Calls For Tort Reform a Deform - From the Marietta Daily Journal 8-13-09

Article by Lance Cooper, guest columnist

Whenever health care reform is proposed, some people instinctively think more so-called "tort reform" should be the solution to the debate (see Monday's Marietta Daily Journal op-ed page). This effort diverts us from the real issue at hand - affordable, attainable and safe health care.

Insurance companies and others who are fearful of accountability for medical negligence regularly employ the "deny and distract" routine. First, when faced with hard numbers and legitimate research placing blame not on lawyers, but on their own industries, they deny any accountability. Then they employ methods of distraction to tear us off the course to finding real solutions. Tort reform is such a distraction.

Supporters of tort reform argue that the threat of lawsuits makes doctors order unnecessary tests to protect themselves - a phenomenon they call "defensive medicine" - and yet there is no evidence to support those claims. Studies conducted by the Congressional Budget Office and the Government Accountability Office have all cast doubts that such a thing called "defensive medicine" even exists.

Take McAllen, Texas, home of the most expensive health care in the country. Despite having draconian tort reform laws and the same caps on damages that we have in Georgia, the doctors routinely order excessive testing and procedures. They do so not for fear of lawsuits but because the fee-for-service structure actually encourages them to. In other words, the more tests they perform, the more they get paid.

Claims of "frivolous lawsuits" driving up health care costs are another regularly deployed method of distraction. Georgia, and the rest of the nation, already has laws against filing these so-called frivolous lawsuits. The New England Journal of Medicine published a study finding that 97 percent of medical malpractice claims are meritorious and that 80 percent of those involved serious injuries resulting in major disability or death. And the overall number of medical malpractice cases is low; less than 1 percent of all civil cases are medical malpractice cases.

Another frequently echoed distraction is the notion that doctors are fleeing and causing physician shortages because of liability concerns and increased malpractice insurance premiums caused by lawsuits. Once again, this distraction is false. Data from the American Medical Association show that physician numbers have been increasing across the board for many years. And the number of physicians is significantly higher in states without caps on damages. The National Bureau of Economic Research found that tort reform laws do not avert physician shortages, nor do they lead to greater, more efficient patient care.

Patient care is what really matters at this point. Preventable medical errors and mistakes are the leading cause of accidental death in the nation. Just 6 percent of doctors are responsible for nearly 60 percent of negligent care - and the civil justice system is the only effective means of holding them accountable.

In Texas, after the $250,000 cap on damages was imposed, thereby freeing negligent doctors from accountability, the number of complaints against Texas doctors to the Medical Board rose from 2,942 to 6,000 in just one year. Proposed tort reform measures do nothing but fill the coffers of malpractice insurance companies - the same companies who have raised premiums on the doctors while civil claims have remained stable and, in most states gone down.

Further dismantling our uniquely American system of accountability by enacting more tort reform would be disastrous. We can't forget what just happened with Wall Street vs. Main Street or the crash of AIG. The insurance industry and its special interest groups are utilizing a tired relic of gotcha-politics - blame the lawyers and hope Americans forget about the record bonuses being paid to insurance industry executives after the taxpayers bailed them out. Amazingly, insurance special interest groups, with their call for more tort reform, want to deprive Americans - who just bailed them out - of their constitutionally protected access to our judicial system. Let's ignore those distractions.

Taking away patients' constitutional right to seek justice in a fair court of law, when they have been injured through no fault of their own, does nothing to improve our health care system, nor does it increase patient safety. And it is, simply, un-American.

Lance Cooper of Powder Springs is past president of the Georgia Trial Lawyers Association and is a past president of the Cobb Trial Lawyers Association. He holds a degree in economics from Cal-Berkeley and a law degree from Emory University.

Labels: