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Tort reform is the missing piece in the health care debate
Written by Ardena L. Flippin, MD, MBA   

It’s difficult to complete a puzzle when pieces are missing. A recent AMA webcast indicated that a significant piece missing in the health reform puzzle was tort reform, and one of the acknowledged factors in the “rising cost of health care in the US is caused by … unlimited malpractice rewards….” (1) Yvonne Mart Fox, Practice Management Consultant, 2009.

H. R. 3200 is designed “(To) provide affordable, quality health care for all Americans and reduce the growth in health care spending…”, but how can this happen if physicians continue to practice “defensive medicine”, the response to the lack of caps on medical malpractice awards?

According to Howard Dean (a physician and former Democratic National Committee Chairman), at a Virginia town hall meeting, tort reform was missing from H.R. 3200 because of reluctance to confront the (heavily contributory) trial lawyers association. I have to think that due to public outcry the President had to address tort reform as a part of health care reform, and seemed to open the door to it in his address to Congress on Sept. 9, 2009. 

The partisan perspectives on tort reform fall along ideological lines. Republicans see the need to change remedies for medical mistakes and create federal caps on the amount of money that juries and judges can award patients who win lawsuits. On the other hand, Democrats seek to reduce the number of malpractice cases that reach the courts without restricting patient’s rights in the event of genuine malpractice. While both perspectives have some merit, ignoring tort reform in the health care debate closes off a potentially important avenue for reducing costs and easing demand for physicians.

There are many arguments as to if, why or how tort reform will effectively reduce health care costs:

    • States that have passed tort reform show that medical malpractice premiums have decreased dramatically (27% in Texas) - reflecting a decrease in malpractice (Gov. Rick Perry: Tort reform must be part of health care reform.  Washington Examiner.com, August 13, 2009);
        • AHRQ research found “that States with relatively high caps were less likely to experience an increase in physician supply than States with lower caps.”
        • “Providers and others are employing fear marketing in an effort to reduce their cost of doing business”.  (Journal of Medical Marketing (2007) 7, 169-175);
        • …”analysis by the Congressional Budget Office found some evidence of links between tort limitations for medical malpractice cases and health care spending, the results are inconsistent”… (Congress of the United States Congressional Budget office December 2008).

This brings me to the nomination of Regina Benjamin, MD to the position of Surgeon General by President Obama, and what her actual role will be in the health reform debate. Dr. Benjamin has been in the trenches practicing family medicine in a twice re-built clinic that she established in 1990 to treat a rural (Gulf Coast) Georgia community of immigrants and many uninsured. Dr. Benjamin is also the first African-American woman to serve on the AMA’s Board of Trustees. Traditionally the Surgeon General’s role in America’s health care has been in name only, occasionally taking a stand on smoking (C. Edward Koop) or birth control (Jocelyn Elders) but these were exceptions. Anticipating that Dr. Benjamin will be approved by the Senate, she not only has the opportunity to elevate the traditional role of Surgeon General in the 21st century, she also has the opportunity to participate in (and hopefully influence) the debates and outcomes of health reform.

What role will Dr. Benjamin, America’s doctor, and President Obama’s choice as someone who “appreciates the immediate need for comprehensive reform”, play as a rational vocal advocate for “comprehensive” health reform?

References

1. Mart Fox, Y., Practice Management Consultant, 2009.  Yvonnemartfox.com

2. Gov. Rick Perry: Tort reform must be part of health care reform.  Washington Examiner.com, August 13, 2009. 

3. Hellinger, Fred J. et al, Impact of State Laws Limiting Malpractice Awards on Geographic Distribution of Physicians, U. S. Department of Health and Human Services, Agency for Healthcare Research and Quality, Center for Organization and Delivery Studies, www.ahrq.gov/research/tortcaps/trotcaps.htm

4. Rutsohn, P., Sikula, A.:  Medical malpractice reform: A societal crisis or fear marketing?  Journal of Medical Marketing (2007) 7, 169-175

5. Key Issues in Analyzing Major Health Insurance Proposals, Congress of the United States Congressional Budget office December 2008.    

About the Author

Image
Ardena L. Flippin, MD/MBA is a professional speaker who focuses on the healthcare crisis facing corporations today.

Dr. Flippin, a Chicago resident, is a retired board certified emergency medicine physician.

 
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