Supporters of severely restricting injured patients right to win restitution for their pain and suffering from preventable medical errorsknown in some circles as tort reformrecently disinterred their tired, old bill on Capitol Hill.
Nothing, it seems, can stop them from recycling this shtick every year. Not a growing body of research that shows conclusively that their reforms wont have any significant effect on the very ills that they are trying to curethe high cost of medical malpractice insurance and the final payouts to plaintiffs. Not the fact that more than 30 states have adopted changes in their malpractice liability systems, with almost no evidence that they solved any major crisis. And not the fact that the limit on noneconomic damages they are trying to pass$250,000is based on a California law more than 30 years old, from a time when $250,000 was worth more than three times as much as today.
The backers held the same news conference they always hold, saying again that their Orwellian Help Efficient, Accessible, Low-cost, Timely Healthcare Act is bipartisan, knowing full well that having three Democrats among the 66 House co-sponsors isnt exactly the definition of working across the aisle.
Just a week or so before that claim was made, a truly bipartisan effort on malpractice reform was unveiled in both the House and Senate. It would award grants to states to try out "health courts" and other solutions, with the goal being quick and fair compensation to injured patients while helping physicians learn from medical errors and eliminate the practice of defensive medicine. Administrative health courts would use trained adjudicators with specialized healthcare expertise to make evidence-based rulings assisted by independent medical experts.
Noneconomic damages would not be capped but might be more appropriate to the nature of the medical mistake. Patients would have the option of litigating instead of going through the states program. The key is to create alternatives that would be fair and predictable to both healthcare providers and patients.
The American Medical Association said that health courts might be worth tryingmaking it sound as appealing as minor surgerywhile quickly adding that they would be nowhere near as ideal as a cap on noneconomic damages and lawyer fees. Other healthcare organizations, while not as zealous on the issue as the AMA, generally follow suit.
How this can be so after years of independent research casting massive doubt on their claims is beyond understanding. By now they must know the link between fluctuating malpractice insurance rates and jury awards has been debunked. You have to wonder if this is simply because they hate trial lawyers that much.
Lets just review a little bit of the recent data. Keep in mind that there is also a huge body of evidence that came before it with roughly similar conclusions. We discussed them in prior editorials in Modern Healthcare ("Med malaise" and "The wrong solution)."
In May, Philip Peters Jr., a law professor at the University of Missouri at Columbia, reported on an analysis of three decades worth of empirical data on malpractice litigation. He found that juries tend to sympathize with the doctors being sued rather than the patients who are suing them, which is the reverse bias from popular myth.
Overall, injured patients win only about 27% of all cases that go to trial, the lowest success rate of any form of tort litigation.
A lot of the results are similarly counterintuitive. Peters actually says that health courts might result in less-favorable results for physicians. The study found that weak cases rarely win; in those instances, juries agree with expert reviewers in more than 80% of cases, a better agreement rate than physicians typically have with each other. And doctors consistently win about 50% of the cases that experts believe the plaintiffs should win.
More revealing still was a study published in the March-April issue of the journal Health Affairs about the effects of state malpractice reforms. In general it found a nearly nonexistent relationship between an array of reforms and the value of paid malpractice claims. Only one reform, imposing stringent controls on serving as an expert witness achieved consistent reductions in awards.
Remember all those dire projections of specialists fleeing certain markets because of high malpractice insurance or jackpot juries? Well, Pennsylvania was usually cited as Exhibit A by tort reformers. It turns out it was largely a myth. A study by an eclectic group of academics and a health insurance executive published online by Health Affairs in May found that comparing the height of the malpractice insurance crisis with a period of stable rates showed the proportions of high-risk specialists restricting the scope of their practice or leaving it altogether did not increase during the crisis. There was one exception: The supply of OB/GYNs did fall by 8% in the three years following the crisis.
Despite all of this evidence and another legislative vehicle that might help everyone find a better way to litigate legitimate malpractice lawsuits while continuing to weed out frivolous claims, tort reformers only have eyes for their cap on noneconomic damages.
With Democrats, who have blocked tort reform in the Senate the past four years, now in charge of both houses of Congress, it is likely the cap measure wont even come to a vote this year.
Isnt it time for the healthcare industry to compromise?