Tuesday, September 29, 2009

Why we need tort reform

Philip Howard, who has been writing about the burdens our bizarre legal has imposed on society, writes today about how much we could save if tort reform were attached to whatever health reform bill goes through the Congress.
Eliminating defensive medicine could save upwards of $200 billion in health-care costs annually, according to estimates by the American Medical Association and others. The cure is a reliable medical malpractice system that patients, doctors and the general public can trust.

But this is the one reform Washington will not seriously consider. That's because the trial lawyers, among the largest contributors to the Democratic Party, thrive on the unreliable justice system we have now.

Almost all the other groups with a stake in health reform—including patient safety experts, physicians, the AARP, the Chamber of Commerce, schools of public health—support pilot projects such as special health courts that would move beyond today's hyper-adversarial malpractice lawsuit system to a court that would quickly and reliably distinguish between good and bad care. The support for some kind of reform reflects a growing awareness among these groups that managing health care sensibly, including containing costs, is almost impossible when doctors go through the day thinking about how to protect themselves from lawsuits.
Of course, the Democratic Party is in too much hock to the trial lawyers to let any such common-sense reform pass through a Congress they control. The President makes rhetorical gestures towards tort reform, but clearly doesn't mean it.
On Sept. 17, his secretary of Health and Human Services, Kathleen Sebelius, announced an initiative that will allow states to test a variety of programs to "put patient safety first and let doctors focus on practicing medicine." But in the initiative's statement of goals made no mention of defensive medicine, or of pilot projects such as special health courts. The funding for the initiative is a tiny $25 million. According to Katharine Seelye on the New York Times's Prescriptions blog, "the comparatively small budget seems commensurate with the administration's level of interest in the subject."

The upshot is simple: A few thousand trial lawyers are blocking reform that would benefit 300 million Americans. This is not just your normal special-interest politics. It's a scandal—it is as if international-trade policy was being crafted in order to get fees for customs agents.
I like his proposal of setting up special health care courts to hear these cases with medically educated judges who won't be swayed by sad stories.
Trial lawyers scoff at the idea of special health courts. "First you have a court for doctors," a spokesperson for the trial lawyers, Linda Lipsen, recently said, "and then what? A court for plumbers?" But America has a long tradition of special courts for situations where expertise and consistency are important—bankruptcy courts, tax courts, workers compensation tribunals, vaccine liability tribunals, Social Security tribunals, and many more.

Trial lawyers often claim that any alternative to the current medical malpractice justice system, such as specialized health courts, will only make it more difficult for injured patients to seek justice. But that's why you start with a pilot project. If these courts are unfair they will be rejected. But if they succeed—that is, are fairer to patients and doctors—they could provide a solid foundation for rebuilding an effective, less costly health-care system than we have today.
Otherwise, just as the federal government is set to vastly expand the number of patients seeking care, we'll continue to see people leaving the medical profession or getting out of specialties where there are shortages such as obstetrics due to their fear of being sued.

If the Democrats were truly interested in lowering the cost of health care, they'd be jumping on such a solution that could save billions. But their fealty to special interests prevents them from any real reform.