Malpractice suits aren’t driving the high cost of health care
During a visit to an Alton hospital in 2005, former Gov. Rod Blagojevich signs a bill to cap pain-and-suffering awards in medical malpractice cases.
Plenty of reasons exist to support medical malpractice reform. Doing it to slow the dizzying growth in health care spending isn’t among them.
President Barack Obama fanned the flames of that long-simmering debate last week when he said he’d consider tort reform as part of his health care overhaul.
Exactly what he has in mind still is unclear. But it probably falls far short of a federal cap on malpractice awards that Republicans and physician groups support. The president spoke only of “demonstration projects” at state levels.
Whatever form those projects might take, few economists believe tort reform by itself — even the most radical tort reform — would significantly reduce what Americans spend on health care. Most experts say the big reasons for high U.S. health spending are chronic illness, expensive new medical technology and an aging population. Lawsuits are far down the list.
The most authoritative estimates put the direct cost of malpractice litigation — insurance premiums, lawyers fees and awards to injured patients — at about 2 percent of overall health care spending. Premiums make up about half of that.
With an estimated $2.5 trillion in overall health care spending this year, 2 percent is about $50 billion, not an insignificant number. But compared to other health care expenditures, it’s a drop in the bucket. For example, experts estimate we’ll spend as much as $830 billion this year on treatments that provide no benefit to patients.
Even the most aggressive tort reform wouldn’t save all of the direct costs. The biggest portion of malpractice settlements and jury awards are not for “pain and suffering” or punitive damages, but for actual damages — lost income and future medical treatment.
Meanwhile, insurance companies providing malpractice insurance are doing pretty well. Last year in Missouri, they paid out only $1 in awards for every $5 they collected in premiums. The number of claims in 2008 was the lowest in the 30 years.
Proponents of tort reform often say the real savings would come from reducing defensive medicine: If doctors didn’t have to worry about being sued, they’d order fewer unnecessary tests.
But there’s no agreement on how to define, let alone how to measure, defensive medicine. Some extra tests surely benefit patients; doctors aren’t always right in their diagnoses.
In any case, the changes most often prescribed by tort reformers — things like caps on pain-and-suffering awards or punitive damages — wouldn’t reduce the chance that doctors could be sued.
In states that have enacted some measure of tort reform, including Missouri, which limited so-called non-economic damages in 2005, health care spending is rising just as fast as it is elsewhere. It hasn’t declined in any state, no matter what legal reforms were put in place.
A 2006 report by the Congressional Budget Office found that there were no reliable studies that showed tort reform by itself reduced health care spending.
One point made by tort reformers is undeniably true: Some people awarded damages under the current system aren’t victims of malpractice; they’re victims of bad outcomes. Even with the best care, people sometimes die or suffer serious injuries. Those patients deserve sympathy, not compensation.
It also is true that many, if not most, victims of malpractice never file suit, often because the cost of bringing suit is more than what they could hope to recover. Those patients deserve compensation for their actual injuries.
Many opponents of Mr. Obama’s reform plans point to tort reform as a kind of silver bullet to reducing health care costs. Like many of their claims, the facts don’t bear that out.
I have to disagree with the above, as a doctor it is very easy to see the cost of defensive medicine. A simple example would be a patient admitted for pneumonia
doctor 1 : Does CT scan, consults infectious disease and pulmonologist: has virtually no chance of being sued ( defensive medicine)
doctor 2 : Does CXR and starts antibiotics, himself
both the above patients would likely have the same outcome, very small chance DR 2 might have missed something, and will get sued, but why take the risk?
by the way something most people don’t realize is the people who stand to lose the most from tort reform are actually doctors and lawyers.
The number of referral specialists would get would dramatically decrease if there was tort reform
Those who would give up Essential Liberty to purchase a little Temporary Safety, deserve neither Liberty nor Safety- Ben Franklin
Anyone who thinks immunizing doctors and hospitals from their responsibility to patients whom they negligently injure and destroy is going to benefit the general public is unrealistic (actually its pure idiocy). The issue in the current health care crisis is: How do we make sure affordable healthcare is available to everyone? In other words, how do we benefit the general public and not just the insurance and medical special interests?
You enact serious tort reform years ago as they did in most states. Therefore, you no longer have any high medical costs for patients just like they don’t in all 27 other states that have enacted tort reform right? You no longer have doctor’s prescribing so called unnecessary medical tests because they are afraid of being sued right?
Doctor’s will continue to prescribe so-called unnecessary tests (a/k/a “defensive medicine”) as long as they and their referral colleagues get paid for them. It’s been that way forever. Also, whether its a big suit for malpractice mistakes or a little one do you magically expect Doctor’s to become unconcerned with covering themselves all of a sudden because when they are sued with caps they will pay less? It hasn’t had that effect in the 27 states that have enacted caps. Is the AMA really telling us the tests weren’t beneficial and necessary for patient care, BUT WERE ONLY FOR THE DOCTOR’S OWN INTEREST, but that they exposed patients to them anyway and then “FRAUDULENTLY” told Medicare, Medicaid, and Insurers that they were medically necessary? Why aren’t they being prosecuted?
Wake up if you haven’t already. Doctor’s have always had excuses when getting paid for tests, being cut happy, generating more patient visits and “referring” to other doctors. I dare say that every field of employment suffers this. Now, the current/popular excuse by Doctor’s for this is that it is the lawyers’ fault for scaring us. But are they really scared since we already have tort reform IN 27 STATES or is this a golden chance to lessen their personal liability on a national level?
Bottom line: lessening medical responsibility (tort reform) will make the insurers more money and the doctors more money (just like it would anyone who no longer has to be fully legally responsible for their actions). If that is your goal then enact tort reform despite Ben Franklin’s above quoted admonition. Don’t however expect it to result in more or cheaper healthcare or some other benefit for the general public. You have absolute proof from 27 tort reform states that such will NOT occur.
WHAT WILL OCCUR when special privileges and immunities are granted to Doctors (i.e., placing them above the law and the rest of us) is that as these Doctor’s and Insurers make more profit, the under-compensated victims of their malpractices will be forced to resort to Social Security, Medicare, Medicaid, and other forms of welfare just as they are now in those 27 states with tort reform.
What will happen with Grassley’s (Bush’s) $250k cap is as follows:Hypothetical Example: 65 year old man, retired, malpracticed on and crippled and in constant pain; no lost wages, $500k in past and future medicals + 250k cap on non-economic damages. Maximum recovery under cap = $750k. Man says to insurer “Please pay me my $750 k”. Insurer replies “Why should we that’s the worst we can do in court (or in some medical malpractice board)”. Man says: “I want justice and goes to a lawyer”. Lawyer says: “Sorry, I would have to front $100k in costs on DOCTOR EXPERTS (required by law), Then, my fees for the 2-3 years of work, overhead and staff will be 1/3 or $250k. That will only leave you $450k to pay your medicals of $500k with nothing for you. Sorry, I can’t do you any good. Try to settle with them”. “Man says I already did; Guess I’ll just let Medicare and Medicaid pay it “.
Net result of caps = DOCTORS NEVER PAY FOR WHAT THEY DID AND DOCTOR’S AND THEIR INSURER’S REAP PROFIT. THE REST OF US PAY FOR IT. THAT IS WHAT IS HAPPENING RIGHT NOW IN 27 STATES WITH TORT REFORM.
You can’t have one size fits all or you don’t have justice, People are not numbers. They are people.
Insurance companies have sold everyone - INCLUDING DOCTORS - a huge bill of goods knowing it’s easy to blame lawyers - isn’t it?
By the way, Please note in the foregoing example that of the $750k allowed the patient, $500k goes to doctor’s and hospitals to care for the harm caused by the patient’s doctor and $100k goes to testifying medical experts. Don’t think the medical malpractice insurer’s don’t know what they are doing when they lobby so hard for caps.
Gee whiz, what was I thinking? Of course there are no problems that can’t be solved by the government take over.
With the government take over we will magically:
* Have shiny, sparkling hospitals.
* Nobody will die ever.
* Illegal immigrants will go home.
* Obama will find his birth certificate that the evil hospital was hiding from him.
