Friday, 25 September 2009 00:00
In the raging healthcare debate this summer, both sides agree that reducing the cost of medical care for individual Americans is desirable. One important way to decrease costs is something called “tort reform.” A tort is defined as a social wrong. But in the healthcare field, consider a tort an act of medical malpractice where a patient is harmed by a medical error of a healthcare provider (a doctor, hospital, nurse, health aide, etc.). At the present time, a patient who is harmed can sue the healthcare provider for “pain and suffering,” and at trial, the patient could be awarded very large sums of money. The patient’s lawyer shares in that large reward. The award money comes from the malpractice insurance company. And the malpractice insurance company obtains its money from charging physicians tens of thousands of dollars a year (sometimes hundreds of thousands, depending on the medical specialty) in malpractice premiums. Doctors must purchase this insurance in order to practice medicine. Tort reform would place a cap on the amount of money that could be awarded in “pain and suffering” lawsuits. So you would limit these awards to, for example, $250,000, and would do away with massive multimillion dollar awards. This would bring down the price of malpractice insurance doctors pay. Huge monetary awards are a big motivator for many personal injury lawyers. These lawyers are strongly opposed to tort reform because it would limit patients to smaller awards and thus limit the lawyers to lower income.
Another tort reform that is realistic and done in other countries is to give a judge the power to throw out a frivolous medical malpractice lawsuit. Junk lawsuits that have no merit are often initiated by unscrupulous lawyers or dishonest patients who are on fishing expeditions for possible big payouts from hospitals or doctors. Perhaps we could have a system that would require that the losing side in a malpractice trial would have to pay all fees, including the winning side’s attorney, and all court fees. You would certainly discourage nonsense malpractice lawsuits this way.
Medical costs will continue to rise because providers of health care are practicing in a highly charged litigious environment where lawsuits are common. The provider will tend to order many very expensive medical tests to protect himself if a lawsuit, frivolous or not, is initiated against him. Medical insurance companies then raise the premiums they charge individuals in order to cover the huge costs of all the tests they pay for that physicians order.
Is meaningful tort reform a real possibility in the near future? It depends on who is forming policy. It can certainly be done if the people demand it of their politicians. Some politicians, however, refuse to confront the powerful trial lawyer lobby that is strongly opposed to tort reform. But without reform in this area, medical costs are not going to come down, and good healthcare providers are going to gravitate toward other states where malpractice insurance costs significantly less.
James DiMaio, MD