President Obama tepidly suggested a willingness to explore tort reform—a favorite Republican Rx for lowering health care costs—through pilot programs. But there already are several pilot programs, Mr. President. (And they are working very well, thank you very much.)
Dr. Gilbert Ross, medical director of the American Council on Science and Health, calls the president’s move “an empty nod” towards tort reform, which would anger one of the Democrats’ most powerful constituencies, the trial lawyers. But Ross explains why we don’t need pilot programs.
More than 20 states, including Texas, Missouri, and Illinois, have embraced some form of tort reform. These states do not cap what erring physicians can be billed for the genuine economic costs of maintaining patients they have harmed. But they do put a cap on the punitive, Erin Brokovich-inspired damages for pain and suffering. The result is that, while John “Two Families” Edwards, America’s most famous tort lawyer, might have had to settle for a smaller mansion, the injured patient’s needs are met, without breaking down the entire medical system.
Our current tort system is not only expensive but reduces access to providers. Doctors have been voting with their feet, by moving in significant numbers from no-cap states to states with award caps. In fact, it can be quite a struggle for a new patient to find an ob-gyn or orthopedist (among other high-premium, high-risk specialties) in states with no caps on non-economic damage awards.
Ideally, the tort system could eventually be moved to state courts designated as special malpractice panels, using as models the workers compensation and vaccine injury courts, with required funding for compensating injured patients coming from interested parties on a no-fault basis.
The current system mainly rewards trial lawyers, not injured patients, and is a major drag on our public health resources. Most injured patients do not sue—even if negligence was the cause—and most patients who do sue get nothing. Clever, persuasive lawyers use the system as a lottery, knowing that a piteous patient-plaintiff can become a windfall whether actually maltreated or not. Reasonable caps on non-economic awards would have a chilling effect on such frivolous litigation and squeeze huge savings out of the system, to the benefit of all.