Tort Reform

Of course, I am biased, I fully believe that it is rational to favor tort reform for medical malpractice.

Barack Obama magically believes in tort reform without caps.  How that works is beyond me.

But the public is largely supportive of tort reform  A Rasmussen poll shows that forty-eight percent (48%) of U.S. voters say it is too easy to sue a doctor for medical malpractice.  Only 19% disagree.

Also, Forty-four percent (44%) of all voters say the federal government should cap the amount of money a jury can award a defendant in a medical malpractice lawsuit. But 36% disagree and oppose caps on jury awards. Twenty percent (20%) are not sure whether caps are a good idea or not.

As a physician, I know that I am not a totally objective observer in this debate.  But here, let me make my argument.

Malpractice premiums are shooting up, especially in states that don’t have tort reform.  This is putting immense financial pressure on physicians.

Additionally, let me be clear once again. This is also a cultural issue in medicine.  Doctors in America, more than any other country in the world, practice defensive medicine.  We waste hundreds of billions of dollars with doctors overusing tests; but one of the largest reasons for overusage is not so physicians can make more money (although that is a problem as well), but that physicians would rather order an unnecessary test than get sued 1 out of every 100 times for not ordering enough tests.  There is a mantra in medicine which speaks to these:  ‘Better to spend your patients money now, than your money later’.

And all those other countries that Mr. Obama points to?  They have nothing close to resembling the tort system we do for malpractice.  The Wall Street Journal has an excellent piece on this that can be read here.

Litigation in the U.S. has at least four distinctive procedural features that drive up malpractice costs. The first is jury trials, which can veer out of control and in any case introduce significant uncertainty. The second is the contingency-fee system, which allows well-heeled lawyers to self-finance litigation. The third is the rule that makes each side bear its own costs. This induces riskier lawsuits than are undertaken in most other countries, such as Canada, England and most of Europe, where the loser pays the legal costs of the winner. The fourth is extensive pretrial discovery outside the direct supervision of judges, which occurs far more readily here than elsewhere.

The article then points out how other countries have similar rates of lawsuits…but much less costs.  Canada, for example, spends 10% of what Americans do on the legal aspects of medicine.  They point out that every system with national health care has signficant restrictions on medical malpractice.  And there are many states, including Indiana and Texas, where malpractice caps and other systems have reduced legal costs, without denying patients without a path for legal recourse.  Obama, in atownhall meeting on Wednesday, agreed that malpractice causes problems, but gave no solution to those problems other than he his promise to ‘continue to talk to doctors’ about the issue.  Doctors no longer want talk; they want action.

The Democrats simply don’t understand this, or don’t care.  Maybe it is their close association with the lawyers, I don’t know.  I presume that having lawyers in every top position of the Democratic party may have something to do with it, including the President and his wife.  But this is a fundamental piece of the puzzle.  Without significant tort reform, the cultural shift necessary in our health care system will not occur.  Additionally, vital support from organizations like the American Medical Associationwill be hard to come by without some realistic tort refrom.  I am willing to accept lower physician incomes, but it must come at some price, and that price is more reasonable limits on medical malpractice.