The Absence of Tort Reform in the Health Care Debate

Sen. John McCain (R-AZ) raised the issue of medical malpractice reform with Sen. Lamar Alexander (R-TN) during Saturday’s Senate floor debate of H.R. 3590, the Senate Democratic leadership’s health care bill. On medical malpractice, the Senate bill has only a “sense of the Senate” resolution encouraging states to consider liability demonstration projects. At best, it’s an acknowledgment the issue exists.

The McCain-Alexander exchange, seemingly scripted, starts on page S11953. Here’s part of the exchange:

Mr. ALEXANDER. There has been a lot of talk this week about medical care availability for women in America. In Tennessee, in 45 of our 95 counties, there are no OB/GYN doctors. So pregnant women in Tennessee in those counties have to drive 50, 60, 70 or 80 miles for prenatal health care. They might have to check into a hotel for a few days in a big city in order to have their baby.

Mr. McCAIN. Could I add, the mirror opposite of that is the State of Texas which was hemorrhaging medical doctors and care providers and then, after they enacted a very modest malpractice reform, there was a flood of physicians returning to the State of Texas. Isn’t that the case?

Mr. ALEXANDER. That is exactly right. In fact, a number of us have offered to the Senate, as a part of the way we would go about reducing health care costs, basically adopting the same kind of provisions they did in Texas which still leaves anyone who is hurt, a complete right to recover from that injury, but makes a major change in the availability of doctors to that patient. And in the case of Tennessee, we were talking about OB/GYN doctors to women who are about to have babies. The Senator from Arizona said that would save at least $54 billion over 10 years. No one doubts that reform of medical malpractice, junk lawsuits against doctors, would reduce costs. The point we are trying to make here is, instead of that historically arrogant 2,074-page bill that presumes we know enough to change every aspect of health care in America, why don’t we re-earn the trust of the American people, who have lost a lot of confidence in those of us in Washington, and start taking steps in the right direction to reduce cost? We could do it by adopting our legislation to reduce unwarranted medical malpractice suits. That would be one step.

Rep. John Cornyn (R-TX) discussed the Texas reforms at a talk last Tuesday at the Heritage Foundation.

Join the discussion 2 Comments

  • Tort reform works. We were bleeding good physicians here in Ohio until the Supreme Court validated the constitutionality of caps. We had to elect 2 new justices to accomplish this. Our premiums cooled off and we stopped the bleeding.

    It’s shameful that health care reform in congress has not tort reform. If you love defensive medicine, then you have a lot to look forward to. See under Legal Quality category.

  • Robert Oshel says:

    Senators McCain and Alexander should know better. The malpractice problem isn’t compensation for malpractice; the problem is malpractice itself.

    What we actually need is true malpractice reform to reduce malpractice in the first place. National Practitioner Data Bank data shows that in most states only about two percent of physicians have been responsible for over half of all the money paid out for malpractice since 1990. NPDB data also shows that quite often these two percent have multiple payments in their records but no action by state licensing boards to revoke their licenses or restrict their practices. Similarly, most often no action has been taken by hospital peer reviewers to revoke or restrict their clinical privileges. So the “repeat offenders” continue commit more malpractice.

    To have true malpractice reform the licensing boards and peer reviewers need to get serious about protecting the public from physicians with a pattern of malpractice.

    It is also worth noting that there are fewer than 20,000 malpractice payments each year for all causes although the Institute of Medicine estimates that there are about 100,000 deaths each year from malpractice. Other sources double that number. Only about 28 percent of malpractice payments involve patient death. Thus we can estimate that at most only about 3 to 6 percent of all malpractice victims receive any malpractice payment.

    The real problem isn’t malpractice payments. To save money — and more importantly, to save lives and prevent injury — we need true malpractice reform that reduces malpractice itself. We need to stop treating the symptoms — malpractice payments — and instead treat the disease — malpractice.

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