Thursday, March 04, 2010
Anthony Tarricone, the president of the American Association for Justice, which represents plaintiffs' lawyers, had an op-ed column in Thursday morning's Philadelphia Inquirer. His primary point is that tort reform really has nothing to do, or ought to have nothing to do with the debate over health insurance reform or health care delivery.
Let's call this tort-reform fixation what it is: a sign that many Republicans are bereft of ideas and obsessed with an issue that will do nothing to lower care costs or cover the uninsured. Medical malpractice is a political crutch that opponents of the health-care bills lean on time and time again to justify their efforts to derail reform.Of course not every medical outcome is optimal, and not every state has robust organizations for doctors to police their own, but anyone who has spent anytime interacting with the medical establishment understands the extent of defensive medicine that is now practiced. The 0.5% CBO figure might be correct insofar as it goes (though it seems low), but I have recent first-hand quality of care experience that would not be covered by such a numerical estimate: when Visiting Nurses would come to the house to see my father, they would want to check his backside for bed sores, even if I had just done so and reported no problems, and even if doing so again would result in a fair amount of arthritic pain for my father, because of the classic "roll" technique employed by the nurse in turning him, as per her training.
While pundits and reform opponents rail against malpractice lawsuits, they are only a symptom of the illness: medical malpractice. According to the Institute of Medicine, as many as 98,000 patients die each year due to preventable medical errors, at a cost of $29 billion. And that doesn't include patients who are seriously injured by medical errors.
The Congressional Budget Office has concluded that the most dramatic proposed changes to tort law would cut health-care costs by only 0.5 percent. Meanwhile, they could worsen care and patient outcomes.
When I spoke with the supervisor about this issue, she admitted to me that it was because their nurse had to see it to report on it; otherwise, it created the possibility that a problem might occur later and that they could get sued for being negligent to check it.
I responded by saying, no problem, let's get your lawyer on the line and we'll draft a simple and blanket waiver, which I'll execute, since I have health care POA.
OK, how about if we strictly schedule your nurse's visits to coincide with the times of day he is being normally rotated from one side to the other, and she can then make a full and satisfactory inspection? But let's be clear that no unnecessary pain or discomfort to my father will be acceptable.
OK, that sounds better.
I digressed on that tangent, but it was personal, not business.
Read all of Tarricone's op-ed, if you can, and then contrast it with this key sentence from an op-ed written by Bill Bradley (who has centrist financial and liberal social credentials as a Democrat, and was an early endorser of Obama) in the August 30, 2009 edition of the New York Times:
The bipartisan trade-off in a viable health care bill is obvious: Combine universal coverage with malpractice tort reform in health care.That political deal is there to be struck, I believe -- there is a good-sized basket of Republican votes that can be obtained to vote for a bill with meaningful tort reform. Read all of Bill Bradley's plea from six months ago. The question is, how powerful is one lobby within the Democratic Caucus?
The "plaintiffs' lawyers" lobby owns the Democrats - it's just that simple.
One of their own (Edwards) was almost VP and considered for POTUS - pretty amazing given what of his true nature was exposed by the new "Paper of Record", The National Enquirer.
We hear this blather about medical malpractice from the trial lawyers every time somebody threatens to put a leash on the golden goose.
They love quoting the Institute of Medicine study about medical errors and deaths. Having taken the time to read that study, I can tell you that it is a political document, based entirely on heresay and wild extrapolation (often from non-healthcare workers) and bears no relationship with reality. That goes along with the fact that the IOM is a polital organization. It is simple junk science of the kind we see with global warming...but I digress.
The presence of tort risk is a HUGE ... and I mean H*U*G*E ... factor not only in how doctors spend health care dollars, but also hospitals and outpatient clinics and, well, anybody who treats the public.
If on factors in the cost of the insurance, the actual cost of the litigation, the amount of "butt-coverage" laboratory testing, the policies and procedures of hospitals, the risk management costs...and compares ALL OF THAT to he relativey SMALL number of actual true malpractice cases that are successfully litigated...then one realizes why many people call a law degree a "license to steal".
The solution is simple...do away with contingency fees, which are repugnant anyway, and make the loser pay court fees and legal costs for suits without merit.
If I cure someone of a fatal disease, I don't get half of their income for the rest of their life...I get a fee (or at least 80% of one)...but if something goes wrong...ANYTHING...I get to risk my livelihood and income.
I also get to pay the relatively paltry sum of $45,000 a year in insursance, even though I have never been sued in almost 30 years. If I don't want to pay it, I don't get to practice medicine.
Nice racket, heh? I guess if I were representing an association of tort lawyers, I'd spend millions in political contributions to keep this gravy train on the tracks.
Any wonder why we aren't going to have enough doctors over the next 20 years?
Part of the problem with medical torts is the conflation of "adverse outcome" with "error". People are going to die or get paralyzed or suffer strokes no matter what you do. The human body is far too complex to be a mere "do X get Y" sort of machine. Moreover, error is not preventable, no matter what tort lawyers say. It's not humanly possible. In fact, I would argue that the more layers of bureaucracy and checkers you put in the system, the more points of error you introduce. The sheer complexity of your error avoidance scheme increases, rather than reduces, error. This is partly because each chokepoint of the system is its own opportunity for error, and partly because complexity hides risks. The more complex the system the more difficult it will be to analyze and reason about its risks.
The bipartisan trade-off in a viable health care bill is obvious: Combine universal coverage with malpractice tort reform in health care.
Oh, yeah. Give only the Government doctors protection from the multi-billion dollar medical extortion...er...liability industry, that will improve our service. Not!