Will The Right To Sue Bad Doctors Survive Health Care Reform?

The video above tells the story of Merlyna Adams-- a school principal from Louisiana who sought treatment for a kidney stone. After a month of botched treatment, her body developed sepsis, a complication caused by infection. She suffered congestive heart failure, renal failure and pulmonary failure. The restricted blood flow to her hands and feet required her to have both legs amputated below the knee and she lost both hands. She is unable to engage in everyday tasks like brushing her teeth, taking a bath, eating or using the restroom without another person.

Every year, the lives of 98,000 Americans are utterly devastated by medical malpractice. 98,000 Reasons has more info and more of these heartbreaking stories. There's also a page to take action and tell the Senate not to gut patient's rights.

I'm bringing this up because the Senate is quietly considering gutting the rights of patients harmed by medical malpractice to sue. It's called "tort reform" and it's been one of the longest running right-wing scams going. Teabaggers seem to think it was written into the Bill of Rights and then hidden by Communists. Dozens of states have enacted "tort reform" with disastrous results. Now it's a very real possibility that it will be snuck into the health care bill.

We've seen with Stupak-Pitts the way absolutely awful crap can suddenly insert itself into a huge bill like this. This little noticed note (PDF) from a several hundred page "Sense of the Senate" document indicates that "tort reform" is a very real threat to attach itself to health care reform like a tick:

SUBTITLE H-SENSE OF THE SENATE REGARDING MEDICAL MALPRACTICE

Current Law

No provision

Chairman's Mark

The Chairman's Mark would express the Sense of the Senate that health care reform presents an opportunity to address issues related to medical malpractice and medical liability insurance.  The
Mark would further express the Sense of the Senate that states should be encouraged to develop and test alternatives to the current civil litigation system as a way of improving patient safety, reducing medical errors, encouraging the efficient resolution of disputes, increasing the availability of prompt and fair resolution of disputes, and improving access to liability insurance, while preserving an individual's right to seek redress in court. The Mark would express the Sense of the Senate that Congress should consider establishing a state demonstration program to evaluate alternatives to the current civil litigation system.

This is a sop to the Blue Dogs who are ever vigilant for ways to claim to be doing deficit reduction while actually throwing millions and millions to the insurance companies. The CBO has stated that "tort reform" does almost nothing to reduce costs, all it does is screw anyone who is the victim of a bad doctor.

Please send a message to your Senator today and tell them this is NOT the kind of reform we need.

Amazing How The Right Has Managed To Get The Teabaggers All Riled Up About Tort Reform

I wrote a few times about my lovely day in August with the teabaggers and somewhere along that way I think how I explained that the chief teabagger, Mike Alexander, when he wanted his teabaggers to disrupt a speaker, would signal a 16 year old kid with a drum who would tap out a signal for which chant Alexander wanted them all to shout in unison. "Read the bill" and "Liar" were most popular but "Tort reform" was another one they had all rehearsed.

I have a brother-in-law who seems to have lost his mind some time ago. I never really knew him well enough to figure out why, but he was a truck driver and I figured he just listened to too much Hate Talk Radio and it drove him mad. He's retired now, filled with bitterness, bitterness he allows Rush Limbaugh and Glenn Beck to direct for him. He's been pretty crazy for years but after hearing his theory about how Obama planned to get revenge on white people if he were to be elected, I decided to only call my sister on her cell phone going forward. You may have a brother-in-law like that too. Worse yet, a right-wing porno actor from Georgia sometimes IMs me to rant and rave about whatever he's heard on Fox. I try ignoring it since he adds nothing whatsoever to the brainwash routine but yesterday he started in about how high his taxes are and how liberal health care would ruin him. I didn't want to be unkind but after he started in about how Hitler was a leftist I told him I needed to finish writing and best of luck. Like I said, he didn't add anything but he certainly didn't leave much out either-- and "tort reform" was part of the gibberish he regurgitated. Who knew gay Republican porn actors from rural Georgia were so concerned with tort reform?

But more and more people have noticed that the teabaggers and dittoheads have been howling about tort reform and Dan Margolies at the Kansas City Star decided to try to get to the bottom of it on Friday... and on page one, no less! He had noticed the phenomena at a Claire McCaskill town hall there in town. Margolies approached the issue with an open mind and acknowledged that "few causes in the health care debate draw more support than tort reform-- the idea of reining in frivolous lawsuits that lead to unjust cash awards, soaring malpractice premiums and 'defensive medicine,' the unnecessary tests ordered by doctors to avoid being sued." He also points out that evidence paints a "much different picture." The Medical-Industrial Complex and Insurance industry spend far more on bribing members of Congress and lobbying them ($1,171,723,099 in thinly disguised bribes since 1990 and another $4.8 billion in lobbying just since 1998) than on settling jury awards.

