Saturday, October 17, 2009

Tort Reform

by Richard Crews

On September 10, 2009 the Heritage Foundation reported, "There are credible estimates that serious tort reform could save the country between $100 and $200 billion annually in wasteful spending, as doctors practice defensive medicine to preempt lawsuits."

I do not understand why tort reform--especially capping damage amounts for medical malpractice--is not part of the health-insurance debate. Hospitals, doctors, health-equipment manufacturers, and other medical providers pay enormous insurance fees to protect themselves from the possibility that a mistreated patient will sue for multimillions. For example, some doctors in particularly susceptible specialties (such as anesthesiology) pay a hundred thousand dollars or more a year for malpractice insurance. This adds to the cost of medical services to cover the insurance premiums and also encourages "defensive medicine" with extra medical tests and unnecessary treatments.

There are criminal laws (threatening fines and incarceration) and professional reviews (threatening censure and loss of medical license) that can protect patients' safety and rights.

Tort reform has been historically favored by Republicans (as encouraging business innovation and development) and opposed by Democrats (as limiting civil rights and protections).

I believe substantial tort reform could constrain unnecessary costs in health care and also provide a political lever for encouraging bipartisan participation in developing universal health-care legislation.

[See for a fuller discussion of this complicated issue.]


I wrote--"I do not understand why tort reform--especially capping damage amounts for medical malpractice--is not part of the health-care debate."

A friend wrote, "The answer to your question is that the tort bar is one of the major contributors to the Democratic Party. The chairman of the Party, (Dr.) Howard Dean, answered a reporter's question, the same as yours, by saying that they could not take on the lawyers if they wanted health reform."

In other words, while doctors and other medical providers may incur expensive burdens (that they pass on to patients) from the current medical tort law, lawyers do not--they get enormous fees. So tort lawyers lobby to prevent laws capping penalties.

President Obama has said, "I am directing my Secretary of Health and Human Services to move forward on this initiative."

Some people are skeptical: "That would be Secretary of Health and Human Services, Kathleen Sebelius, whose resume includes eight years as director of the Kansas Trial Lawyers Association. So Obama has chosen a former industry lobbyist to run tort reform."