Is Tort Reform the answer to solving the liability crisis?

Unless something happens very soon, we will witness the terminal unraveling of health care in America. The nation is witnessing the final step in the decades-long decline of the once best health care system in the world. One can only stand in wonderment as we watch the political lemmings run headlong towards the long drop from the cliff that has become the health care reform movement in the government.  ObamaCare as it has come to be called  is a poor excuse for a health care reform attempt.  The reader is encouraged to visit the issue on this website about 10 reasons why we do not want ObamaCare. The bill is replete with programs that have already failed el;sewhere and before.  There is not one new innovative initiative to bring health care to everyone or solve the huge cost to the government. 

The political football at the apex of the fracas is tort reform. Democrats are not anxious to include this in any bill because of the monumental donations they get from the Trial Lawyers Association. Republicans are still placing their hopes on tort reform, but as you will read, it is not the panacea people think it is.

So is tort reform the cure or the poison pill? In reality, it is only a palliative step to overcome the tragedy American health care has become.  Has tort reform really resulted in savings on liability premiums? NO!  Has tort reform resulted in cheaper health care costs? NO!   The simple reason is that while the number of malpractice suits has dropped somewhat in states that have instituted some type of tort reform, it has not resulted in the cost savings everyone is seeking. In my own state of Ohio, during my nearly 40 years in some form of employment in health care, tort reform has been overturned at least three times. Likewise many other states have overturned various forms of tort reform. So, an activist judge can turn the whole system topsy-turvy at any time. The problem is that every Representative and Senator as well as our Harvard Law School trained President knows this. 

We cannot have some states with tort reform and others without. We cannot have some states with “better” tort reform than others. Tort reform at the federal level has no advantage for at any time, a judge can overturn tort reform and send health care sprawling. Once that happens, whatever savings our political leaders claim to have counted on will go back to square one. Tort reform really is only as good as who sits on the bench. One might ask why we are even looking at this tactic as an answer to the health care crisis. The answer is that we should not. 

Perhaps I am the only doctor in America that does not want to see tort reform happen. This time, the lawyers are correct. We should not be tampering with the public’s Constitutional Rights. It simply fails to solve the problem. It will not encourage or require doctors to practice better medicine. Doctors practice “defensive medicine” which results in towering costs to the public by ordering additional and frequently medically unnecessary tests to try to keep from missing something that could result in a law suit. My state of Ohio has enacted tort reform. As in other states, Ohio’s version has resulted in only mild reductions in the punitive malpractice premiums doctors are paying. Furthermore, it has not reduced our health insurance premiums.  They are skyrocketing.  My own health insurance company, Aetna, has not provided me, a doctor, one penny in increased wages but several times over the past 15 years, they have hit me with monumental increases in premiums.  This year they are raising my premiums 33%.  If they are not giving pay raises to the doctors by what right to they claim to raise premiums 33%?  So tort reform has failed us in Ohio from the standpoint of trying to bring health insurance premiums down to reasonable levels, and my libility costs are still outrageous. It has resulted in a mild reduction of the number of malpractice suits that are filed, but the real reason the frivolous lawsuits have declined in Ohio is that the liability carriers have decided to fight virtually every claim in court.  That makes it much more expensive to file a claim for anything that could reward them less than 6 figures.  . However, and more importantly, like everywhere else in the country, tort reform has failed to eliminate defensive medicine practices and the overwhelming costs. 

