People need to be aware that medical malpractice lawsuits are not the problem with our health care system. The problem is careless doctors and the system that protects them. Prior posts have touched on different aspects of this issue. This post adds some additional thoughts.
Caps on non-economic damage awards and other hurdles for injured patients have become prolific across the U.S. in the last two decades. Yet, numerous studies and reports have shown that “tort reform” does not prevent sharp increases in insurance premiums, even though insurers enjoyed a slowdown in their payouts. One from 2003. An article about another study from 2003. One from 2011. The problem, besides the growing number of malpractice victims, was partly the increase in payments made by the federal government to fix preventable errors. The federal government realized the potential savings from the elimination of medical errors was undeniable.
So, the Center for Medicare & Medicaid Services (CMS) stopped paying for certain hospital and doctor errors, and created a financial incentive for hospitals to embrace patient safety. Certain expensive but “reasonably preventable” secondary conditions would not be reimbursed by CMS, and could not be billed to patients. Previously, CMS rewarded hospital errors with larger reimbursements, by paying them an extra amount to treat various preventable complications that developed as a result of negligence. Sadly, this measure did not show real results in reducing harm. A November 2010 report released by the Office of the Inspector General at the U.S. Department of Health and Human Services (HHS) found that one in seven Medicare patients are injured during hospital stays and that adverse events during the course of care contributes to the deaths of 180,000 patients every year. These adverse events cost the government and taxpayers an additional $4.4 billion annually.
The hallmark of the American Civil Justice System, embodied in the U.S. Constitution, is trial by jury. It is a valuable system that includes many checkpoints for the dismissal of frivolous lawsuits. It also includes several checkpoints to protect the system from unreasonable or excessive damage awards. All without so-called “tort reform” measures. As Dr. William Sage commented, “The major problem out there is medical errors that are not compensated, rather than frivolous claims that are compensated.”
When plaintiffs with real injuries fail to receive adequate compensation from the hospital or doctor who injured them, they are further victimized by our health care system. Many times, their injuries are permanent. Many times, their injuries impact every aspect of their lives. Many times, they become despondent because they can no longer do the things they enjoyed. By artificially capping medical malpractice damage awards, the government shifts the costs to the taxpayers and away from the negligent doctor. Even worse, when doctors are insulated from liability, they have less incentive to be safe.
I will step down from my soapbox…for now.