The most reliable estimates peg the costs of malpractice litigation at 2 percent of overall health care costs. And while tort reform measures have helped tamp down malpractice premiums, national health spending continues to rise.

“If you’re talking about payments made on behalf of doctors or hospitals to plaintiffs, that’s actually a drop in the bucket compared to the nation’s $2.2 trillion in health care costs,” said Amitabh Chandra, a professor of public policy at Harvard University.

Ask any physician how he or she feels about tort reform and you’re likely to get an impassioned answer about how malpractice litigation has raised insurance premiums and led to an epidemic of defensive medicine.

“The one central goal that any health care reform should include is cost containment,” said Steve Reintjes, a local neurosurgeon. “I think that federal tort reform will go a great way to ease the practice of defensive medicine.”

It’s no mystery why Reintjes and fellow physicians feel that way. Six or so years ago, malpractice premiums skyrocketed, the latest in a series of liability crises that galvanized the medical community.

Doctors pressed state lawmakers to enact tort reform measures, including caps on non-economic damages such as pain and suffering, caps on punitive damages, and requiring verdicts to be reduced by amounts plaintiffs get from health insurance and other sources.

...Since the 2005 reforms in Missouri, malpractice premiums at Hagen’s practice have fallen 24 percent-- a decline he attributes to the reforms. Reintjes said his premiums have declined 30 percent.

But-- and here is where the debate gets sticky-- overall health care costs in Missouri continue to rise. The same is true in states that have enacted even more stringent tort reforms, such as Texas.

Which suggests that a tort system run amok is, at best, only a small contributor to the nation’s health care costs.

In fact, it’s not clear that malpractice awards have risen anywhere near as dramatically as tort-reform proponents insist. Nor is it clear that jackpot justice, as opposed to declines in insurers’ investment income, is to blame for rising malpractice premiums.

Missouri is one of the few states that issues regular reports on medical malpractice. Its most recent report states that from 2006 to 2007, the number of paid claims increased from 514 to 719, but declined to 564 in 2008.

From 2005 to 2006, average awards in the state declined by 15.9 percent, from $253,888 to $213,454, and by an additional 8.5 percent to $195,239 in 2007, according to the report. And while average awards rose by 3.8 percent in 2008 to $202,612, that amount was still below the 2005 high of $253,888.

And those awards represent only a fraction of all claims. Most claims result in no payment at all to the plaintiff.

So how much do the costs of malpractice lawsuits — defined to include verdicts, settlements and the costs of defensive medicine — contribute to health care spending? In 2004, the nonpartisan Congressional Budget Office pegged those costs at less than 2 percent.
More recently, a study by WellPoint, a large insurer, found that medical malpractice was “not a major driver of spending trends.”
Tort reform, WellPoint said, would lower health insurance premiums, “but medical malpractice is not currently driving the rate of increase.”
Physicians frequently cite a higher figure — 10 percent — as the share of overall health care costs attributable to malpractice litigation and defensive medicine. The figure appears to come from a 1996 study by two Stanford University economists that estimated the costs of defensive medicine at 5 to 9 percent of health care spending and the costs of litigation at 2 percent.

The authors found wasteful defensive medicine in the treatment of elderly heart disease patients and extrapolated their findings to other areas of health care. But other experts, including the Congressional Budget Office and researchers at Dartmouth College, have been unable to replicate those findings.

“The fact that we see very little evidence of … dramatic increases in the use of defensive medicine in response to state malpractice premiums places the more dire predictions of the malpractice alarmists in doubt,” the Dartmouth researchers wrote.

While some studies have shown that caps on non-economic and punitive damages have led to lower malpractice premiums, most experts say the savings don’t have a significant effect on overall health care costs. The Congressional Budget Office, for instance, noted that “even a reduction of 25 percent to 30 percent in malpractice costs would lower health care costs by only about 0.4 percent to 0.5 percent, and the likely effect on health insurance premiums would be comparably small.”

And when the Congressional Budget Office took into account the larger, albeit harder-to-measure costs of defensive medicine, it found no significant difference in per capita health care spending between states with and states without limits on tort liability.

On the other hand, doctors find it beneath their dignity to be sued and the emotional costs may have more to do with the medical professionals tort hysteria than actual financial costs. And people pay attention to their doctors and respect them. Tom Baker, a law professor at the University of Pennsylvania and author of The Medical Malpractice Myth, theorized that having “a common enemy” keeps insurance and pharmaceutical companies-- the real culprits behind rising costs, he said-- from fighting among themselves. And then there's this: