2009-10-12

What Do You Think About When You Think About Tort Reform?

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Four Trials by John EdwardsImage via Wikipedia

Medical malpractice reform is now synonymous with the conservative party. Unfortunately, Democrats now oppose tort reform almost entirely, claiming that it will have little to no effect on "bending the curve." The traditional line of thinking on why liberals oppose this type of reform is that they are in bed with trial lawyers who would stand to lose the most money. (One of the many derivations of this belief can be found in the urban legend that John Edwards is to blame for the yearly influenza vaccine shortage, thanks to a successful lawsuit against a vaccine manufacturer. A story which is patently false.)

However, med-mal reform in Texas has resulted in capping economic damages at $250,000, yet multiple cities are still > 2 x's the national average on a medicare spending / patient basis (click here for a helpful refresher).


So What Are We Really Talking About Here?

The few doctors that I personally know indicate that defensive medicine is the real culprit and is also perhaps the hardest to quantify. Thankfully, Philip Howard over at The Atlantic explains that this is also consistent with what the President has heard from medical practitioners, and then offers up a solution:
Creating special health courts is the proposal advanced by most serious observers to eliminate the incentives for defensive medicine--including by consumer groups such as AARP, patient safety groups, medical societies such as the AMA and the American College of Obstetricians and Gynecologists, and by such thought leaders as Bill Bradley, Mark McClellan, Newt Gingrich, and David Brooks.

Anyone care to venture a guess who opposes this idea? You guessed it:
But special health courts are vigorously opposed by trial lawyers.

So in other words, this unfortunately will not be a part of any bill coming out of Congress. If you would like to know the full list of tort reform proposals actually are, I've gone ahead and found those for you as well. You can thank me later (click here for the full article):


  1. Special health courts - Supporters believe that the system will compensate more patients at a dramatically lower overhead cost (in the current system, almost 60 cents on the dollar go to legal fees and administrative costs, with an average of 5 years to resolution). Most importantly, by providing a system of justice that aspires to make rulings based on accepted medical standards, special health courts should substantially eliminate the need for "defensive medicine."
  1. Caps on damages - Over half the states have enacted "tort reform" limiting non-economic damages, generally capping "pain and suffering" at $250,000. But doctors can still be liable, when they did nothing wrong, for millions of dollars of economic damages... and doctors in states with tort reform still say they practice defensive medicine. By way of comparison, other countries in the western world typically limit non-economic damages...
  1. Medical screening panels - About 20 states have a requirement that malpractice cases be submitted first to expert panels. The panels have decidedly mixed reviews. The AMA recently released an article surveying their effectiveness.
  1. Safe harbors for following practice guidelines - The idea here is to insulate doctors from liability if they conform to accepted guidelines. There are two significant issues here: Dr. Jerome Groopman recently wrote about this issue in a piece for the Wall Street Journal.
  1. Early offer programs - This idea, originated by Professor Jeffrey O'Connell, encourages defendants to make an early offer of compensation--and encourages plaintiffs to take it because it limits attorney fees to 10 percent.
  1. Apology statutes - Several states have enacted laws that encourage doctors who have made mistakes to be open with patients, with the inducement that the apology cannot be used as evidence. It does nothing to help the doctor who is wrongly accused of making a mistake, however, which is the fear that drives defensive medicine.

The article even provides a handy chart which breaks out of the merits of each proposal, and analysis indicates that the special courts seem to be the most effective. Anyone care to guess whether or not Congress will include any of these proposals?

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