Debunking Another Tort Reform Myth
medical care costs

In the days after the Supreme Court’s decision to affirm the constitutionality of the Affordable Care Act, Senator Minority Leader Mitch McConnell (R-KY) vowed that Republicans would retake control of the United States Senate and then, as their top priority, would “repeal and replace Obamacare.”  On July 1st, Fox News’ Chris Wallace challenged Sen. McConnell on how he would then deal with 30 million uninsured.

McConnell’s back-of-the-hand remark to Wallace – “That’s not the issue” – received the most attention in the media.  Though insensitive, politically and otherwise, McConnell’s attempt to explain the “replace” part of his prescription was more worrisome.

First, McConnell said, Obamacare would be repealed.  No ifs, ands or buts.  Second, the Kentucky Republican promised, Obamacare would be replaced with “more modest reforms,” like “lawsuit reform,” which he claimed was necessary because of the “billions and billions” hospitals and doctors are paying every year because of lawsuits.

Tort reform?  That old Republican chestnut?  A cap on money damages as a way to solve the problems with our health care system by reducing health care costs?  Why yes, McConnell and others say and have said for years as they receive steady donations from insurance companies and the Chamber of Commerce and others promoting talk of “frivolous lawsuits” and “jackpot juries” and “judicial hellholes.”

Nothing new in all this.  What is new is fresh evidence, courtesy of Public Citizen, that the conservative cry for “lawsuit reform” is not the answer.  Or, how about this, Senator McConnell: That old dog won’t hunt.

In a report issued just last week, Public Citizen clearly analyzes medical malpractice claims based on hard data taken from the National Practitioner’s Data Bank (NPDB). The NPDB is the electronic repository of all payments made on behalf of doctors and hospitals, whether by settlement or jury trial, going back to 1990.  Federal law requires reporting of all such payments, so that the data is believed to be comprehensive.  (The data is meant to be kept confidential although it is made available to hospitals and other entities under certain, very restricted circumstances.  Some argue that there should be greater transparency and that this information should far more widely available.)

Based on its review of this NPDB data, Public Citizen has reached a decisive verdict: the Republicans’ longtime claim that limiting individual rights (by capping damages, for example) will reduce the cost of healthcare for all is bogus.  Here are just some of the highlights from the Public Citizen report, based on more than 20 years of NPDB data:

·           The number of payments made on behalf of doctors in 2011 fell for the eighth consecutive year to the lowest level since the Data Bank was created;

·           The total value of the payments made in 2011, adjusted for inflation, was the lowest in the history of the NPDB;

·           If you add up all malpractice payments made in 2011, that total as a share of the country’s total health care bill, was the lowest on record;

·           Malpractice liability insurance premiums in 2010 (the most recent year for which complete data is available) were the lowest since the NPDB began more than two decades ago;

·           An analysis of the payments made in 2011 shows that 80 percent were made in cases involving death, catastrophic harm or serious permanent injuries;

·           The value of malpractice claims paid between 2000 and 2011 fell 11.9 percent while total health care spending increased 96.7 percent during the same period.

The Public Citizen report, entitled, Medical Malpractice Payments Sunk to Record Low in 2011,” contains full detail, back up, sourcing and many charts and graphs to illustrate the findings from this important data.  Here is a link to the report, which is well-worth reading in its entirety:

What does all this mean?  One thing these findings make clear is that there is no correlation between malpractice claims paid and the cost of health care.  This is further seen in studies of states like Texas, which enacted some of the harshest tort reform measures about a decade ago.  In Texas, for example, tort reform measures like caps on damages have not resulted in lower health care costs.

Meanwhile, as Public Citizen notes, the evidence continues to mount that medical malpractice claims are brought in only a small fraction of cases of serious medical error.  The groundbreaking 1998 report of the prestigious Institute of Medicine, To Err is Human, which shockingly projected 44,000 to 98,000 American deaths per year due to medical error, has been updated recently with compelling, corroborating data.

The Department of Health and Human Services in 2010, for example, conducted a far-reaching survey of Medicare recipients and found that one in seven patients receiving hospital care experienced a serious, adverse event and that nearly half of those were preventable.  That translates to several hundred thousand medical errors causing a serious – not frivolous, but serious – medical mistake.  A North Carolina study published in 2010 made largely the same findings.

Reviewing the NPDB statistics, Public Citizen found that the total number of medical malpractice claims paid in 2011 was fewer than 10,000.  That means that only a small number of medical errors led to lawsuits and saw a malpractice payout.  What that means, in turn, is that the overwhelming majority of medical errors went uncompensated.

The fact that there is such a high incidence of avoidable medical errors means that there is an enormous financial burden in preventable health care costs.  An individual who develops a hospital-acquired infection, for example, clearly is going to have a longer hospital stay, is going to require expensive prescription drugs to treat the infection, is going to need expensive diagnostic studies like MRIs, and is going to run up a significantly higher medical bill, not to mention the avoidable human costs in pain and suffering, lost time from work, time away from family responsibilities, and so on.

Who pays these additional costs?  If the doctor or hospital (and their insurance company) are not paying the tab, then the costs are being shouldered by the victims of the medical error.  Given tens of millions of uninsured in this country, that means those preventable, unnecessary costs are being paid, ultimately, by me and you.

In other words, Senator McConnell, the answer to the problem of high medical care costs is not to limit the rights of victims of medical errors.   The Affordable Care Act provides the means to insure millions of Americans.  Now we need to find more effective ways of improving the quality of medical care and reducing the deplorably high incidence of medical errors.