The U.S. Supreme Court's affirmation of the Affordable Care Act predictably brought renewed calls from Republicans to restrict medical malpractice litigation. Senate Majority Leader Mitch McConnell (R-Ky.), for instance, recently listed "lawsuit reform" among his two specific proposals to replace the law.
What McConnell and other Republicans may not realize is that they have largely achieved victory on tort reform -- and that their very success disproves the promises they attach to it. Meanwhile, their focus on stemming litigation has shifted attention from solving an underrated and tragic problem: the prevalence of medical malpractice itself.
Malpractice payments on behalf of doctors and the inflation-adjusted sum of such payments were at their lowest level in 2011 since the government began collecting such data in the early-1990s, a Public Citizen report released today shows. In actual dollars, last year's payments were the lowest since 1998, amounting to just over 0.1 percent of national health care costs.
Federal data do not include hospitals' payments. However, costs for liability insurance for physicians and hospitals (a proxy for the total cost of medical malpractice litigation) also are at their lowest level in the past two decades. They amounted to slightly less than 0.4 percent of national health care costs in 2010, the most recent year for which such data are is available.
The declines have primarily resulted from state laws that reduce patients' ability to seek redress in court. At least 37 states and territories have enacted legislation limiting malpractice awards for non-economic damages, punitive damages or all damages, according to the National Conference of State Legislators.
But, contrary to the tort reformers' narrative, the decrease in litigation has not remotely curbed health care costs. Even though malpractice payments have decreased 12 percent since 2000, national health care expenditures have increased 96 percent. These facts thoroughly discredit the claim of House Speaker John Boehner (R-Ohio) that malpractice litigation is responsible for soaring health care spending.
The developments in Texas, which in 2003 implemented one of the nation's most restrictive malpractice laws, are even more convincing. Since 2003, the value of malpractice payments in the state has decreased by about 70 percent. But per capita health care spending in the state, especially for Medicare, has outpaced the national average, as Public Citizen reported last year. The Journal of Empirical Legal Studies last month published a study that also concluded that the Texas litigation restrictions have not reduced costs.
The head of the organization that spent the most to campaign for the Texas law does not dispute these findings, nor does he offer any apologies. "We never claimed that lawsuit reform would reduce consumer health care costs," said Jon Opelt, executive director of the Texas Alliance for Patient Access.
The misplaced focus on medical litigation distracts attention from the epidemic of medical errors and hinders efforts to address it.
The Institute of Medicine reported in 1999 that 44,000 to 98,000 Americans die every year from avoidable medical errors. Several subsequent studies have reached conclusions at least as shocking. The Department of Health and Human Services' inspector general, for example, concluded in a 2010 study that about 1-in-16 Medicare patients suffers a serious harm from an avoidable adverse event, and that avoidable errors contribute to the deaths of about 1-in-150 patients. This translates to 700,000 Medicare patients suffering serious avoidable injuries annually, with fatal implications for 80,000 -- and that's just within Medicare.
Several isolated programs have shown that solutions are within reach. For example, Ascension Health in 2003 developed a series of measures in response to the IOM report. By 2010, the organization had reduced preventable deaths by 1,500 to 5,000 a year. Likewise, New York Presbyterian Hospital instituted an obstetrics-safety program between 2003 and 2009. Malpractice compensation payments stemming from obstetrics care at the hospital fell from $51 million in 2003 to just $250,000 in 2009.
"Any hospital could do it -- it's not about money, it's about changing the culture to make it safer to deliver babies," said Dr. Amos Grunebaum, who initiated the program.
The success of these and other programs demonstrates the potential to dramatically reduce harmful medical errors and exposes the human costs of not implementing best practices universally. Policymakers more concerned with their legacies than scoring political points would do well to transfer the energy they have devoted to demonizing litigation to championing proven patient safety measures that would save lives.
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