I lived in Indiana for about five years. My first job out of graduate school was as a post-doc and visiting professor at Indiana University in Bloomington. It’s a great place, and I eventually assimilated pretty well – I enjoyed the Little 500 and joined the wild celebration when Indiana won its last NCAA Basketball Championship in 1987.
I never really felt comfortable calling myself a “Hoosier” though. I had particular disdain for the practice of using “Hoosier” as a contraction for “Who is your” – and here I go using that device myself in the title of this post.
So – who is your tort reformer?
It might just be Indiana – at least when it comes to medical torts.
The battle for health care reform has certainly been loud and divisive. There has been more shouting and protesting and marching than actual discussion. There has been a lot of misdirection and misinformation. Some of the issues raised are downright silly and would be funny if people didn’t actually believe them (fear of death panels and involuntary euthanasia, for example).
Some criticisms are decidedly not silly. For example, conservatives consistently raise “tort reform” as an issue. Why don’t liberals include tort reform as a part of the package?
My answer? Yeah – why not? You might be surprised that I support tort reform. After all, aren’t liberals supposed to be against it?
I think this comes down to a “baby and the bathwater” issue – and most liberals err on the side of protecting the baby while most conservatives really want that bathwater gone.
Let’s concentrate for now on medical malpractice. There are certainly other areas ripe for reform – but with the ongoing health care battle it seems particularly appropriate to look at medical malpractice suits.
Besides – I have something to write about medical torts.
There are plenty of very real cases of medical malpractice. Physicians operate drunk and kill patients… nurses misadminister drugs… drug companies improperly label drugs resulting in accidental overdose…. Surgeons somehow manage to remove the wrong kidney…. Pharmacists and physicians fail to recognize fatal drug interactions.
In my opinion victims of such malpractice – and their families – should receive substantial compensation from the courts. If tort reform means limiting awards to victims of serious abuse – well, then I guess I am against it.
But for every example of true malpractice there are many more “fluff” malpractice suits – groundless suits submitted by personal injury lawyers in the interest of nothing more than making a quick buck. The “fluff” class-action suits are the absolute worst because the lawyers are the only ones to profit from those. Our current system is nothing more than a subsidy for PI attorneys. The fluff lawsuits must be eliminated.
Therein lies the Gordian knot.
How do we separate the true cases of malpractice from the fluff lawsuits?
Our jury system is not well equipped to handle this issue. A “jury of your peers” will generally not include anyone with enough medical expertise to distinguish true malpractice from the fluff. In fact, you could be certain that any physician in the jury pool would be challenged and dismissed.
How is a jury of non-experts to decide? Both sides will have passionate lawyers – lawyers who know how to talk a good game. Both sides will hire “expert” witnesses – who really aren’t experts at all. No – expert witnesses are just whores who sell their souls to tell the jury what their side wants the jury to hear.
In the end it does not come down to the facts – it comes down to which side has the most convincing lawyers and experts.
This practice has to stop. Unfortunately, the typical suggestion – a cap on damage awards – hurts the true victim as much as it does the non-victim. The baby goes out with the bathwater.
Is there a way out of this bind? A way to untie the knot?
A physician friend recently told me of a system in Indiana that just might offer a solution.
In Indiana, individuals wanting to claim malpractice first submit their case to a three-member panel of physicians. That panel reviews the facts of the case and determines if malpractice may have occurred or not. If the panel finds malpractice is unlikely the case ends right there. If the panel finds malpractice may have occurred, the case can more forward to trial.
The system has a number of advantages. PI lawyers are far less likely to file “fluff” suits because they will generally be unable to fool a panel of experts. True victims of malpractice, on the other hand, stand to receive just compensation. Physicians in Indiana will be able to concentrate on providing good health care instead of “defensive medicine” designed merely to avoid lawsuits. Finally, malpractice insurance will be less expensive because fewer lawsuits will be filed and even fewer will go to trial. In the end, medical costs go down – and that is a major goal of all reform efforts.
It certainly isn’t a perfect system. I can see several possible concerns:
– The review process is apparently quite lengthy – it can add up to a year to the process. Does this delay put an undue burden on the true victim?
– There is a worry among lawyers – perhaps a real worry – that the panel will always err on the side of the physician.
