Government health care + U.S. tort system = tax-funded lottery

What do you get when you combine America’s unreformed medical malpractice tort system with a government-run health care system?

A lottery, where the winners share 30 percent or more of the loot with trial lawyers, where there’s no cap on the size or number of “prizes,” and where the costs are all imposed on taxpayers who get no choice about whether they will “play” or how much they’ll have to ante-up.

Just sayin’.

Oh BTW – the current proposals before the House and Senate do nothing to reform our current medical malpractice lawsuit lottery.

Jack McHugh


2 responses to “Government health care + U.S. tort system = tax-funded lottery

  1. Jack, You seem to equate health care tort reform with simply capping medical malpractice awards. I don’t think health care tort reform is that simple nor that awards are the problem. Hear me out.

    There is no doubt a need for tort reform, but I believe such reform should be dealt with separately from Obama’s proposed legislation. There are a few issues that need to be clarified. First, the term “tort reform” is not necessarily synonymous with capping medical malpractice awards. In fact, studies that I’ve read show that medical malpractice awards account for a very small percentage of the overall cost of care. What I don’t believe is measured is the cost of defensive medicine (such as repeat tests so each specialist can be the prescribing physician for the same test rather than accepting the recent results of a test ordered by another doctor.) Defensive medicine practices can’t be directly addressed with tort reform.

    In “Holding Health Care Accountable” by E. Haavi Morreim, the author postulates that because health care law hasn’t kept pace with changes in the medical field, there is no longer a consensus on standard of care. He goes on to argue that because health insurance is often provided by employers, some law falls under federal ERISA, some laws fall under varying state regulations and some cases fall under either or both laws. Just arguing which court is appropriate for hearing a case can run legal bills sky high.

    Awards aren’t driving up the cost of malpractice insurance. The legal and court fees fighting cases –legitimate or not — are the problem.

    It’s not surprising that many attorneys don’t want to see tort reform addressed here because streamlining the process might reduce the billable hours on a per case basis. The awards are actually few and far between because it is very difficult to wage a winning battle for medical malpractice.

    I am personally in favor of establishing health courts, which were studied by the Robert Woods Johnson Foundation. Health courts are staffed with judges who have undergone special training in medicine and medical malpractice so that time educating is greatly reduced. There are a number of criteria recommended to streamline malpractice cases and bring down costs. but that’s another discussion.

    Our current health care tort system is anything but a just system. It is highly biased in favor of those who have the money to hire attorneys, pay hefty court costs and bring lawsuits. I know because after I was made disabled and broke by a slew of doctors who did nothing more than refer me for tests and to more doctors…never coming up with a comprehensive diagnosis nor treatment, I was unable to find one attorney who would take my case without a $20,000 retainer for starters. I was awarded disability through Social Security because my spine is degenerating (causing considerable pain and major bodily dysfunction) as a result of doctors not diagnosing and treating a rare bacterial infection. Now that my Medicare finally kicked in (years after my disability started), I am again searching for a doctor who will help me.

    So you see, the question is should we address the reason the system is preventing me from obtaining competent medical care? or should we address what needs to be changed so that a lawyer will represent me in a medical malpractice suit?

    My experiences seeking competent medical care are chronicled in my blog

  2. Good stuff, thanks Dr. Blue!

    To clarify, I agree that caps on awards are not the best way to deal with this problem. Also, while the numbers and amounts of actual court-ordered awards may not be overwhelming, the THREAT of unreasonable awards – “lottery winners” – drives providers to settle out of court for more than they should; that’s how the few outsized judgements actually infect the entire system.

    People who are hurt by bad actors should be able to sue their pants off, and those bad actors should be driven out of the profession, but our current system does a lousy job at both compensating the injured and disciplining the bad actors, in addition to all its other pernicious effects. Almost anything would be better.

    Specialty health courts are an interesting and attractive idea. An organization formed by “The Death of Common Sense” author Phillip Howard and chaired by Allen Simpson and George McGovern (!) has been promoting this as well.

    Ultimately, I think the best solution for is for courts to allow negotiated levels of liaibility between consumers and providers. Realistically the negotiations would be done by groups representing each side, which would create standard agreements. This is an oversimplification, but an agreement that I can sue you for anything you do OR DON’T DO would mean a higher price the the services provided. If I agree to only hold you liable for the things I’ve actually pay you to do, the services would have a lower price. I could always sue for gross negligence – that’s not negotiable, but neither is it the real problem in our medical system.

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