Saturday, March 6, 2010

Tort Reform

Earlier this week I got an anonymous comment asking why Democrats don't support tort reform in the current debate about health insurance reform. In the best of times I wouldn't be able to answer such a question "for democrats" and these days, pissed as I am at the Democrat leadership I certainly don't feel qualified, even though President Obama has recently endorsed this idea for inclusion in the new plan. When George Bush was Governor of Texas he pushed for medical tort reform and it was passed into law around 2003. The result has been a massive change in the structure of law firms and a huge reduction in lawsuits. Amusingly enough with the complex requirements to attain proof of damages, the pursuit of tort lawsuits has now become the realm of the wealthy victims only. A mother on welfare has a dismal economic future anyway therefore seeking a settlement will yield very small results. You might argue this was an unintended consequence of tort reform. I'd argue it's another way the Republican myth making machine has convinced working people to argue against their own benefit. Tort reform makes it impossible for working people to get justice against...corproations! Brilliant! And furthermore I dug up this commentary from an attorney opposed (obviously) to tort reform in which Mike Ferrara points out another consequence of Texas tort reform:


Texas Tort Reform is NOT a Model for Nationwide Health Care Reform
Mike Ferrara Attorney
September 07, 2009 8:24 PM

Tort reformers like to talk a lot about how the threat of malpractice suits raises health care costs by forcing doctors to practice “defensive medicine”—the ordering of unnecessary tests, procedures, and prescriptions in an attempt to protect themselves against a possible negligence lawsuit.


In a 2008 AMA survey, they remind us, a majority of the doctors who responded admitted to practicing defensive medicine—a number that translates, the AMA calculated, to $1.4 billion more spent annually on health care. If our doctors weren’t threatened into doing this, we’d all save loads of money and our national health crisis would be over.


Are the tort reformers right? Well, let’s look at Texas. Several years ago, the state passed a stringent medical malpractice law that capped awards for pain and suffering at $250,000, and brought the number of malpractice lawsuits down dramatically.


So the cost of health care in Texas must also be down, you suppose, since doctors don’t face the same malpractice threats as the rest of the country. Eh, No. In fact, Texas is home to three of the top ten most expensive cities in the country to receive health care: McAllen, Harlingen and Corpus Christi. In each of these cities, every Medicare patient is costing the country more than $10,000 a year (a couple thousand more than the national average).


So if defensive medicine against the threat of malpractice suits isn’t driving up costs, what is?


Harvard Medical School surgeon Atul Gawande got a candid answer to this question from a general surgeon in McAllen, Texas:


“Come on,” the general surgeon finally said. “We all know these arguments are [BS]. There is overutilization here, pure and simple.” Doctors, he said, were racking up charges with extra tests, services, and procedures.


The surgeon came to McAllen in the mid-nineties, and since then, he said, “the way to practice medicine has changed completely. Before, it was about how to do a good job. Now it is about ‘How much will you benefit?’ ” –Atul Gawande, The NewYorker



While tort reform like Texas' won't improve the cost of our health care, changing our charge-per-service structure just might.

So, is the high cost of health care the doctors' fault or the lawyers? I'd argue neither: it's the insurance companies. Take your pick.

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