President Obama took an important step away from special interest politics when he committed to changing justice to solve the problem of defensive medicine in his address to Congress. "I've talked to enough doctors to know that defensive medicine may be contributing to unnecessary costs. I know that the Bush administration considered authorizing demonstration projects in individual states to test these ideas. I think it's a good idea, and I'm directing my Secretary of Health and Human Services to move forward on this initiative today."
The wires were abuzz this morning over what he really had in mind. The trial lawyers will try to limit the damage with some sort of program that doesn't limit their ability to make emotional arguments to the jury. But restoring trust in justice--the only way to eliminate defensive medicine--requires consistency and reliability. That means standards of care need to be decided as a matter of law, in written rulings that all can see, by a court that knows what it's talking about.
Because modern medicine is so complex, reliability almost certainly requires some kind of special court. This country has a long history of such courts, such as bankruptcy courts, and it's hard to imagine an area of society in greater need of special judicial expertise than health-care. That's why a broad coalition has come out for pilot projects--including AARP, the AMA, the American College of Obstetricians and Gynecologists, the Joint Commission on the Accreditation of Health-care Organizations, and many others.
That's what the American people want as well. Today, Common Good and the Committee for Economic Development released a survey that showed an astonishingly high 83 percent of voters want Congress to address reform of the medical malpractice system as part of any health-care reform plan. Moreover, even though the survey found that most Americans generally favor jury trials, for health-care disputes they overwhelmingly support special health courts--an extraordinary 67 percent support a new court system for health-care.
In a recent New York Times op-ed, Senator Bill Bradley called on Congress to make a basic trade--universal care for Democrats in exchange for reliable justice in the form of special health courts. This sensible approach now looks possible, if only congressional leadership can pry its hands loose from the spigot of trial lawyers.
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Philip K. Howard
Copyright © 2009 by The Atlantic Monthly Group. All rights reserved.
I imagine the only way that will happen is if they are given some other spigot to grasp.
Yes, please, let's move forward with some universal tort reform, but let's not be fooled into thinking it will actually lower health care costs in any significant way.
The CBO has stated that malpractice costs account for less than 2 percent of health care spending.
We've also seen real examples of tort reform's ineffectiveness in lowering costs through states that have passed strict tort reform laws. Texas, for example, has a $250,000 cap. Despite this cap, Texas has some of the most expensive health insurance costs (and rising) in the country.
I will say, however, that there is evidence that tort reform in Texas has made it easier for doctors to practice in the state. But costs going down? Not so much.
And even without these facts, you really can't make a logical argument that tort reform will limit "defensive medicine". Whether it's a $10 million payout, or capped at $250,000, a doctor is still going to practice CYA and order that extra test even when it's not necessarily needed. Tort reform is not going to change that kind of behavior.
Again, I'm sincere when I say I welcome tort reform, but for people who think it will help lower costs in any meaningful way... the evidence is against you.
The current medmal system is woefully inefficient, with only 39 cents on the dollar going to claimants. Find out more at www.healthcaretownhall.com/?p=1599
I would urge everyone including the authors and editors to go read their health insurance policies. We already have very strict tort reform in most insurance contracts. The health insurance policy itself contains a binding arbitration provision that very often INCLUDES claims of medical malpractice. That is much more tort reform than anyone would expect and it arises directly out of the contract.
Go check your insurance policies; this argument has become moot.
GRK
I am sorry but you are wrong. The insurance policy protects the insurance company and not the doctors. Because of the insurance policy is almost impossible to sue for denied coverage for treatments. The arbitration applies only to the insurance company.
As a physician I can certainly support Paul’s point that putting a cap on insurance payouts will have little effect on defensive medicine; a $250,000 lawsuit is feared just as much as a $10 million lawsuit.
And it is foolish to expect tort reform to reduce medical costs by more than a couple percentage points (though that adds up with a $2 trillion health budget).
The British have a nice system in which best practices have been established for assessing patients with various problems, for example head injury after a fall. If a physician follows those guidelines, he is immune from a lawsuit arising from a missed injury. (The patient will of course receive whatever care is needed at no cost). Many physicians in the US would be enthusiastic for that type of protection, but it would be hard to implement without a single-payer system.
I feel that doctors cannot have both a lawsuit-free environment and the freedom to practice without significant oversight. If we continue to reimburse on a fee-for-service basis in a multi-payer system, then we will have to accept the threat of lawsuit as a cost for practicing in that environment. If on the other hand we wish to substantially reduce the right of a patient to sue, then we physicians must do much more to ensure patient safety and good quality of care at a reasonable price.
Randy MD, FACS
I practice in a state that recently put caps in place and it has made a real difference in the number of law suits. With caps in place the economic gain vs cost ratio changes for plaintiff attorney and the new low value suites do not take place. When docs see an environment with many fewer suits, the fear of law suits also recedes. Defensive Medicine is not an all or none phenomena. There are degrees based on a physician`s assessment of his risk. If he sees an environment, in which he sees many of his fellow physicians become defendants and he himself may have been named in a law suit he will avoid high risk patients and ratchet up his work-ups. Competent physicians who have faced law suits and are concerned about loosing their malpractice insurance often over react.
The single payer system will remove unnecessary billing different insurances, as all different insurances have different plans. It will not protect from malpractice law suits. But if we do a reform in which any attorney who looses law suit pay for all expanses and any patient who wants to do a law suit, pays for attornies fees first will say a large number of frivilous law suits. The contigency basis of different attornies, where patient has to pay nothing till he/she wins, gives unnecessary law suits.