Vail Law: More thoughts on torts and tort reform | VailDaily.com
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Vail Law: More thoughts on torts and tort reform

Rohn Robbins
Vail, CO, Colorado

Last week, I walked into the fray of tort reform. Not surprisingly, this hot issue garnered some reply. I heard from two local medical doctors who offered some thoughtful insight about the “hidden” costs of “defensive” medicine and who took exception to the assertion in my column, attributed to Tom Baker, author of “The Medical Malpractice Myth,” that tort litigation amounts to less than one-half of one percent of health care spending. We had a pleasant and productive conversation. I appreciate their involvement and their call.

I also heard from a reader who, apparently because I cited Tom Baker’s half-of-one-percent statistic, decided that both my column and I were “shallow” and that I, personally, “give lawyers a bad name.” Yikes! My antagonist, however, failed to tell me what dog she had in the fight of tort reform and violated the first precept of conscientious debate – telling the other party where you sit before you tell them where you stand.

Before responding, and offering a forum for the complaints, please, first allow me this; when my column went out to the editors, it was titled “What is a Tort?” Of the 871 words in the column, precisely 32 words (including attribution of the source) dealt with the dent in health care costs caused by tort litigation and only the first paragraph dealt in even the most tangential way with tort reform. The column was intended, only, to explain and offer a legal definition of the term “tort” which, because of the current tort reform movement, is seen so frequently in print.

Presumably, to give the column a little extra zing, the Daily editor who reads my columns before it goes out into the world, changed my admittedly plain vanilla title to “What’s a tort and how can we reform them?” Even with the title sexed up, though, only the original 32 words which made direct reference to the issue of litigation costs remained.

My intent had been, as it has consistently been in the 15 years I have been writing this column, to be as neutral as possible, to educate, and not to use the column as a pulpit for my own views and opinions. While I thought I had achieved that, apparently, with the hot button of tort reform, at least a few of you believe I failed and your taking the time to tell me so is a welcome part of this important debate. Thanks.

‘Defensive medicine’

As the term is commonly used, “defensive medicine” means throwing the kitchen sink at something where, practically, only the slightest trickle from the faucet is what is truly needed. In fear of lawsuits, medical practitioners often cover every conceivable eventuality – ordering far -etched and esoteric tests – so as to have done the utmost of what could possibly have been done in the exercise of modern medicine in order to diagnose and treat an illness.

Although something looks, acts and quacks like an ordinary flea bite, you as the physician, call out the medical armada. Obviously, this adds to the costs of health care and translates into larger health insurance premiums.

According to Charles Krauthammer (who, by the way has a Harvard M.D.), writing for Townhall.com, a recent Massachusetts Medical Society study found that five out of six doctors admitted they order tests, procedures and referrals – amounting to about 25 percent of the total – solely as protection against lawsuits. According to Krauthammer, the conservative/libertarian Pacific Research Institute claims that defensive medicine wastes something on the scale of $200 billion per year.

Limiting damage awards

In a 1996 study by Kessler and McClellan, published in the Quarterly Journal of Economics, limits on non-economic damages awards – such as those instituted in California for decades – could reduce health care premiums between 5 and 9 percent. In a 2006 Price Waterhouse Coopers study, performed for America’s Health Insurance Plans, it was estimated that costs associated with medical liability accounted for between 7 and 11 percent of health care costs.

Direct costs of litigation and the widespread practice of defensive medicine, according to the study, accounted for 10 percent of total health care spending.

The Congressional Budget Office, however, pointed out in a 2006 study that a reduction in costs resulting from defensive medicine might be offset by other factors that could increase the rate of medical injuries resulting from negligence. An increase in the rate of such injuries could actually increase spending and, therefore, total health care costs.

The true costs of defensive medicine are hard to discern. For every tit, there seems to be a tat. What one is well advised to do, however, is keep informed, listen to and read a variety of opinions and vet the sources from which those opinions derive.

While health care reform is a vital topic – and tort reform remains an essential part of the conversation – there are, as in most things, no easy answers. And, by the way, I am not a tort attorney and have no dog in this fight except as a fellow payer of insurance premiums.

For more on this topic, please tune in to my radio shows on Sept. 2 and 9 at 7 p.m. on KZYR radio, 97.7 FM, when my guests will be Rep. Jared Polis, who has been active in the current health care reform debate, and Stephen S.S. Hyde, author of “Cured: The Insider’s Handbook to Health Care Reform.”

Next week, back to strictly legal matters.

Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices in the Vail Valley. His practice areas include: business and commercial transactions, real estate and development, homeowner’s associations, family law and divorce and civil litigation. He may be heard on Wednesday nights at 7 p.m. on KZYR radio (97.7 FM) as host of “Community Focus.” Robbins may be reached at 970-926-4461 or at robbins@colorado.net.


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