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.

It is also estimated that 1.5 to 2 % of all cancers in the U.S. in the next few decades may be attributed to radiation from CAT scan studies.

It has been argued that the actual cost of medically unnecessary (but legally warranted) defensive medicine takes up to 9% of  total health care spending. Others place that figure as high as 25%; most physicians tend to believe the latter. Our congressional leaders and the president claim that it is much lower than even the 9%. The problem is that the true costs have been so co-mingled into standards of practice that we may never know the true number.

The frightening thing is that if we use the 9% figure, then 198 billion dollars is wasted each year. If we use the 25% figure, 550 billion dollars is flushed down the toilet.

Let’s get back to the true cost and what a victim of malpractice can expect. Approximately 12.1 billion dollars is awarded to plaintiffs each year. Approximately 40% goes to the plaintiffs’ attorneys or court costs, leaving 7.2 billion dollars to the victims. If we then look at actual health care expenditures each year and use the 9% figure of defensive medicine and documentation, then $26 is being spent for every single dollar that actually reaches the malpractice victim. If we use the 25% figure, then $72 is thrown away for a single dollar to go to the victim. The truth is somewhere in between. I’ll leave you to make your own conclusions about the motives for the trial lawyers fighting against any true tort reform.

Unless we get real tort reform, nothing Congress does will help curtail the runaway costs of medicine. We must decouple malpractice determinations from malpractice awards. There are many ways to do this, but this will be fought tooth and nail by the trial lawyers association. Physicians should adjudicate with lawyers and judges overseeing. If lawyers can oversee lawyers, then physicians can surely oversee other physicians. The British system is also an acceptable manner to deal with malpractice cases. Loser pays the court costs.

The bottom line is that the real victims of the current medico-legal system are the American people, and its time to play Howard Beale and say: “We’re mad as hell, and we’re not gonna take it anymore!”