• Will adding “tort reform” to ACA replacement do anything aside from harm consumers? Thursday, February 9, 2017

    If they ever actually get around to formulating a “replacement” or “repair” for the Affordable Care Act, Republicans are likely to include “tort reform” measures — making it harder for injured patients and their families to hold doctors accountable when they cause harm and providing less compensation if they do. According to a recent report in Medscape, top Republicans “believe that unnecessary lawsuits are driving up malpractice insurance premiums and causing physicians to overtreat and overtest patients, which increases healthcare costs.”

    But what’s the truth behind these claims? A report from Kaiser Health News found “the reality doesn’t match the GOP rhetoric.”

    The Center for Justice & Democracy has just updated its fully-sourced briefing book on medical malpractice, and it includes a number of facts that may surprise you.

    Doctors are paying less for medical malpractice insurance today than they did in 2001, even without adjusting for inflation.That’s according to The Doctors Company, a company that happens to be one of the nation’s most vocal ‘tort reform’ proponents so they kinda have an interest in ‘spinning’ their data if they could. But they can’t.”

    Doctors in high-risk specialties like neurosurgical spine surgery, who practice in states that have limited patients’ rights to sue, do not order significantly fewer tests and procedures because they are less likely to be sued. “According to the American Board of Neurological Surgeons, ‘[s]tate-based medical legal environment is not a significant driver of increased defensive medicine associated with neurosurgical spine procedures.'”

    State caps on damage awards for victims of medical harm do not lead to a decrease in heath care costs related to physician spending. In fact, researchers have found that caps on damages “predict 4-5% higher Medicare Part B [physician] spending.”

    In military hospitals, where patients harmed by medical negligence are prohibited from suing, patient safety is getting worse and worse. “According to recent research, 174 “sentinel events” (unexpected occurrences involving serious injury or death) were recorded at military treatment facilities in 2015, a 56 percent increase from the previous year.”

    Medical malpractice cases represent less than 5 percent of all state tort cases. “According to state data examined by the National Center for State Courts, which is the one and only entity that compiles data like this, medical malpractice cases represent 4.6 percent of the total state tort caseloads. This is consistent with NCSC data from at least the previous three years.” The NCSC also finds medical malpractice suits account for less than 0.2% of all state civil cases. They’re hardly leading to an overload on the courts.

    A relatively small number of “bad apples” among doctors account for a whopping share of medical harm — and are unlikely to face professional discipline. “Fewer than 2% of all physicians practicing over a 25-year study period ending in 2015 were responsible for half of all malpractice dollars paid out,” according to a study that was reported in HealthLeaders Media. “At the same time, only a small percentage of those whose data was reported to the National Practitioner Data Bank lost clinical privileges or were subject to action by licensing boards.”

    Not only does it appear “tort reform” won’t help the “problems” that are alleged (most of which don’t seem to exist), it would cause additional problems. The Center for Justice & Democracy cites evidence that capping damage awards for medical negligence discriminates against women, children, minorities and low-income workers.

    And “tort reform” in an ACA replacement wouldn’t only cause problems for victims of medical harm, it could lead to changes that restrict the rights of consumers who are harmed or cheated in other areas. The CJ&D says,

    Most Affordable Care Act replacement proposals would deprive Americans harmed by negligent hospitals or incompetent physicians of legal rights guaranteed by state and local governments.  These provisions would open the door to potentially massive interference with state laws that help injured consumers.

    It has been a bedrock principle of our democracy that Congress should not interfere with state tort laws. Since the 1970s, Big Business has been unsuccessfully trying to crack this barrier and take away state tort rights in three major areas: auto crashes, products liability and medical malpractice. Once Big Business succeeds for the first time in overriding state tort law in one major area, constitutional principles that have blocked Congress from doing this become severely damaged.  This leaves the door wide open for Congress to try to override state tort law in any area.

    “Tort reform” in the modification of the Affordable Care Act will only add to the suffering of those who have already suffered medical harm. It’s worth examining the motivation of those who propose such changes.

    — J.G. Preston

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