Tort reform take a back seat: The forgotten elephant in the room!
September 7, 2009
As the August debate on health care reform heated up, doctors, patients and insurance companies were receiving the brunt of the blame for escalating health care costs. Instead, Tort Reform should loom front and center in all debate, given that health care represents one sixth of our economy, but no one is discussing Tort Reform. Why?
Many people don’t really understand what it is and its effect on the overall medical system. For those of us who are not lawyers, tort is a legal system for compensating wrongs and harm done by one party to another person and/or their property. This explanation is an oversimplification, but one can find a nice, fuller discussion of Tort Reform under Wikipedia.
When you have medical care that is negligent, you can sue the doctor(s), hospitals, clinics, labs and everyone in sight if you want to. You go to court and, if you win, you will be rewarded with a monetary award that will recompense you. This award may run into millions and millions of dollars. In some cases, like a child who has been damaged in some way, the award may allow for their financial and medical care for the rest of their lives. In some cases, the person may be compensated for the loss of an arm, leg, eye or other loss of function because they can’t make a living anymore, or they can no longer make the living they normally would be making.
Additionally, you may receive a penalty award, which is just that. It penalizes the medical provider for doing sloppy, careless or negligent work. This award can also run into the millions and millions of dollars, and, depending on the state, may even be a % of the recompense award. It is intended to be punitive, and juries tend to give out huge amounts of money to hurt the providers so badly they will be more careful in the future.
Almost all medical providers carry malpractice insurance to protect themselves in the case of negligence or lawsuit, and over the years the cost of malpractice insurance has ballooned dramatically as the numbers of lawsuits have also ballooned. For those doctors who are specialized in some field (OB, Neurosurgery, Orthopedics, Pediatrics, etc.), the cost of malpractice is especially high because the risks are so high. As an example, my own OB/Gyn left the state of Illinois almost four years ago to practice in Wisconsin because Illinois malpractice rates were so high he couldn’t afford to pay them anymore. My loss – he was a really good doctor. And, he couldn’t deliver perfect babies every time.
So far, so good. None of us dispute that negligence occurs and that medical people need to be punished for their carelessness when it does occur.
Here lies the problem.
1. Over the years, people have begun suing more and more over the least little thing, whether it’s negligent or not. A baby is born without a little toe – sue the OB. Tricky brain surgery didn’t restore the patient to full health – sue the Neurosurgeon. Junior has a reaction to a medication he’s never had before and has an asthma attack – sue the Allergist. Sue anybody in sight, and if it’s a large clinic or hospital with a rich endowment, sue them even more. These are called frivilous law suits and a good judge would throw them out the window in a New York minute. In fact, in some states there is a regulation that the loser pays. That means if you sue and you lose, you pay court costs, attorneys fees, etc. It cuts down on the number of silly, frivolous suits that people file, hoping to make a big bundle of money. Remember the lady with the McDonald’s hot coffee spilled in her lap? That was frivolous.
2. Trial lawyers have a big stake in this business because they make HUGE amounts of money if a recompense award is given and even more if a penalty award is granted. Most trial lawyers take 30% to 40% of the final awards – before the patient/family ever see a dime. This is how 2008 presidential candidate John Edwards made his millions. Tort Reform has now become a political issue, because over the years trial lawyers have been big supporters of the Democrat Party and of President Obama. In the 2008 election cycle trial lawyers gave $2,991,290 to Democrats and $140,750 to Republicans in a 95% to 4% ratio. There is no way Democrats want Tort Reform to be a part of their health reform proposals. They will not even discuss it, nor is Tort Reform ever mentioned in any liberal news articles, TV, cable or interviews, despite the billions of dollars lawsuits add to the cost of today’s health care.
3. Because doctors are terrified of being sued, sometimes for no good reason, they order multiple, expensive tests to be sure they have correctly diagnosed a patient’s problem. We call this ‘Cover your a- – medicine.’. They do it to protect themselves in case of a lawsuit. This adds to the overall cost of health care in the country to the tune of countless billions of dollars.
What must be done?
- Include Tort Reform in any health bill being considered for legislation.
- Put a cap on the punitive award side of lawsuits. For example, in Texas, they have a $250,000 cap on punitive awards. This has brought many doctors back to Texas who had left; and brought many new doctors to the state. They know they can practice real medicine instead of defensive medicine, and awards, without limits, for true negligence can still be paid where warranted-Make medical lawsuits (Why not all lawsuits?) = loser pays. When people realize they might not just lose the suit, but will have to also pay the cost, they might think twice about suing, as will attorneys
- Put a limit on political donations (for any group). Certainly a pipe dream, as measures to limit political donations have failed repeatedly over the years.
Suggested Republican health care reform proposals do sound reasonable and workable, but why isn’t Tort Reform a major part of their plans?
Tort reform can’t take a back seat, for without Tort Reform there can be no real health care reform.
Nancy J. Thorner 331 E. Blodgett Ave., Lake Bluff, IL 60044 (847) 295-1035 Republican Precinct Committeeman, Lake County, IL, Shields Township, #240
Jane E. Keill 1516 Plymouth Place, Apt. 2N, Glenview IL 60025 (847) 724-2527 – (25 years in medical claims insurance industry as a claims processor, trainer, auditor, manager and consultant).
