So Much for Tort Reform

From the Chicago Tribune:

“The Illinois Supreme Court struck down the state’s medical malpractice law today, saying it violates separation of powers by allowing lawmakers to interfere with a judge’s ability to reduce verdicts.”

At least, from first blush, the majority exercised some measure of sound judicial reasoning:

Justices Lloyd Karmeier and Rita Garman dissented on certain points of the decision and expressed sympathy to providers of medical care, citing President Obama’s recent address to a joint session of Congress that the justices said “admonished” the nation’s collective failure to enact health care reform.

[snip]

Justices in the majority, however, said their decision was not made with health care reform efforts in Washington in mind, saying the “Obama administration’s health care reform efforts are not the backdrop against which we have decided the constitutionality.”

In other words, decide on the basis of your understanding of the law, not of the headlines.

Health “Reforms” a Boon to Trial Lawyers

There are a lot of losers in the new health “reform” bill, starting with, well, almost everyone who’s a patient. But fear not, some people do gain.

Who? Ambulance chasers, for one, according to Joseph Nixon, a senior fellow with the Texas Public Policy Foundation. “Few groups make out better under the congressional leadership’s health-care plans than personal-injury trial lawyers.”

He finds at least “26 new opportunities for plaintiff lawyers to sue doctors for malpractice” (emphasis added).

So as we’re going to encourage more people to visit the doctor (by growing Medicaid and subsidizing health insurance), we’re going to discourage doctors from practicing medicine, by laying a number of new legal traps.

Contrast this possibility with the reality of what has happened in Texas. Nixon knows a few things about the Lone Star state, since he is the author of reforms enacted there a few years ago.

In the 6 years since the state enacted tort reform, 18,000 doctors have moved in and set up shop. Some portion of that number, no doubt, is due to the state’s favorable economic situation (growing population, no income tax), but some of the credit goes towards new rules meant to curb frivolous lawsuits and reduce the need for defensive medicine.

A new federal law would likely inhibit other states from following the example of Texas. Worse, it could invalidate the reforms that Texans have benefited from since 2003.

Just another example of how “health deform” will hurt. I’m sure we will be finding more skunks at this party as time goes by.

Don’t Diss Your Pals

Earlier today I mentioned the observation that everyone suffers under health reform except the trial lawyers. Piper Scott of the Evergreen Freedom Foundation looked at the campaign contributions of trial lawyers:

“In 2008, lawyers and law firms anted up over $230 million, with over 75 percent of that going to Democrats. For the 2010 election cycle the percentage on an admittedly lower amount of nearly $33 million so far, 80 percent is going to Democrats.

Who leads the fight in Congress against tort reform? Democrats. Since 1999, 79 percent of the campaign contributions made by trial lawyers have gone to Democrats. Would you bite the hand that feeds you?

Is it simply a case of the trial lawyers giving primarily to the party in power? Not entirely. From 2001 through 2006 Republicans controlled the House, Senate, and White House, yet Democrats received more money. Not that Republican control did much good for the cause of tort reform, though.

First, Appease the Lawyers

James Copeland on tort reform:

As politicians fight to put together healthcare-reform legislation, virtually every interest group – from pharmaceutical companies to insurers, from doctors to seniors – has been asked to make sacrifices. One group, however, has been notably absent from the sacrifice table: the plaintiffs’ bar. As former Democratic National Committee chairman (and doctor) Howard Dean admitted at an August 26 town hall meeting, “The reason why tort reform is not in the bill is because the people who wrote it did not want to take on the trial lawyers.”

Copeland, who is the director of the Center for Legal Reform at the Manhattan Institute, writes about some of the specifics of the House bill that relate to medical-related lawsuits.

First, Enrich the Lawyers

Is there tort reform in the PelosiCare bill? Ha!

Says “The Moderate Voice,” “Not only will there be no meaningful tort reform, but the bill will provide economic incentives to make sure that no states attempt it.”

It’s possible to overstate the benefits of tort reform. But the fact that the bill creates incentives to avoid it shows that it’s not about good policy, but power politics.

Malpractice Caps Challenged in Kansas Court

The Kansas Supreme Court is hearing a constitutional challenge to the state’s cap on damages. The case involves a woman whose doctors removed the wrong ovary.

Here’s the nub of the argument, as summarized by the Lawrence Journal-World:

“Miltenberg argued that establishment of such a cap violates a person’s constitutional right to trial by jury, and infringes on the constitutional authority of the judiciary.

But Keplinger said the cap was put in place to promote a public good — keeping health care and insurance available — and didn’t infringe on constitutional rights.”

A Personal Approach to Tort Reform

Tort reform at the federal level is bad. Tort reform by states? Better. How about an even more personal level, though?

Here’s a Twitter feed I saw a few minutes ago that hints at the solution: When patients and doctors negotiate on services, the state courts should abide by that private decision – Levy #SPN09

Health Reform without Tort Reform=Fail

What’s missing from health legislation trumpeted by the Democratic majority in Congress? Tort reform.

Stanley Goldfarb, associate dean of clinical education at the University of Pennsylvania School of Medicine and a nephrologist, says “cutting the cost of health care will require a real reduction in the costs associated with delivering care, not just the cost of health insurance premiums.”

One of those costs is defensive medicine.

The Commonwealth Foundation provides some commentary on this topic, too.

“In 2002 Governor Schweiker, in an effort to keep doctors from leaving Pennsylvania, signed legislation creating MCare (Medical Care Availability and Reduction of Error), a supplemental malpractice insurance program that every physician must pay into. The MCare Fund provides money for medical malpractice awards that exceed $500,000 (the amount which doctors are required to insure themselves against). But MCare simply serves as a pot of money for trial lawyers to go after, eschewing real tort reform.

Don’t Sell Tort Reform Short

Should we avoid doing something that would save 10% on our health care costs? That’s what Lawrence J. McQuillan says that’s what tort reform could do for us.

Earlier this month, the Congressional Budget Office (CBO) said medical-liability reforms could save about $11 billion annually. This assessment is a gross underestimate of the potential benefits of reform and was intended to give cover to congressional Democrats who say malpractice-liability costs are trifling. But a full accounting shows the benefits would be a hefty $242 billion a year, more than 10 percent of America’s health expenditures.

Fear of lawsuits is rampant among physicians, 93% of whom admit to practicing “defensive medicine,” and “about 25% of medical procedures are defensive in nature,” according to one state medical society.

McQuillan says that to deal with these problems, “jury awards should be capped for impossible-to-quantify “pain and suffering,” so-called non-economic damages,” an act that, where practiced, has both reduced costs and increased patient access to physicians.

Use Tort Reform to Increase Access to Health Care

Joe Nixon recalls what Texas has done with medical malpractice reform, and suggests that other states do the same. “These common-sense reforms,” he says, “have led to a massive increase in the accessibility of health care in Texas, huge growth in the capital infrastructure of hospitals and clinics, hundreds of millions of dollars more each year in charity care and Texas’ adding more than 16,000 new doctors in just six years.”

Nixon is a former Texas legislator, and currently serves as a policy fellow with the Texas Public Policy Foundation.