A Better Way

Ken AshfordHealth CareLeave a Comment

Republicans think that one way to improve health care is to engage in tort reform, i.e., somehow limit the number of malpractice cases brought to court, or limit the damages that winning plaintiffs can receive.  Because (Republicans claim) of all these lawsuits, malpractice insurance for doctors and hospitals is high, which creates higher health care costs.

It's an idea, so let's give Republicans credit for actually bringing something constructive to the table.  At least it's not shouting "blargh snort gruff gruff" from the bleachers.

So let's give it the closer look it deserves.

Does malpractice insurance result in higher medical costs?  Sure.  But the impact is negligible.  As Obama said last night, malpratice tort reform is not the "silver bullet" that will solve all, or even most, of the high costs of health care.

Malpractice reform is based in part on the premise that people file frivilous lawsuits against doctors, and doctors (and their insurers) run up all kinds of money defending these frivilous lawsuits.  Sadly, this is not the case.

A 2006 study was conducted by a team of eight researchers from Harvard School of Public Health, Brigham and Women's Hospital, and the Harvard Risk Management Foundation.  They examined 1,452 medical malpractice lawsuits. They found that more than 90 percent of the claims showed evidence of medical injury, which means they weren't, by definition, "frivolous".  (The platintiffs may not have won, but not winning in court doesn't necessarily mean that the lawsuit was baseless to begin with)

More importantly, when baseless medical malpractice suits were brought, the study further found, the courts efficiently threw them out before they got to trial.  So the notion that our courts are filled with frivilous malpractice lawsuits doesn't stand up to scrutiny — it is exaggerated.

Nor is there evidence to show that the level of jury awards has shot up. A recent RAND study looked at the growth in malpractice awards between 1960 and 1999. "Our results are striking," the research team concluded. "Not only do we show that real average awards have grown by less than real income over the 40 years in our sample, we also find that essentially all of this growth can be explained by changes in observable case characteristics and claimed economic losses."

Even then, what exactly does malpractice reform look like?  Sure, Republicans can try to craft a statute that forbids frivilous lawsuits, but who will determine whether a lawsuit is "firivilous" to begin with?  The fact is that we already have a way to ensure that frivilous lawsuits don't go to trial — that way is the court system itself

Maybe a better way for doctors and hospitals to avoid lawsuits is to, you know, do better at their jobs. It's happened before. 

For example, anesthesiologists used to get hit with the most malpractice lawsuits and some of the highest insurance premiums. Then in the late 1980s, the American Society of Anesthesiologists launched a project to analyze every claim ever brought against its members and develop new ways to reduce medical error. By 2002, the specialty had one of the highest safety ratings in the profession, and its average insurance premium plummeted to its 1985 level, bucking nationwide trends.

Similarly, feeling embattled by a high rate of malpractice claims, the University of Michigan Medical System in 2002 analyzed all adverse claims and used the data to restructure procedures to guard against error. Since instituting the program, the number of suits has dropped by half, and the university's annual spending on malpractice litigation is down two-thirds. And at the Lexington, Ky., Veterans Affairs Medical Center, a program of early disclosure and settlement of malpractice claims lowered average settlement costs to $15,000, compared with $83,000 for other VA hospitals.

I'm not saying that malpractice reform can't help.  But it is not the only way, or even the fair and equitable way.  Rather than limiting people's ability to sue (or to recover damages), maybe the medical profession practice area can troubleshoot and fix areas that are prone to malpractice in the first place.