– There is always the worry of corruption. There is lots of money floating around in the medical world, so the temptation to buy off the panel is certainly there.
I have had quite a bit of trouble finding additional information about this program. It looks like an interesting solution, despite the problems. I would be particularly be interested in hearing from people who know more about the system. Do you think it works? What are its problems?
Then comes the bigger question: Should something similar be enacted nationally? Should this system, or something similar, become a part of health care reform?
To me, it does look promising.
Tags: Health Care Reform, Indiana, Law, Malpractice, political, tort reform, wordpress-political-blogs
September 20, 2009 at 11:19 pm |
They did try tort reform in Texas, without any positive results (no evidence of savings). I don’t know the details of the reform, so I can’t apply it to the Indiana proposal, which sounds interesting.
One issue is the extent to which malpractice suits affect medical costs.
The estimates I’ve heard are in the 5% range (tort reform might reduce medical liability insurance costs by 5%) so it’s not clear that tort reform would result in significant medical cost savings; might be one reason why it’s not in the Democratic reform proposals (yes, lobby politics is another).
September 21, 2009 at 1:31 pm |
Paul –
That may indeed be part of the issue – we need more than a five percent fix here. Remember, though, that there are additional costs beyond the insurance. Physicians regularly practice “defensive medicine” to avoid lawsuits. For example, they will order unnecessary tests just so they won’t have that held against them some day in court. Likewise, they will order expensive Caesarean deliveries any time there is the slightest hint of delivery complications – not because Caesareans are safer but because they are able to shield themselves from lawsuits.
– hp
September 21, 2009 at 2:03 pm |
HP–
The problem is disentangling the effects of defensive medicine and the profit motive; both of which can produce the same unnecessary treatments.
Most estimates of the savings that would result from tort reform conflate these two variables.
It’s not clear that tort reform by itself would significantly reduce the incidence of unnecessarily expensive treatments.
Multiple determination!
September 22, 2009 at 7:10 pm |
Call me who is your …. any time – Gotta love those HOOSIERS!! Woooo hooooo
Yeah that’s about the extent of my political rant!!
I love my HOOSIERS!!
September 22, 2009 at 7:13 pm |
Now – who could this be….. Gee….. I just can’t put my finger on it.
This certainly has been an interesting day…..
September 22, 2009 at 7:25 pm |
I love interesting days!!
September 23, 2009 at 1:00 am |
I have not seen any good study connecting defensive medicine to med mal. Maybe this is also an “exaggeration” to cut the money leg from out under Democracts, trial lawyers.
http://www.krld.com/topic/play_window.php?audioType=Episode&audioId=2215113
This story from BusinessWeek.
“Doctors say the suits send health-care costs soaring, but studies show reforms would have little effect.”
http://www.businessweek.com/magazine/content/09_39/b4148030880703.htm
and this from BusinessWeek March 3, 2003.
http://compuserve.businessweek.com/magazine/content/03_09/b3822079.htm
Following is a GAO report on medical malpractice and could not find any evidence to substantiate the claims of lawsuits impacting health care costs, access to health care or defensive medicine (with one possible lose connection relating to OBGYN). But of course you will not see this report on any media outlet swinging left or right.
http://www.gao.gov/new.items/d03836.pdf
Remember the CBO report regarding the cost of a single payer system that we all grasped to support our arguments against a single payer system…
Well, there is the CBO report which had this to say about tort reform:
“But even large savings in premiums can have only a small direct impact on health care spending–private or governmental–because malpractice costs account for less than 2 percent of that spending.”
http://www.cbo.gov/doc.cfm?index=4968&type=0#t3
And of course there is Tillinghast-Towers Perrin (one of the largest in the world that provides risk management for the insurance and reinsurance industry).
According to the actuarial consulting firm Towers Perrin, medical malpractice tort costs were $30.4 billion in 2007, the last year for which data are available. We have a more than a $2 trillion health care system. That puts litigation costs and malpractice insurance at 1 to 1.5 percent of total medical costs. That’s a rounding error. Liability isn’t even the tail on the cost dog. It’s the hair on the end of the tail.
