THE HEALTH CARE CONUNDRUM : Tort reform is key to health care fix

By Ed Martinez – March 10, 2009


The high rates of frivolous lawsuits and high defense costs have caused most physicians to turn to defensive medicine, in which physicians order unnecessary tests and procedures to protect themselves against a potential lawsuit.Medical malpractice litigation reform is urgently needed. The existing medical malpractice litigation system fails to serve patients and physicians.


The high cost of malpractice insurance due to frivolous lawsuits impacts physicians’ ability to sustain their practices, and they are often forced to pass on the excess cost to their patients.


To make matters worse, the ever-present threat of a lawsuit causes physicians to practice defensive medicine, which also increases the cost of providing health care to each patient. The cost of high mal­ practice insurance and the threat of lawsuits raise the price of health care for everyone.


Every dollar that is spent on high malpractice premiums and defensive medicine is a dollar that will not be spent on paying providers or on providing additional medical services to patients. Malpractice litigation reform will ensure that health care dollars will be spent on health care, not in the courthouse.


The cost of malpractice insurance is out of control. Since 1975, malpractice insurance has risen an average 12 percent each year, whereas the average rate’ of inflation has been about 3 percent. In 2002, physicians paid $6.3 billion in malpractice premiums, a number that now approaches $10 billion annually. The main reasons behind the steep annual increases and the large price of malpractice insurance are frivolous malpractice lawsuits. In 2004, 40 percent of malpractice cases did not involve medical error or injury. Of the cases that did go to trial before juries, physicians were exonerated 83 percent of the time. Even when the physician was exonerated, the average defense cost was $93,600.


The high rates of frivolous lawsuits and high defense costs have caused most physicians to turn to defensive medicine, in which physicians order unnecessary tests and procedures to protect themselves against a potential lawsuit. A 2005 survey in the Journal of the American Medical Association reported that more than 90 percent of doctors practice defensive medicine. The large numbers of doctors practicing defensive medicine has had a huge impact on medical costs. The Department of Health and Human Services issued a report in 2003 that estimated that the cost of defensive medicine is between $70 to $126 billion per year.


The time for malpractice litigation reform is now, as 70 to 80 percent of Americans believe that our nation suffers from too much litigation.

The current health reform debate provides the ideal environment to deal with this issue. Malpractice litigation reform meets the main goals of health reform because it reduces health care costs and increases the quality of care provided to patients.


There are many ways in which we can reform the malpractice system. The following highlights three approaches that have generated the most interest:

  • Appointment of expert medical panels – the settlement of malpractice claims by neutral medical panels rather than by lay jury panels. This would introduce a higher level of clinical and technical expertise in analyzing complex medical cases.
  • Creating “safe harbor” protections – the creation of a federal safe harbor program that would insulate physicians from malpractice claims as long as they provide evidence-based clinical care as determined by national professional and quality assurance associations.
  • Implementing a “disclosure and offer” approach. Through this approach, physicians would openly communicate with patients in the event of unanticipated outcomes of care and would make prompt offers of compensation in appropriate situations. 


Despite the obvious benefits of malpractice litigation reform and the widespread support for change, such reform was excluded from all the major health reform bills proposed by House and Senate policy makers. This glaring omission is the result of lobbying by special interests, such as lawyers and law firms that fear a loss of income from reform. In 2008, lawyers and law firms were the second largest contributors to the Democratic party, with $47 million in contributions. These dollars have had a profound effect on Democratic leaders who are unwilling to anger their benefactors. Even top party leaders, such as Howard Dean, acknowledge that malpractice litigation reform is “too big a battle for Democrats to fight.”


To combat the influence of these special interests, we must all contact our congressional representatives and advocate for innovative malpractice litigation reform provisions to be included in national health reform initiatives. We cannot afford to wait any longer to reform the costly, unfair and dysfunctional malpractice system that is driving so many physicians out of the medical profession at the time when we are considering expanding health insurance cover­ age for approximately 30 million Americans.


Ed Martinez is a resident of El Cajon and  former CEO/President of San Ysidro  Health Center


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