Should Health Care Reform Include Medical Malpractice Liability Caps?

On Monday, the Atlanta Journal-Constitution published two very different responses to the above question.

Randolph W. Pate thinks that medical malpractice damage caps will lower insurance costs and reduce the practice of “defensive medicine.”

Georgia is one of several states that has already enacted medical malpractice liability reform. The state’s $350,000 cap on non-economic damages (like pain and suffering) is currently being questioned before the Georgia Supreme Court.

“These kinds of damages are inherently difficult to estimate in dollar terms and add tremendous uncertainty to medical malpractice cases,” wrote Pate. “The cap represents a social compromise.

“While it would be nice to say that pain and suffering damages should be limited only by jurors’ sympathy, the Georgia legislature decided that a limit must be put in place to ensure access to quality health care for its residents.

Available evidence suggests the reforms are working. The Georgia Medical Association reports that doctors’ medical liability insurance costs have gone down 18 percent since reforms were enacted, offering much-needed relief from skyrocketing premiums.

“Opponents of tort reform are quick to cite statistics stating that medical liability represents only 2 percent of overall health care costs.

“But these statistics fail to take into account the high cost of ‘defensive’ medicine — ordering extra tests and procedures, primarily to limit one’s vulnerability to medical malpractice lawsuits.

“President Obama mentioned that he’d ‘talked to enough doctors to know that defensive medicine may be contributing to unnecessary costs.’

“Indeed, there is no doubt that defensive medicine does contribute to unnecessary costs, and that those costs are staggering.

“A 2008 study found that 83 percent of Massachusetts doctors admitted to practicing some kind of defensive medicine.

“The researchers conservatively estimated $281 million in unnecessary physician costs and over $1 billion in excessive hospital admissions in Massachusetts alone.

“In 2004, Duke University researchers estimated nationwide defensive medicine costs at $70 billion a year — a sum that would pay for nearly Obama’s entire health plan.

“Caps on noneconomic damages can bring rationality to medical malpractice damage awards and lower liability insurance costs.
“But they are not the only way. Today’s tort system is slow, unpredictable and costly. Medical injury claims take years to resolve, leaving injured patients hurting and doctors with a cloud over their practices.

“Over half of damage awards given to plaintiffs are eaten up by lawyers’ fees, administrative costs, and expert witness fees.

“Other innovative proposals exist, such as ‘early offer’ programs (designed to encourage injured patients to settle early in the litigation process) and special medical courts. There are even special kinds of insurance patients can purchase to insure themselves against adverse medical outcomes.

“Georgia has already shown leadership in health care by taking solid steps to reform its medical liability laws, improving access to quality medical care.

“Georgians should let President Obama know that they’ve already taken steps to improve their medical malpractice system for all of the state’s citizens.”

But has medical malpractice reform really been successful in Georgia?

Betty Nestlehutt would say, “No!” Due to Georgia’s damage cap, Nestlehutt, age 71, was unable to recover her jury award after a botched surgery left her with permanent scars. The Supreme Court is currently considering her case.

C. Andrew Childers, a member of the Georgia Trial Lawyers Association, argues that caps undermine accountability and don’t deliver cost savings.

“We’ve been told for so long that lawsuits and large jury verdicts are the reason for our excessive health care costs that, despite the absence of any factual basis for such an allegation, some still think it’s true,” wrote Childers in the AJC.

“Supporters of so-called tort reform claim that the threat of lawsuits forces doctors to order unnecessary or excessive tests and procedures to protect themselves — a phenomenon they call ‘defensive medicine.’

“In reality, both the Congressional Budget Office and the Government Accountability Office under President George W. Bush cast serious doubts as to whether defensive medicine even exists.

“The town of McAllen, Texas, may illustrate this point best, as it is the home of the most expensive health care in the nation. Despite having caps on damages an injured victim may recover, doctors in McAllen still routinely order excessive testing and procedures. They don’t do so out of fear of lawsuits — Texas law already immunizes them. They do so because the fee-for-service structure set up by the health insurance industry actually encourages doctors to order them. The more tests and procedures doctors perform, the more they get paid. After Texas capped damages, allowing negligent doctors to harm patients without the fear of lawsuits, the number of medical malpractice complaints to the Texas State Medical Board actually rose from 2,942 to 6,000 in just one year.

“During the debate over reforming our health care system, tort reform — and more specifically, caps on damages a victim may recover no matter how badly he or she is injured — has been slyly added to the mix by the those out to derail health care reform at any cost. The facts prove that placing arbitrary limits on medical negligence verdicts would have little or no impact on the overall costs of health care.

“The New England Journal of Medicine published a study concluding that ‘portraits of a malpractice system that is stricken with frivolous litigation are overblown.’ The National Bureau of Economic Research found that tort reform laws do not avert physician shortages nor do they lead to better patient care.

“Data from the American Medical Association shows that the number of practicing physicians has actually been increasing across the board for many years. And the number of physicians is significantly higher in states without caps on damages.

“In most states, malpractice premiums have continued to go up, while the number of malpractice claims filed has remained stable or has gone down. Less than 1 percent of all civil cases are malpractice cases, and 48 states already have malpractice limits. And yet, the cost of health care continues to skyrocket.

“In the U.S., preventable medical errors are the leading cause of accidental death — and the sixth leading cause of death. A study by the Institute of Medicine found that 98,000 Americans die each year as a result of this preventable negligence. Just 6 percent of doctors are responsible for nearly 60 percent of negligent care — and the courts are the only effective means of holding them accountable. But capping damages a victim may recover undermines this accountability.

“Our forefathers devised a fair and just way for citizens to seek justice when someone harms them — through a trial before a jury. They didn’t believe that government should predetermine the outcome of a trial by limiting how juries assess individual cases. Taking away patient rights — by capping damages and limiting their 7th Amendment right to trial by jury — does not improve the quality of our health care system or produce cost savings. Health care reform should be about making sure that every American has access to quality, low-cost health care, not about limiting the constitutional rights of innocent patients harmed by preventable medical negligence.” [emphasis added]

I concur with Childers; every injured patient should be entitled to a fair trial by jury.

What do you think? Do you think that tort reform should be a part of health care reform?

If you need the advice of a Georgia medical malpractice attorney, call MLN Law at 404-531-9700 to schedule a free consultation.