quick Facts on Medical
Malpractice Issues” by Public Citizen.


Miller continues,


Physicians from states without malpractice reform have either
abandoned or restricted their practices or moved to states with lower
rates for malpractice insurance. In either case, the result is that
residents of states that have not enacted tort reform have fewer
physicians to provide treatment, and have higher expenses for their
healthcare.


That’s a claim one hears a lot — that citizens of states that have
enacted “tort reform” enjoy better access to physicians and lower
costs for healthcare. But it is not true. Of the many states that
have
enacted tort reform laws over the past several years, not one has
shown reduced overall health care costs, or can even document that
health care costs have increased at a slower rate. Health insurance
premiums have continued to go up in these states.


Miller:


Malpractice reform will do more than lower costs for physicians. It
will help lower the overall cost of healthcare for everyone and help
physicians provide better care for patients.


A recent survey by the Massachusetts Medical Society and the
University of Connecticut Health Center revealed that among
physicians
surveyed, 83 percent reported that they had practiced defensive
medicine. That study showed that an average of 28 percent of tests,
procedures, referrals and consultations were ordered for defensive
reasons. The study also concluded that 13 percent of all
hospitalizations ordered by physicians were ordered for defensive
purposes.


You can find no end of studies that suggest tort reform ought to
reduce medical costs. The study cited above is a prime example. But
it
doesn’t happen. For example, a 2008 study by the MIT Quarterly
Journal
of Economics that looked at vital statistics of millions of births
concluded “it does not appear to be true” that tort reform reduces
“defensive medicine” cost.


Other studies that have looked at the results of tort reform say they
find no evidence that physicians change “defensive” practices.
Physicians may sincerely believe they would not order so many tests
or
procedures if they weren’t concerned about legal liability, but in
practice, it doesn’t happen. See also Jim Landers, “Malpractice
damage
caps not a cure for high health care costs,” Dallas Morning News,
April 21, 2009.


This is the kind of messaging I’m seeing lately from tort reform
advocates. They have seized upon the one measurable effect of tort
reform — that it lowers the cost of medical malpractice insurance —
and imply that all manner of other benefits must flow from that, in
particular lower health care costs and an improved supply of doctors.
But cheaper malpractice insurance is the only objectively measurable,
beneficial effect of tort reform that we can find in states that have
enacted it. The other effects amount to empty promises that are never
fulfilled.


By the way, CEO Miller’s company, Universal Health Services, Inc.,
enjoyed a 17 percent increase in first quarter 2009 earnings, at a
time in which many other businesses were struggling and going under.
Make of that what you will.


Barbara O’Brien
May 11, 2009


The Truth About Health Care and Tort Reform, Part IV
Depriving citizens of the right to sue is more than unfair. Some tort
reform laws amount to violations of the 7th Amendment — “In suits at
common law, where the value in controversy shall exceed twenty
dollars, the right of trial by jury shall be preserved, ….”


Tort reform puts limits on both the ability to sue and the amount of
damages the plaintiff can be awarded. People are told the reform will
reduces “frivolous” or “junk” lawsuits, which sounds grand. But tor
t
reform blocks legitimate lawsuits as well, ,and sometimes takes away
a
citizen's right to sue.


http://www.maacenter.org/blog/the-truth-about-health-care-and-tort-re...


Doctors KILL more than 250,000 Americans every year and we should
have
the right to sue them.
Or, should it be ,"an eye for an eye?"


See. http://www.suite101.com/article.cfm/chiropractic_health_care/64085


As scary as it sounds, it's true. According to the most respected
medical publication in the world The Journal of the American Medical
Association, the third leading cause of death in the US after heart
disease and cancer is doctor-induced or iatrogenic . Iatrogenic
disease is defined as disease induced in a patient by a doctor's
activity, manner or therapy; in short, it is a complication of
treatment. The article dealt only with deaths in a hospital setting.


The article, which reported on a study conducted at John Hopkins
University School of Hygiene and Public Health, was a follow up to a
study by the Institute of Medicine published in November 1999. The
statistics given are 250,000 deaths per year broken down as follows:
¨
12,000 die from unnecessary surgeries ¨ 7,000 die from drug errors
made in hospitals ¨ 20,000 die from other hospital errors ¨ 80,000
die
from infections obtained while in hospital ¨ 106,000 die not from
errors but from negative effects of drugs


This study does not take into account several other factors such as
complications and errors not resulting in deaths but which cause
serious illnesses requiring more tests, more drugs, more emergency
room visits and more surgery. Also not looked at are problems that
occur in non-hospital settings: walk-in clinics, doctor's offices,
private laboratories, etc. If these settings were taken into the
data,
the entire picture would be far frightening than it is.

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