A Brief Note on Tort Reform

Tort reform is a red herring in the health care reform debate. There are several reasons for this:

1. The Federal government cannot implement tort reform because medical malpractice is controlled by state law.

2. Many, if not most, states already have implemented tort reform. Louisiana, for example, requires that medical malpractice cases be first brought in front of a board, which is made up of three doctors and a lawyer who doesn't get a vote (and if you think cops don't like snitching on one another, doctors are far more protective) prior to ever getting to trial. The panel's opinion can then be introduced as expert testimony in court. Also, damages are limited to $100,000.00 for most providers.

3. It's been a while since I looked at this, so I could be wrong, but I remember when studying health care economics that malpractice insurance constituted roughly 3% of the operating costs of a hospital or small boutique firm (like a 4 doctor orthopedic clinic).

4. Attorneys are easy targets and doctors are easy victims. Attorneys are portrayed as evil and doctors noble.

5. Doctors have the highest incidence of substance abuse of any profession. I used to date a nurse who talked about how the doctors showed up drunk for surgery much of the time. I also have a few other stories that I can't talk about but trust me, they aren't good.

6. If you study the malpractice literature, you'll find that the big awards are usually well deserved. For example, one of my old favorites was the OBGYN who liked to carve his initials on women's stomachs.

Would medicine be cheaper without lawsuits? Of course, but so would every industry. Generally, malpractice suits reflect the additional societal costs of the practice of medicine. If the doctor accidentally amputates your left foot instead of the right one, or leaves a pair of scissors in you after an appendectomy, that $100,000.00 cap is going to suddenly seem very unfair.