Ian Goldin
Ideology: Left-Independent | Writing from: Washington, DC

Last week, Politicizer Staff Writer Cynthia Meyer argued that tort reform, and not a public option, is the ‘real’ solution to health care.  This has been the rallying cry for Republicans and other opponents of health care reform for the past few months – it has become the ultimate non sequitur.  The Baucus plan, the bill currently being worked on in the Senate, doesn’t even include the dreaded public option that Republicans have whined so much about.  Yet, Republicans (including Cynthia) continue to claim that Democrats are not reaching across the aisle enough.  They want more compromise, despite the fact that the Baucus plan includes provisions for one of their biggest demands:  the ability to purchase insurance across state lines.  No matter what we do, the Republicans continue to obsess over tort reform.  Cynthia’s article claims that the Democrats won’t include tort reform because they have “succumbed to lobbyists.”  I find that laughable, seeing as the health insurance industry and other special interests have spent $380 million to back the Republican position and block reform in the past few months alone.

The real reason why Democrats haven’t included tort reform in their plan is because 46 States have already passed medical malpractice reform, and it hasn’t made any significant change in the cost of health care in those states.  Cynthia claims that the Texas reforms have been successful, but costs are so high that 42% of doctors have stopped treating Medicare patients.  According the CBO report that Cynthia cited so triumphantly, federal tort reform laws would only reduce health care spending by a half of a percent.  It doesn’t take a math major to understand that 0.5% is not a significant number.  There is no reason to bog down the health care reform bill with unnecessary measures that make up so little of the costs of health care in the US.

According to a report from the Center for Justice and Democracy, the State tort laws already in existence give doctors more legal protection from gross negligence than any other profession.  Some of these laws have actually been declared unconstitutional by State courts.  For example, Certificates of Merit are supposed to prevent frivolous lawsuits by making a plaintiff provide some proof as to why his case should be heard.  However, in some states, these certificates have been extremely burdensome to patients, and have prevented legitimate claims from being brought to court, which limits our right to a fair trial.

People love to talk about how malpractice suits are “jackpots” and “lottery winners.” That’s not just false – it’s offensive.  97% of malpractice claims involve a legitimate medical injury and 80% involve significant disability or death.  According to the Institute of Medicine, between 44,000 and 98,000 people die every year because of medical malpractice. I wouldn’t call that winning the jackpot.  The idea that malpractice suits are getting more numerous is another misconception.  In reality, the frequency of claims is roughly the same as it was in 1980.  Since the number of malpractice injuries have been increasing, but malpractice claims have not, that means the ratio of claims to injuries has actually been decreasing.  A possible cause for this decreasing ratio may be the existence of State tort reform laws, which did what they were supposed to do.  However, according to ProAssurance, one of the biggest liability insurance companies in the nation, trends are much the same in states with or without tort reform.
There is a lot of talk from Republicans about including things like damages caps, attorney fee limits, health courts, etc.  The problem is that these issues are too complicated to decide at the Federal level.  The saying is that “the Devil is in the details,” because many of them work in some states, but don’t in others.  That makes sense, because Medical Malpractice law is part of the tort law developed by different states over time.  It has never been dealt with by Congress except for political reasons.  Trying to impose Federal rules of procedure or substance on State courts has real issues with Federalism – it’s probably not even constitutional.  While creating a public option or expanding Medicaid may seem like an increase in Federal power, it is completely different from Federal tort reform – which would impose Federal law directly upon State courts.  Since when was that a conservative value?

Proponents of tort reform point to ‘Defensive Medicine’ as the reason that costs are so high.  In reality, nobody really knows how much defensive medicine is costing the system.  Costs aside, though, is defensive medicine really such a horrible thing?  One of the reasons tort law exists, in all fields, is to improve practices.  I would hope that our tort laws are making doctors weary of their own negligence.  What we should be blaming, and what are really driving up costs, are wasteful practices.  The way the health care delivery system is set up today is called fee-for-service.  This system rewards doctors for the volume of tests and procedures they administer to patients, instead of rewarding them based on outcomes or quality of care.  That’s the bigger problem.  If we address that, defensive medicine won’t matter.  Federal tort reform laws will not address the bigger problem of the fee-for-service system, so they will not cut down on waste, so they will not save us money.
While waste is definitely costing us, the most important reason costs are increasing is because of the lack of access to quality care in this country.  Poor communities don’t have the access to the high quality health care that well-off communities have.  When people don’t have access to quality care, they are more likely to be re-admitted to the hospital, which costs us more.  The sicker people are, the more strain they put on the system. 20% of seniors make up for 70% of the cost of Medicare.  We need to focus on that 20%.  We need to focus on those without health care.  We need to focus on those most in need, because they are costing us the most.  The problem with the current Republican plans is that they fail to address this issue.  HR 3400, which was put out by The Republican Study Committee, is an example of one of their plans.  It focuses on buying across state lines (which Democrats have given them in the Baucus plan), tort reform (which we have just shown would only reduce costs by 0.5%), cutting taxes (as usual), and not using taxpayer money to pay for abortions (which is completely political, and has no real affect on costs).  The whole plan fails to address the entire point of health care reform:  reforming the health care system.

We need a rationalization of health care. If we want to reduce costs, we need to reduce malpractice, not malpractice suits.  If we want to reduce costs, we need to increase access to quality care.