side note: Yet another article commenting on the Wall Street Journal article we posted here last week. While this author agrees tort reform is being stalled by the Democratic Party, he feels that the end result savings will be far smaller than Republicans promise.

In an op-ed piece today in the Wall Street Journal, attorney/author Philip K. Howard argues that the Democrats are only posturing on the need for malpractice liability reform (aka tort reform). Their real concern, he says, is to protect trial lawyers who are reliable supporters of Democratic politicians.

Howard is right about the pilot project advanced by the White House, which would have little impact on malpractice reform. He also points out that a legislative proposal by Rep. Bart Gordon (R-TN), a Blue Dog Democrat, to fund pilots in several states was watered down by his colleagues, ostensibly to avoid offending the trial bar. Overall, he says, “what has unfolded so far [in Congress] is a series of vague pronouncements and token proposals.”

So far, I am with Howard. Congress has done little about tort reform, and Democrats’ link to the trial attorneys is undoubtedly one of the reasons. But while we do need a better and fairer liability system that would protect both physicians and patients, the amount by which tort reform would lower health costs is open to dispute.

Howard cites estimates by the AMA and other parties that “eliminating defensive medicine could save upwards of $200 billion in health-care costs annually.” To begin with, no reform legislation, no matter how effective, could eliminate defensive medicine entirely, since most physicians will always (and rightly) try to make sure that they don’t do anything or neglect anything that would invite a malpractice suit. But even if we assume that tort reform could save $200 billion, that would be only 8 percent of current health spending. And, according to some observers, the real number is much lower than that.
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side note: Here is a reader response to the NY Times article posted here last week. It comes from an attorney with 25 years of litigation experience on both sides of the bar. His insight is insightful.

To the Editor:

Re “A System Breeding More Waste,” by David Leonhardt (Economic Scene, Sept. 23):

Thanks to Mr. Leonhardt for presenting a balanced view of medical malpractice. I have been a medical malpractice attorney on both sides of the bar for 25 years. Yes, there are many frivolous suits that understandably affect the morale of doctors and result in defensive medicine. On the other hand, there are many frivolous defenses that affect the morale of injured litigants and result in unnecessary defense litigation costs.

Early settlement of indefensible cases is rare. In my experience, one-third of the approximately 1,000 cases I handled as a defense attorney were clear malpractice. Yet only one doctor ever admitted that he was negligent and caused injury to his patient.

Conceding fault at the outset, if malpractice has occurred, would be a good start on the road to the “grand compromise” that Mr. Leonhardt thinks is unlikely.

Peter D. Assail
New York, Sept. 23, 2009

see original

side note: Tort reforms are necessary, but to what extreme should reform tests go? And at what point do reforms impede citizens’ access to the courts and justice?

In his speech on health care reform two weeks ago, President Barack Obama embraced a Bush administration plan to allow some states to experiment with tort reform as a way to reduce the costs of medical malpractice insurance. Though popular with many, to others tort reforms seem like gimmicks designed to save money by putting a thumb on one side of the scales of justice.

Proposals dealing with legal fees, for example, such as “loser pays” or the abolition of contingent fees, make it riskier for individuals and small businesses to sue the rich and powerful in all but the most surefire cases. That’s sort of like taking away David’s slingshot and forcing him to challenge Goliath to a wrestling match.

Caps on noneconomic damages, such as punitive or pain-and-suffering damages, have broader appeal and claim some success in Texas. Yet when Oregon voters were twice asked to amend the state constitution to allow such limits, they said no. One reason may be that caps on damages primarily seem to reward the worst offenders, like trying to reduce prison costs by setting a uniform maximum sentence of, say, 10 years for all crimes. This would have no effect on purse-snatchers or people who write bad checks, but would release killers, kidnappers and rapists early. Any guess how that would do at the polls?

Other proposals are more specific to medical malpractice, such as specialized health care courts and safe-harbor practices to protect doctors from liability even if something goes wrong. But maybe it’s time to consider a more radical reform, such as a system of no-fault insurance for medical malpractice similar to the workers’ compensation system.

Since the adoption of workers’ comp laws early in the last century, workers injured on the job are covered without regard to whether the injury was caused by the negligence of the employer, a co-worker, the worker himself or simply bad luck. Injured workers have their medical bills and other out-of-pocket costs covered as well as receiving compensation for loss of income and certain general damages in accordance with an established schedule. In return, they give up the right to bring an individual lawsuit against their employer and with it the hope of winning a lottery-size award or settlement.
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