Editor’s Note: This is the third guest column from Leflar about health policy.
Health care costs are through the roof, headed skyward. Why not pass “tort reform” to restrain them?
Doctors gripe about a system forcing specialists in high-risk fields in some regions to pay huge sums for malpractice insurance.
They run extra, expensive tests for fear of getting sued if they don’t.
That inflates medical costs.
Trial lawyers retort that many patients suffer harm from malpractice. The legal system, they say, compensates those patients and their families, and deters medical errors by making doctors more careful.
Both sides are adamant. The debate’s polarized.
Some facts might help.
“To err is human,” and so are doctors and nurses. Two Harvard studies showed how common medical error is. Researchers examined tens of thousands of hospital patients’ records in New York (1980s) and Colorado and Utah (1990s). Four percent of patients suffered preventable harm. One percent suffered malpractice. Projecting to national scale, the studies estimated 44,000 Colorado/Utah patients, or 98,000 New York patients died preventable deaths - more than die from traffic accidents or breast cancer.
Care is safer now than it was then. But patient safety remains a huge problem.
How many injured patients sued?
Only one in seven, the Harvard researchers found. The number’s declining.
Why so few? Most patients like their doctors and don’t want to hassle them. Other patients shun lawsuits. Others never learn the reason they got worse wasn’t underlying illness, but care mistakes. Still others consult lawyers too late - in Arkansas most lawsuits must be filed withintwo years of a doctor’s negligent acts.
One reason so few injured patients sue is economic: their injuries aren’t “worthwhile” to trial lawyers. Developing cases is costly and risk-laden. Medical records must be analyzed and experts consulted.
Skilled lawyers say they fork out $50,000 to $100,000 for medical case preparation. And doctors win seven of 10 jury trials, so payoffs are uncertain.
The result: experienced lawyers tend to represent only severely injured patients and families of patients who die, and then only where proof exists negligence caused the harm. Patients with lesser injuries are less able to bring claims.
The Harvard researchers also found unjustified lawsuits are not uncommon. One-third of claims involved unpreventable injuries. A quarter of these were compensated especially infant patients.
Delay plagues medical cases, devouring time - of doctors, lawyers, patients, experts, and insurers. That time is crushingly expensive. Less than half of every malpractice insurance premium dollar doctors and hospitals pay reaches injured patients.
Lawsuits often aren’t the best solution to medical injury. What patients want is truth about what happened, an apology, continued care, and action so similar harm doesn’t befall others. You don’t need lawyers to accomplish that.
“Tort reform” comes in many packages, hard and soft.
An example of “hard” reform:capping amounts patients recover for pain and disfigurement.
Organized medicine favors caps.
California, Texas, and other states adopted them. Arkansas hasn’t.
Trial lawyers denounce damage caps as unfair to patients left with serious, permanent impairments, such as paraplegics. President Barack Obama opposes caps. A Democratic Congress won’t pass them.
Another example: capping plaintiffs’ (not defendants’) attorneys’ fees. This lost 66-32 in the Senate last week. Arkansas’ senators split their votes, with Mark Pryor voting no, Blanche Lincoln voting yes.
“Softer” reforms stand a better chance.
“Sorry laws,” passed in many states (not Arkansas), encourage better doctor-patient communication by letting doctors apologize honestly for errors without admitting apologies as evidence in court. Then-Senators Barack Obama and Hillary Clinton proposed a bill with these ideas in 2005. We’ll see this again.
A “health courts” proposal would have specially trained judges make fast-track decisions, with guidelines for damage amounts and with liability based on whether harm was preventable, not on negligence. Similar courts show success in Japan.
A “Medicare-led reform” would let Medicare patients opt for a workers’ compensationlike nonjudicial forum. Hospitals would be immune from lawsuits if they accept federal safe outcome standards. Liability and damages rules would track the “health courts” proposal.
These ideas wouldn’t be imposed nationally. We’ll likely see Congress provide funds assisting willing states to try them as pilot programs - using states as social laboratories.
ROBERT B. LEFLAR IS A PROFESSOR AT THE UA LAW SCHOOL IN FAYETTEVILLE AND THE UA MEDICAL SCHOOL IN LITTLE ROCK.
Opinion, Pages 5 on 12/14/2009