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(HealthNewsDigest.com) – Evidence of “intellectual bankruptcy” according to a recent piece by Andrew Sullivan, the Republican approach to health care reform is a big business, pro-insurance, and anti-consumer refrain: “tort reform.” Capitalizing on the cynical view many Americans have toward attorneys and our system of justice, the “tort reformers” seek to pin our economic ills on the backs of lawyers and the lawsuits they prosecute.
But what about the baby with simple jaundice who is neglected overnight in a hospital and who suffers a massive brain injury due to the neglect? What about the sixteen-year-old girl who is killed when the blood bank mishandles her transfusion and delivers the wrong blood type? The fact is that 98,000 people are killed every year due to preventable medical errors but the tort reformers never discuss this because it complicates their simplistic arguments.
Our system of justice provides accountability and safety for all Americans by identifying negligent error and assigning responsibility for it. In this way, we are all safer knowing that our health care providers, like motor vehicle drivers, will be accountable for their carelessness. What’s more, our justice system helps defray the costs of medical error by shifting the responsibility for payment of those costs to the persons responsible for the damage. Removing accountability will not improve quality of care and will hardly, if at all, reduce overall health care costs.
Indeed, lost in this debate is the actual cost of the malpractice itself, not the cost of defending lawsuits or defensive medicine. The cost of malpractice I am referring to is the increased health care costs associated with medical error. Is the Congressional Budget Office adding up the medical bills of patients sentenced to a lifetime on ventilators, in wheelchairs, or in need of expensive surgeries due to medical malpractice? If 98,000 Americans die each year due to preventable medical error, how many of them endured high cost medical interventions as a result of the medical mistakes? How many more Americans survived the malpractice only to find themselves facing a lifetime of exorbitant medical costs due to the catastrophic injury they never would have suffered but for medical malpractice? According to a recent Harvard study, only 12% of injured patients or their families sue. This suggests that most often (88% of the time), private insurance or the government is left to foot the bill for the astronomical, unnecessary costs hoisted upon malpractice victims.
“Defensive medicine,” the claim that doctors order unnecessary tests and procedures — not to help the patient but to protect the doctor from a lawsuit — is supposedly causing massive increases in health care costs. The defensive medicine claim gains its sustenance from the notion that lawyers are greedy and lawsuits are shakedowns. But consider that the overall cost of medical malpractice lawsuits, claims payouts, and defensive medicine combined, according to the Congressional Budget Office, accounts for less than 2% of our health care spending. Tort reform, even if it completely eliminated lawsuits and defensive medicine, would provide very little in the way of savings. On the other hand, by removing accountability, and by forcing public and private insurance to pay the bills of those injured by malpractice, tort reform could actually increase costs in our health care system.
The tort reform argument is stretched to the point of absurdity when one looks at states where tort reform has actually been enacted such as Texas. Despite laws that stand as the model for America’s tort reformers, Texas continues to lead the country in out of control health care costs. Doctors are virtually immune from liability in Texas. Yet, in McAllen, Texas, as reported by the The New Yorker magazine recently, Medicare spent two times the national average for health care services. Here in Florida, under the leadership of then Governor Jeb Bush, we were the beneficiaries of similar tort reform, capping medical malpractice damages and otherwise limiting the ability to hold doctors and hospitals accountable. Yet Florida, like Texas, leads the nation in out of control health care costs.
Florida and Texas stripped accountability for medical neglect, removed their citizens’ legal rights, and delivered tort reform, in part to reduce defensive medicine. Did it work? No. Health care costs remain out of control in both states, while medical negligence and its consequences persist.
The question of lawsuits aside, the fact remains that costly medical errors actually produce profits for the health care industry as they produce a demand for services. Also, when doctors order multiple tests, and then blame it on the fear of lawsuits, who profits? As the Congressional Budget Office observed, “so-called defensive medicine may be motivated less by liability concerns than by the income it generates for physicians.” If we eliminate lawsuits, cap damages, or otherwise remove accountability from our health care system, who wins? And if we do implement yet more tort reform, and it does little to nothing to reduce costs, what have we done?
The intellectual bankruptcy of the Republican ideology is tied to the answers. The winners in tort reform legislation are the tort feasors, those who cause the harm and who would otherwise be accountable for their wrongdoing, in other words, hospitals, doctors, liability insurance companies, and big business. The real losers are patients and the health care system, as quality of care will lose its best monitoring device. We will have done nothing to curtail costs, and injured victims of medical malpractice, or our Medicare or Medicaid systems, will be left to pay the bill.
About Stuart Ratzan
Stuart Ratzan is founder and managing partner of Ratzan & Rubio, has successfully tried cases and resolved many of Florida’s most significant catastrophic injury and wrongful death cases. On behalf of patients and consumers, he has taken on some of the most powerful hospitals and insurance companies in the state. He has also won cases for countless consumers in catastrophic injury cases against property owners, trucking companies, consumer product manufacturers, automobile insurance companies and government entities. Ratzan’s practice includes personal injury and commercial litigation in state and federal courts.
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