Congress is aiming to resurrect tort reform as part of its overhaul of the Affordable Care Act (ACA); and we can’t let them get away with it. See nytimes.com. Seemingly undeterred by President Trump’s failed attempts to wipe the ACA off of the books, the recent iteration of the repeal legislation drafted by House Republicans scapegoats patients who are the victims of medical malpractice and lets the real bandits in the healthcare system walk away scot-free. Like I always say, immunity from responsibility promotes irresponsibility.
Citing alleged healthcare cost savings, the bill seeks to impose new limits on lawsuits involving healthcare covered by Medicare, Medicaid or private health insurance policies subsidized by the ACA. These restrictions would apply to medical malpractice claims against doctors, hospitals or nursing homes and even some product liability claims. Anyone who tells you that this is the golden ticket to reducing healthcare costs is trying to extract black and white from gray; it’s just not that simple, and it’s simply not true.
As President of the Illinois Trial Lawyers Association, I lead the charge in opposition to one of three unsuccessful attempts to enact tort reform that was ultimately struck down by the Illinois Supreme Court in Best v. Taylor Machine Works, 179 Ill.2d 367 (1997). Tort reform advocates often point to reduction of high healthcare costs, but caps in other states have neither reduced costs, nor reduced insurance premiums.
The New York Times article references studies that suggest the cost of medical malpractice, “including damages awards, legal fees and the effects of defensive medicine, may represent 2 percent to 2.5 percent of national health spending.” By any measure, this is a small number making tort reform unlikely to significantly reduce overall healthcare costs even if the suggested measures were 100% successful.
It always astonishes me when public policymakers look to the victims, society’s most vulnerable, to recoup or cap allegedly skyrocketing costs. When are they going to focus on the real culprits, like the pharmaceutical and medical equipment companies with monstrous and now infamous profit margins (think EpiPens) or so-called not-for-profit healthcare institutions that can afford to pay their executives in the multi-millions (some reported as high as $8.5 million) or insurance companies that charge astronomical premiums for pitiful high-deductible, low-coverage policies and those CEO’s aren’t suffering either (it was just announced Centene’s Michael Neidorff’s 2016 pay topped out at $22 million).
The reality is that healthcare practitioners are humans treating humans. Mistakes are inevitable. Insurance provides compensation when these mistakes occur. Like most systems, it’s not perfect, but at least it’s fairly balanced. I would be thrilled if we eliminated medical negligence and not one more person suffered as a result of malpractice, but that is an unreasonable expectation, and if the 2.5% figure is correct, it would do little to reverse soaring healthcare costs. The way to truly cut costs is to eliminate the profit motive in institutional healthcare. The same people who advocate tort reform claim the moral high ground, but isn’t it immoral to deny healthcare or, as the draft bill proposes, limit a medical malpractice recovery, because a person is poor or jobless? It’s time to focus our public policy on efforts designed to permanently correct America’s healthcare system, increase competency and reduce incidents of negligence, a win-win-win. And no one would cap those winnings.