Friday, December 25, 2009

Tort Reform: The Cure Or The Poison Pill For Health Care?


Unless something happens very soon, we will witness the terminal unraveling of health care in America. The nation is witnessing the final step in the decades-long decline of the once best health care system in the world. One can only stand in wonderment as we watch the political lemmings run headlong towards the long drop from the cliff that has become the health care reform movement in the government.

The political football at the apex of the fracas is tort reform. Democrats are not anxious to include this in any bill because of the monumental donations they get from the Trial Lawyers Association. Republicans are demanding it to be included because it allows health insurance companies and liability insurance companies to continue to make prodigious profits and continue the donations to that side of the aisle.

The collateral damage in this political fire fight occurs to the American people. They fight; we suffer. The problem lies not with the Democrats; the problem lies not with the Republicans. The problem lies collectively with the Democrats and the Republicans. Neither one nor the other is correct in this argument.

So is tort reform the cure or the poison pill? In reality, it is only a palliative step to overcome the tragedy American health care has become. The simple reason is that while the number of malpractice suits has dropped somewhat in states that have instituted some type of tort reform, it has not resulted in the cost savings everyone is seeking.

In my own state of Ohio, during my nearly 40 years in some form of employment in health care, tort reform has been overturned at least three times. Likewise many other states have overturned various forms of tort reform. So, an activist judge can turn the whole system topsy-turvy at any time.

The problem is that every representative and senator as well as our Harvard Law School trained president knows this. Tort reform is just more of the same smoke and mirrors political chicanery that has characterized the laughable legislative effort.

We cannot have some states with tort reform and others without. We cannot have some states with “better” tort reform than others. Tort reform at the federal level has no advantage for at any time, a judge can overturn tort reform and send health care sprawling. Once that happens, whatever savings our political leaders claim to have counted on will go back to square one. Tort reform really is only as good as who sits on the bench. One might ask why we are even looking at this tactic as an answer to the health care crisis. The answer is that we should not.

Perhaps I am the only doctor in America that does not want to see tort reform happen. This time, the lawyers are correct. We should not be tampering with the public’s constitutional rights. It simply fails to solve the problem. It will not encourage or require doctors to practice better medicine.

Doctors practice “defensive medicine” which results in towering costs to the public by ordering additional and frequently medically unnecessary tests to try to keep from missing something that could result in a law suit. My state of Ohio has enacted tort reform. As in other states, Ohio’s version has resulted in only mild reductions in the punitive malpractice premiums doctors are paying. It has resulted in a mild reduction of the number of malpractice suits that are filed, but those are suits that never should have been filed anyway. However, and more importantly, like everywhere else in the country, tort reform has failed to eliminate defensive medicine practices and the overwhelming costs.

A colleague shared with me a story of a friend who visited an emergency room two weeks ago because he could not get a timely appointment with his family doctor, another bomb crater in the war on medicine in America. He had a headache. The days of “take some aspirin and call me in the morning” are long gone. Before he was discharged from the ER, he had, among others, a full raft of blood work, x-rays of his skull, a CT scan of his brain, an MRI of his chest, and a spinal tap. His bill came to $18,000 – for a headache.

My colleague phoned the treating doctor and was told, “I have been sued four times over headaches and that is never, ever going to happen to me again!” The doctor is no longer allowed to trust a physical examination to initiate a treatment plan or observation. The end result is the final answer. Without documentation that shows the doctor took some action the threat of a lawsuit prevails. So we pay and we pay and we pay.

That, my fellow Americans, is defensive medicine. It has not been controlled either by tort reform or by ethics committees in the hospitals. Doctors will not intervene in the process lest they suffer the same fate.

Senator Orrin Hatch recently said on a television interview that savings of up to $41 billion could be realized over the next 10 years with limits on medical malpractice suits. Senator Hatch stated he thinks it is “probably closer to $300-400 billion.” Even that represents a hopelessly uninformed opinion. $300-400 billion per year are more realistic figures as doctors continue to promote the defensive medicine philosophy “if you think of it, then do it.” In the same breath, Senator Hatch talked about tort reform as the answer. Tort reform might just save $41 billion, but a sensible reorganization of how liability is handled can result in vastly greater savings and greater protection for the public from an adverse outcome of their health care without limiting or eliminating anyone’s constitutionally guaranteed right to sue.

