'Tort reform' won't fix health care

December 18, 2009|By Wayne Willoughby

Congress is engaged in a battle that will determine the face of American health care for decades. While some in this battle seek to assure that every American has access to affordable quality care, others fight against what they perceive as a "socialist" threat.

Although people of good conscience exist on both sides of the debate, there also are partisan opportunists with misguided priorities who view this battle as a tool to advance their careers and the political interests of their party at the expense of injured health care consumers.

For months now, national Republicans and their media supporters have attempted to divert the health care debate away from improving access to quality health care. Instead, they call for legislation stripping away the rights of injured patients. Over a half-dozen such amendments have been introduced by Senate Republicans so far this month.

As any former supporter of "tort reform" can tell you once he or she becomes seriously injured by medical negligence, such reform sounds grand in the abstract. "Those people" should not be getting "all that money." However, when you (or your spouse, child or parent) are the injured patient, tort reform is no longer an abstraction involving "those people" - it is about being denied basic fairness.

The Institute of Medicine found 10 years ago that up to 98,000 people die every year from preventable medical errors, and countless more are severely injured. This is the equivalent of two 737 planes crashing every single day.

If air travel were this unsafe, who would shoulder the blame - the passengers or the airlines? Would any politician dare to claim that we should limit the legal rights of passengers in order to protect the airlines and lower ticket prices? Of course not; they would be clamoring to enact laws to improve flight safety. Yet, when it comes to health care, Republicans on Capitol Hill offer the snake oil of tort reform instead of pushing for greater safety.

What would their elixir cure? Tort law changes are not a novel idea. Forty-six states have passed some kind of tort reform, and about three dozen have some form of cap on damages - but health care costs have continued to skyrocket. Instead of saving money for consumers, tort reform has enabled the insurance industry to make record profits off the backs of doctors and patients. Doctors' premiums, on average, are higher in states, like Maryland, that cap the damages patients and families can receive compared with states without such caps, according to the Medical Liability Monitor.

Moreover, tort reform will not improve health care, as evidenced in Texas and California, frequently mentioned as "models" for tort reform. Despite the most Draconian anti-patient laws in the nation, both states are among the highest in the nation in the percentage of uninsured, according to the Kaiser Family Foundation, and have the most expensive health care markets. Tort reform has not lowered costs or covered the uninsured, but it has prevented people injured through no fault of their own from seeking justice.

Citizens should demand that politicians pursue a different model of reform - one that places the priority on increasing patient safety rather than on insurance company profits. The proponents of "tort reform" should join with the proponents of health care reform to enact legislation to eliminate preventable medical errors. If preventable medical errors that injure tens of thousands of patients each year are significantly reduced, the result would be both a substantial increase in patient well-being and a substantial decrease in malpractice actions - all while protecting the rights of those with legitimate claims.

Wayne M. Willoughby is immediate past president of the Maryland Association for Justice. His e-mail is wmw@askthelaw doc.com.

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