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Vail Valley Voices: Why tort reform matters

HOWARD FLEISHON
Vail, CO Colorado

Although doctors are some-times perceived as of one mind, they are in fact quite conflicted on the issue of health care reform. Many doctors are supportive of a single-payer system, while others are vehe-mently opposed.

However, there is one issue on which all doctors are united: the need for health care tort reform.

The Trial Lawyers Association exerts potent political influence. As a result, there has been relatively little restraint in lawsuits or litiga-tion. Americans pay for the lottery mentality of our legal system not only in medicine but every day in the costs of goods and services, insurance and, of course, taxes.



Specifically concerning health care, malpractice premiums amount to about $23 billion paid for by doctors. It is true that, when compared with the total costs of medical care in the U.S., this number is relatively small.

The consequence of frivolous lawsuits is defensive medicine: additional and costly testing that we all pay for in insurance premi-ums or Medicare/Medicaid tax subsidies. The tort system cur-rently in place imposes significant costs on the system, not only in terms of dollars but also lost time, manpower and resources.



For example, liability plaintiff attorneys destroyed a venerable company, Dow/Corning, which manufactured silicone implants. The company was forced into bankrupt-cy under the burden of litigation judgments and settlements based on evidence that was subsequently proven to be entirely false. Scientific research demonstrated that these claims had no scientific basis. That was no consolation to the doctors, shareholders and the families of the displaced workers who paid the price for the injus-tice perpetrated by aggressive tri-al attorneys.

The question we need to ask is: What value does the cost of the health care liability problem bring to our society? In 2003, the U.S. Department of Health and Human Services estimated that limits on malpractice awards could save between $70 billion and $126 billion a year. That would be enough to pay the pre-miums for all those citizens cur-rently uninsured.

The study quoted most often is by Daniel P. Kessler and Mark B. McClellan. They found that liabil-ity reforms could reduce defen-sive medicine practices, leading to a 5 percent to 9 percent reduc-tion in medical expenditures without any effect on mortality or medical complications. For the average American family, the hid-den cost of defensive medicine is $1,700 to $2,000 per year for no additional health care value.



A study published in the New England Journal of Medicine in 2006 analyzed more than 1,400 malpractice claims and found that in almost 40 percent of cases, no medical error was involved.

Based on a survey of 900 physi-cians in Massachusetts conduct-ed between November 2007 and April 2008, 83 percent reported practicing defensive medicine, with an average of between 18 percent and 28 percent of tests, procedures, referrals and consul-tations and 13 percent of hospi-talizations ordered for defensive reasons.

Such practices were estimated to cost a minimum of $1.4 billion per year in Massachusetts alone.

The Journal of the American Medical Association in 2005 pub-lished a study that investigated how often physicians alter their clinical behavior because of the threat of malpractice exposure. A total of 824 physicians (65 per-cent) completed the survey. Nearly all ( 93 percent) reported practicing defensive medicine. “Assurance behavior,” such as ordering tests, performing diag-nostic procedures and referring patients for consultation, was very common (92 percent). Avoidance of procedures and patients that were perceived to elevate the probability of litigation was also widespread. Forty-two percent of respondents reported that they had taken steps to restrict their practice in the previous three years, including eliminating pro-cedures prone to complications, such as trauma surgery, and avoiding patients who had com-plex medical problems or were perceived as litigious.

As an example, Hawaii’s largest hospital currently has six attor-neys on staff to deal with litigation issues. Twenty years ago, there was one.

At the University of Miami’s school of medicine, 14 cents of every dollar collected in fees for patient services goes toward medical malpractice costs.

Sen. John Kerry, a Democrat, and Sen. Orrin Hatch, a Republi-can, rarely agree on anything. Yet both have said that Congress needs to find a way to eliminate frivolous malpractice cases.

In fact, the first version of HR 3200, the health care bill currently in front of the House of Representatives, con-tained a provision for health care tort reform. It lasted about one day. It took only that long for the trial lawyers’ lobbying influence to extract any mention of tort reform.

We look to Europe and Canada for examples of gov-ernment- run health care, yet our congressional “lead-ers” fail to study the cost-savings effects of removing liti-giousness from the health care system as the Europeans have.

A handful of states have passed malpractice-reform measures. Limits or caps on awards are the most publi-cized.

However, there are other ideas that have proven to be reasonable and successful: 1. Caps for legal fees.

2. No-fault insurance.

3. Loser pays (system used by most other developed nations).

4. Significant penalties for frivolous lawsuits.

5. Qualifications for expert witnesses.

6. Caps for punitive damages.

7. Punitive- damage awards designated to charities or other agencies rather than the plaintiffs or their attorneys.

8. Independent expert review of bad medical outcomes.

The facts are irrefutable: Defensive medicine is a potent driver of the cost of health care. To claim that medical malpractice and defensive medicine do not significantly contribute to the cost issue is, at best, disingenuous.

The time is now to address the inequities of our health care system, including tort reform. We need to rise above special interests and do what is right for our citi-zens, present and future. We will not have the resources to sustain the current health care paradigm.

Reform will require change for us all: patients, health care providers, taxpayers and, yes, even trial lawyers.

Dr. Howard Fleishon is a radiologist practicing in Phoenix and Avon. He is a fellow of the American College of Radi-ology. He also earned a master’s degree in medical man-agement from the University of Southern California.


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