Every conservative pundit barks about tort reform and liberals whitewash it. Unfortunately, America’s doctor corps offers no real help. While channel surfing I ran across a videotaped program with Glenn Beck in a studio full of doctors. Remarkably, my feelings about my own colleagues were reinforced as it became readily apparent that members of my own profession are as out of touch as our political leaders. They mentioned “meaningful” tort reform. To me, that means they continue to seek the magic potion that frees them from malpractice suits as they still are generally unwilling to accept the responsibility for their mistakes.

On the other hand, they are rightfully dismayed because they frequently are blamed and sued for adverse outcomes that are not their fault. While only 5 percent of malpractice actions result in a win for plaintiffs, doctors are unfairly saddled with the cost of the entire liability in the system. Those costs are simply driving more and more of our doctors out of medical practice while defensive medicine is breaking the system financially. Our most significant piece of the nation’s infrastructure is simply withering in front of our eyes. Tort reform is not going to save our doctors or the rest of us for that matter.

Health care reform in America has become more about the fight between the Democrats and Republicans than it is about bringing cost effective health care to the American people. Republicans are demanding tort reform and Democrats are likely to agree to give it to them just to get something – anything - in the way of health care reform legislation passed. Both sides fully know well that tort reform can be overturned at any time, making the effort meaningless. Republicans save face because they can boast they did their part to bring down health care costs and then blame Democrats for the loss of protection they were all seeking. Democrats know their donations from the Trial Lawyers Association are well preserved when two more of the elderly Supreme Court Judges either retire or just fall over. For the record, let us repeat: Tort reform is only as good as who sits on the bench and it can be overturned at any time and with repeated attempts.

Congress needs to step out of character for once and do something meaningful and not political. The first step is to realize that health care reform will mean nothing if a doctor cannot look at a person and see a patient rather than a potential litigant. Congress sees health reform as a political answer when the point of failure is at the doctor-patient and service-reimbursement level. Too many people have their hands in the money pot and it is not flowing to patient care.

Congress needs to recognize that physicians have never conducted their profession within written standards. They rely on the failed system of “care provided in the light of generally accepted standards at the time, place and in the context of care delivered.” That description is the pivotal argument in every malpractice trial. That statement describes health care whose standards can change depending upon several circumstances. What results is the same condition can be “treated” in several different ways rather than choosing the one and only right way to do something. In addition, it means that more than one outcome could occur in the court. The standard of care “snapshot” that each and every legal result represents is not a mandate for the correct way to do something. Multiple outcomes for the same problem send mixed messages to doctors as to how to really treat something; if they even hear of the verdict.

The medical profession should be encouraged to write standards of practice like every other profession. When physicians act according to their own rules they precisely define what is and is not malpractice. If we follow this model with a yearly review of the results from uniform treatment on a national scale it will force changes in protocols that ultimately lead to reductions in adverse outcomes. It will lower costs, reduce liability and result in better quality of care. Then we all will have taken a giant step forward in health care reform.

Let us not deceive ourselves. Tort reform is a poison pill, but it is not the only one in this ridiculous and dangerous folly that is taking place in Washington. As a veteran physician who has a lot to lose as a health care provider as well as a health care consumer, I say, America should beware.

As it stands right now, the process taking place in Washington is not in our best interest. If there ever was a time in the history of our country that Americans should exercise their rights and bring heavy pressure on Congress and the White House to stop this madness, it is now. Failure to do so will ultimately bring bad dividends in the future for the nation’s health care.


Dr. Michael Pryce is an Ohio surgeon and author of Anathema! America’s War on Medicine - A Veteran Doctor Offers a Cure for What Ails America’s Health Care System. He is a medical expert and a veteran health care provider of nearly 40 years. He served on the Senatorial Inner Circle and Presidential Roundtables during the Reagan and GHW Bush administrations. His book has garnered the attention of radio talk shows across the nation

1 comment:

Michael Kirsch, M.D. said...

I'm also a Ohio physician who is grateful that our Supreme Court upheld tort reform. Prior to this, insurance premiums were spiraling upward, even for physicians who had no claims. I personally witnessed physicians retiring because of this, or leaving Ohio. I agree that caps are not ideal, but we had no other remedy available here. No physician wants to protect rogue physicians or wants a patient who has been the victim of medical negligence to be uncompensated. The issue is that the system now targets innocent physicians routinely as there is no filter up front. Innocent physicians can remain trapped within the system for months or years before being released. I'd give up on caps if we didn't have a sieve. Finally, most patients harmed by negligent care are missed entirely. Is this the best we can do? More at under Legal Quality.