A colleague shared with me a story of a friend who visited an Emergency Room a while back  because he could not get a timely appointment with his family doctor, another bomb crater in the war on medicine in America. He had a headache. The days of “take some aspirin and call me in the morning” are long gone. Before he was discharged from the Emergency Room, he had, among others, a full raft of blood work, x-rays of his skull, a CT scan of his brain, an MRI of his chest, and a spinal tap. His bill came to $18,000 – for a headache. My colleague phoned the treating doctor and was told, “I have been sued four times over headaches and that is never, ever going to happen to me again!”  Every test that was run represents something that can cause not only a headache, but some serioud underlying problem that could cause injury or death to the patient. The doctor is no longer allowed to trust a physical examination to initiate a treatment plan or observation. Without documentation that shows the doctor took some action to search for every possible cause of a headache no matter how trivial or how expensive, the threat of a lawsuit prevails. Are we to now pay $18000 for every headache?  This is only one diagnostic category.  I hope the reader can see the reason why health care is so expensive in America. Then what do we do with the people who go home and develop one of those problems that could have been discovered with $18,000 of expenditure.  How much are we willing to bargain our lives for?   So, for now,  we pay and we pay and we pay.

That, my fellow Americans, is defensive medicine. It has not been controlled either by tort reform or by ethics committees in the hospitals. Doctors will not intervene in the process lest they suffer the same fate. Senator Orrin Hatch said in the past on television interviews that savings of up to $41 billion could be realized over the next ten years with limits on medical malpractice suits. Senator Hatch stated he thinks it is “probably closer to $300-400 billion.”  $300-400 billion per year and higher are more realistic figures as doctors continue to promote the defensive medicine philosophy “if you think of it, then do it.” In the same breath, Senator Hatch talked about tort reform as the answer. Tort reform might just save $41 billion, but a sensible reorganization of how liability is handled can result in vastly greater savings and greater protection for the public from an adverse outcome of their health care without limiting or eliminating anyone’s constitutionally guaranteed right to sue.

Every conservative pundit barks about tort reform and liberals whitewash it. Unfortunately, America’s doctor corps offers no real help. While channel surfing I ran across a videotaped program with Glenn Beck in a studio full of doctors. Remarkably, my feelings about my own colleagues were reinforced as it became readily apparent that members of my own profession are as out of touch as our political leaders. They mentioned “meaningful” tort reform. They are rightfully dismayed because they frequently are blamed and sued for adverse outcome that is not their fault. While only 5% of malpractice actions result in a win for plaintiffs, doctors are unfairly saddled with the cost of the entire liability in the system. Those costs are simply driving more and more of our doctors out of medical practice while defensive medicine is breaking the system financially. Our most significant piece of the nation’s infrastructure is simply withering in front of our eyes. Tort reform is not going to save our doctors or the rest of us for that matter. 

Congress needs to step out of character for once and do something meaningful and not political. The first step is to realize that health care reform will mean nothing if a doctor cannot look at a person and see a patient rather than a potential litigant. Congress sees health reform as a political answer when the point of failure is at the doctor-patient and service-reimbursement level. Too many people have their hands in the money pot and it is not flowing to patient care. 

Congress needs to recognize that physicians have never conducted their profession within written standards. They rely on the failed system of “care provided in the light of generally accepted standards at the time, place and in the context of care delivered.” That description is the pivotal argument in every malpractice trial. That statement describes health care whose standards can change depending upon several circumstances. What results is the same condition can be “treated” in several different ways rather than choosing the one and only right way to do something. In addition, it means that more than one outcome could occur in the court. The standard of care “snapshot” that each and every legal result represents is not a mandate for the correct way to do something. Multiple outcomes for the same problem send mixed messages to doctors as to how to really treat something; if they even hear of the verdict. The medical profession should be encouraged to write standards of practice like every other profession. When physicians act according to their own rules they precisely define what is and is not malpractice. If we follow this model with a yearly review of the results from uniform treatment on a national scale it will force changes in protocols that ultimately lead to reductions in adverse outcomes. It will lower costs, reduce liability and result in better quality of care. Then we all will have taken a giant step forward in health care reform. 

The new Obama Care law entitled the Patient Protection and Affordable Care Act hardly touched on liability reform. There were only a couple of meagerly offered concessions to those doctors that work on poorly paid government positions and that agree to work in awful conditions.  No meaningul attempt at liability reform was offered by the Administration or the Democrats as they pushed the plan through under non parliamentary procedure and without even reading it. With no way to really cut costs in the medical bills for the government, the bill is a sham and needs to be replaced.