To Jake,
Practicing defensive medicine should not be lumped in with tort reform, which usually caps damage awards in a law suit. A person damaged by egregious malpractice should be allowed to take a case before a jury. If a doctor cuts off the wrong leg, or leaves forceps in the wound, or fails to test for a blood match before transfusing the patient should be allowed to sue the pants off that doctor. And a jury should be allowed to decide damages.
Less than 5% of doctors are the cause of the vast majority of malpractice suits, yet they continue to practice medicine because most of these suits are settled out of court. No licensing authority hears these cases as a result. Maybe some of these are honest accidents that cannot be foreseen, but in all likelihood most should result in the doctor’s licensing being revoked. We revoke the licenses of careless and imprudent drivers, drunk drivers, etc. when is the last time you heard of a doctor’s license being revoked?
We can fix overcharging through defensive medicine, by using best practices treatment standards and by computerizing all medical records and doing more comprehensive medical histories. But you have to first get rid of the pre-existing condition clause to make patients be honest about all their conditions. If you want to cap anything, cap the profit margin of the insurance companies that are gouging us.
What you left out was the fact that only a tiny portion of medical lawsuits constitute those with over-large settlements but they’re the only ones we hear about. Another fact is, today’s Docs and Hospitals aren’t performing as well as people would like to believe and then, when somebody becomes a victim of malpractice and sues, the settlement is an out-of-court pay-out and the offending doc keeps his license and position in spite of being totally incompetent. They’d love to see tort reform that would completely relieve them of responsibility. What they really need is quack reform.
Over the weekend, Senator Claire described waste and abuse in Medicare as evidenced by all the ads for “scooter chairs: In other words, there are people who make businesses out of playing Medicare. One only needs to watch daytime TV for about ten minutes to learn that is also the case in malpractice suits. Having lived through this mess I can tell you you have only scratched the surface of what is done in the name of defensive medicine. It isn’t just the insureance premiums or unnecessary CT Scans (which I would suggest are not good for patients as maintained in the editorial–please tell me how unnecessary exposure to radiation is good for someone?), but the unnecessary recordkeeping, staffing, archiving, billing, training, all which only serve the purpose of not getting sued not healing a patient. For the life of me, I fail to understand the paper’s defense of the tort bar. Even the most hardened capitalist agrees our healthcare system isn’t perfect and could use some reform. Why don’t you see the same thing is true in the malpractice mills of America?
Everyone has to take part in Healthcare Reform except lawyers?
I’ll stand with Jake.
If I’m a doctor, why wouldn’t I order every test that could possibly apply just to make sure it doesn’t turn up in a court room that I coulda - shoulda?
it would make sense that this would be blocked, lawyers profit.
i don’t know tort reform from smort reform to be honest with you.
i think it does drive the premiums, and if it doesn’t why not? heh heh,
anyway what i actually do think is that a new court system needs to be formed removing these cases from the criminal dockets for 2 reasons.
1) an awful lot of dr’s and patients are repeat offenders without a central docket system it is too hard to find this out. all cases should be filed even if they are settled out of court. you can call bbb to get a recommendation on whether or not the store you want to buy your fridge from is legit but any doctor can hide his past? or patient for that matter, some people live off of lawsuits, ridiculous!!!!! this is at our expense
2) we have tons of criminals and we need the docket time freed up.
ok 3 reasons. as mentioned in this article, very few people realize the extent of what is going on here. caps are silly, jurys can decide that. what needs to be done is this stuff needs to be on the web. the central docket system of mal-practice should be posted on the internet for everyone to see and read. more information, more information, more information.
oops, my add is showing.
i have one more point (up to 4 now)
the medical specialists required for each case. i think the new court system invented in my head should not have like a judge but a congress appointed panel, or rather several actually. the medical experts should be on the panel not on the witness stand. and they should rotate faster. say one medical expert appointed to a panel actually only works that panel for perhaps 3 mo’s of the year. its too easy to pay an expert to back up your point even if you don’t have one. so for all fairness lets appoint our own experts.
To hel,
I believe most courts trying civil cases are separate from the courts trying criminal cases. Not that they aren’t all overburdened with too many cases.