Of that 1 to 1.5 percent what portion of that is “frivolous”?
http://www.towersperrin.com/tp/getwebcachedoc?webc=USA/2008/200811/2008_tort_costs_trends.pdf (Page 10)
And then of course the report from Towers Perrin that states that the total tort cost in the US is 2% of the GDP. What percentage of that is “frivolous” and of that percentage what percentage is “frivolous” corporate lawsuits. So how much are “frivolous” lawsuits driving up the cost of everything? Maybe less than 2 cents on the dollar or maybe even less the 1 cent on the dollar?
http://www.towersperrin.com/tp/getwebcachedoc?webc=USA/2008/200811/2008_tort_costs_trends.pdf
September 23, 2009 at 6:22 am |
Mark,
Interesting perspective. I am assuming you are an attorney? I certainly don’t have the background to match you point-for-point, although I will see if I can find someone who does.
A couple of quick notes, though……
1) Only two percent of GDP goes to tort costs? ONLY two percent? At a glance that seems low, obviously – but you know – it really isn’t that low, is it? In fact, that is a huge percentage of our GDP devoted to an essentially non-productive activity. It is about double what is found in other western nations. What are those extra legal expenses buying us compared to other countries? How is it impacting our quality of life? Are we really any better off for it?
2) Say we could reduce medical costs by 1 percent via tort reform – that does not sound like much alone, but as part of a larger package I would take 1 percent.
3) If tort costs are reasonable, as you suggest, and reform is not needed, then lawyers apparently have a serious image problem. As you know, the general public does not hold lawyers in high regard – largely because our perception is that the law now serves the interest of lawyers and no longer serves the interest of the people. When I talk to attorney friends all it takes is about 2 beers to get them to admit that it is not about guilt or innocence or liability anymore – it is all about who puts on the best show. You can invoke lofty language about “the right to a fair trial” – but what is on trial seems to be the quality of your lawyer – something generally unrelated to the facts of the case. This may sound fine for lawyers – but to the rest of us it is broken….
I would suggest that lawyers need a serious image makeover – how do you guys plan to do that?
– hippieprof
September 23, 2009 at 9:49 am |
Sorry but the CBO especially speaks to premium impact. ANYBODY that has had ANY exposure to the healthcare system knows there is a great deal of CYA defensive medicine.
The hospitals actually pass out booklets that look at test and procedure costs. It’s funny and sick at the same time that the docs to be learn that they’re better off doing a little more than less.
September 23, 2009 at 10:54 am |
“CYA” Defensive medicine – I love that – took me a moment to realize what the acronym meant…..
Note that it would be quite difficult to collect accurate data on CYA procedures because rarely would a physician want to go on record regarding this. Maybe after a beer or two… but it is not something the medical profession is particularly proud of and hence it is likely to be underrepresented in surveys.
– hp
September 25, 2009 at 10:20 am |
Perhaps not as hard as one might think:
“Assurance behavior, reported by 92 percent of physician respondents, involves ordering tests (particularly imaging tests), performing diagnostic procedures, and referring patients for consultation. Avoidance behavior, reported by 42 percent of physician respondents, includes restricting their practice, eliminating high-risk procedures and procedures prone to complications, and avoiding patients with complex problems or patients perceived as litigious. A recent unpublished study in Massachusetts showed that 83 percent of physician respondents ordered imaging and laboratory tests or made specialist referrals defensively.”
http://www.aaos.org/news/aaosnow/nov08/managing7.asp
September 25, 2009 at 10:26 am |
Ben, re “Assurance behavior….”
The usual self report problems.
I can see why physicians would be more likely to report that the order tests for defensive purposes rather than ordering them to increase their income.
The usual grain of salt; TID.
September 25, 2009 at 10:27 am |
And there’s often a reason why a study is unpublished.
September 25, 2009 at 1:00 pm |
HippieProf, this dialog reminds me a bit of the “pork” reform that John McCain would rail about during the ’08 campaign. For all his complaining, pork amounted to a minuscule percentage of our total budget.
From what some of your readers say, it sounds like tort reform also has overstated savings.
The bigger question is does tort reform lead to better medical practice. I suspect it would.
September 27, 2009 at 10:36 am |
[...] on Tort Reform By Matt For more on tort reform, see this post over at the Hippie Professor. The writer examines the system currently in place in Indiana, and [...]