Tort Reform in Health Care Plan

California Representative Darrell Issa writes an editorial at Politico emphasizing the importance of including tort reform in any health care legislation, especially one that can even be remotely considered bipartisan. Many of my liberal friend like to pretend that tort reform won’t change health care costs, and some pretend that Democrats are actively supporting tort reform already. Neither of these are true, and tort reform is probably the only real issue that can lead to any amount of Republican support on Obamacare.

From the article:

Defensive medicine — when doctors order unnecessary and usually expensive tests and procedures in order to avoid lawsuits — is a major contributor to skyrocketing health care costs. As much as $210 billion is spent on defensive medicine annually — equal to $700 for every U.S. man, woman and child. This helps drive up insurance premiums that are already too high for many Americans. And the excessive malpractice litigation inevitably leads to physician shortages — especially among obstetricians, neurosurgeons and emergency room physicians.

Fewer doctors mean reduced access to medical care for everybody. New Jersey, for example, will be short 2,800 family doctors and specialists by the year 2020, according to a recent report from the New Jersey Council of Teaching Hospitals. The reason for the shortage, council President Richard Goldstein says, is a “morale problem” because of the state’s “hostile” environment for doctors and the heightened threat of malpractice lawsuits.

As long as out-of-control malpractice premiums are built into medical costs, many will never be able to afford coverage. Shamefully, it is estimated that the cost of defensive medicine and the associated liability-based medical care costs account for at least 3.4 million uninsured Americans.


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  1. #1 by Mark Baird on Wed 03 Mar 2010 - 22:29

    Where is his data to support his claims. Before we start taking the rights away from the common man should we not have a good debate regarding this? It is funny how the common man, Americans, are not capable of being on a jury making intelligent decisions about what behavior is good and bad for their community. We probably should not let them vote or participate in the stock market or the free market because big government with a national cap needs to protect the people from themselves. National tort reform seems like such a strange beast to come from the mouth of conservatives.

    • #2 by The Republican Heretic on Thu 04 Mar 2010 - 08:25

      I’m not sure why you’re equating tort reform with a national cap. I’m also not sure about your straw man about keeping people from voting or being on juries. You seem to underestimate how all the rhetoric out there about corporations, and especially insurance companies, being evil, and how much that impacts what level of damages people will seek in these kinds of cases. Lawyers will intentionally go after targets with deeper pockets, without considering that said cost will eventually effect everyone in the system.

      My biggest concern is the practice of “defensive medicine,” which can raise health care costs unnecessarily, and for a large part prevents patients from making more informed decisions, as doctors assume that patients cannot be educated about their options.

      From the article:

      Moreover, the current system is studded with irresponsible lawyers’ fees associated with malpractice claims that do not involve injury or medical error. A large share of the awards goes to pad the pockets of plaintiffs’ attorneys. Recently, the Manhattan Institute concluded that approximately 10 cents of every dollar paid for health care services goes to cover malpractice premiums, defensive medicine and other costs associated with excessive litigation.

      I don’t agree with the notion of caps in tort reform. I also think that tort reform is something that only incidentally affects health care, and is a much bigger issue in our over litigious society. I think that a loser-pays system, at least in part, would help considerable, since in many cases people will settle simply to avoid the costs of defense. I don’t think that this would affect people with valid grievances, and I’m a firm believer that people who are liable, especially for medical malpractice, shoudl be held accountable.

  2. #3 by Mark Baird on Wed 03 Mar 2010 - 22:32

    Are you not “Concerned with reducing government influence in people’s lives and fighting the paternalistic progressive aristocracy.” If you are then why would you want the federal government to be involved in the state tort laws. Would you not want the citizens of the state and local communities to determine their own path, to determine what is acceptable risk and what is not?

    • #4 by The Republican Heretic on Thu 04 Mar 2010 - 08:19

      Actually, that’s a good point, and one that Andrew Napalitano has made. Tort reform would be best done at the state level. There are several federal regulations that would need to be considerd, though, but by in large most of the relevant laws would be at he state level.

  3. #5 by Mark Baird on Thu 04 Mar 2010 - 21:37

    “You seem to underestimate how all the rhetoric out there about corporations, and especially insurance companies, being evil, and how much that impacts what level of damages people will seek in these kinds of cases.”

    I agree. There is a lot of rhetoric out there on both sides. People are driven by their egos, both you and me. For this very reason it is extremely important to start all discussions of policy with sound statistics.

    Let’s look at how a tort trial typically works. The injured party has a lawyer (you know, the “bad guy”). The doctor/corporation/defendant has a lawyer (or lawyers). There is a judge. And then there are twelve (sometimes six) ordinary citizens. – the jury.

    The injured party’s lawyer has a chance to tell his client’s story. The lawyer(s) for the doctor/corporation/defendant has a chance to tell his(their) client’s side of the story.

    The judge tells the jury what the rules they have to apply to the case are.

    Then the jury makes a decision.

    It is this last group of people the Republicans are really complaining about. They are the ones deciding whether to award money to the person who claims s/he was injured.

    But to hear the Republicans tell the story, you would think that there is only one lawyer in the courtroom (the injured person’s lawyer), the judge is asleep, and the injured persons’s lawyer is sitting with the jurors as they deliberate, telling them what to do.”

    I am suing one of the largest companies in the world. There is a $400,000 cap in the state of Minnesota. They have the resources to break my attorney because of these caps. Of all the attorney’s that I contacted I could only find one and I contacted some of the biggest firms in Minnesota. Why did they turn me down? The difficulty of these types of cases and the $20 billion in annual revenue of this company.

    Was their fraud or negligence on the company’s part? It smells like the company broke the law but that takes money to prove because you have to go through discovery (spend money) and then you have to present the evidence in front of a judge who can allow the case to proceed or not in Minnesota.

    And then if we do go to trial the burden of proof is on me. I will have to go against a group of people that even after jury selection will all have prejudices that one must get past. In the era of “tort reform” and the “justice system out of control” defendants win more of their cases then the hype in the media tells.

    Democracy and the justice system are not efficient nor are they perfect. I would say the burdens on a plaintiff bringing a case to court is far greater now then at anytime because of these caps.

    I believe like everything in our lives there is far to much hype and fear about things in life. The 24 hour “if it bleeds it leads and if doesn’t find a knife
    cable news is worthless. I believe in the wisdom of the crowd and I believe in people.

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