The Basis for Tort Reform

Over the past several years it has been reported that "medical mistakes" kill more Americans every six months than the number of Americans that died in the entire course of the Vietnam War. Medical error is the fifth leading cause of death in this country.

This has been the basis of the arguments from trial lawyers, who feel that it's their solemn duty to protect the American people from such crimes as medical malpractice. These assertions are based on a report from the Institute of Medicine, which claimed that medical errors are responsible for between 44,000 and 99,000 deaths each year.

This report was yellow journalism at best, and journalistic malpractice at worst. The threat of legal liability is considered by some, especially the trial lawyers, to be critical in ensuring patient safety.

Before I begin my argument for real tort reform, let me first state, unequivocally, that true victims of medical malpractice must receive compensation. No one is arguing against that.

As a clarification, this Institute of Medicine study, which stated the number of deaths from medical errors, was not a study. It was a reinterpretation of two older studies. Those studies included post-operative infections and bleeding in their formulation. These are known, accepted complications of any surgery. That's like suing nature and God for someone getting cancer or diabetes. There are many more glaring deficiencies in that report as well, raising serious doubt as to the validity of the assertions made.

Physicians alone pay some 19 billion dollars a year in malpractice premiums. The argument by the Obama administration and the leaders in Congress is that the U.S. malpractice system is only a small contributor to the high cost of health care. This is completely false. This view blatantly fails to take into account the cost of defensive medicine and defensive documentation. As an example, more than a third of 1,600 physicians (36%) admitted that they would order an MRI that was not warranted if a patient with back pain requested one. Another example is CAT scans, of which more than 62 million are preformed annually. About a third are estimated to be medically unnecessary, done primarily for medico-legal reasons.