Medical Malpractice “Reform” is Part of the National Debate on Health Care

One would have hoped that, by now, the majority of reasonably enlightened elected leaders would not be fooled into believing that changing medical malpractice laws would affect the cost of health care significantly. That should be especially true for Massachusetts representatives and senators, who should not be swayed by exaggerated claims of “frivolous lawsuits” and “defensive medicine.” These arguments have repeatedly been debunked, but somehow they survive.

So one news report from this weekend was particularly disappointing. The New York Times reports that on the television show “This Week with George Stephanopolous” (August 30, 2009)  Senator Orin Hatch (R-UT) said, “We’ve got to find some way of getting rid of the frivolous cases, and most of
them are.” Shockingly, Senator John Kerry (D-MA) replied, “And that’s doable, most definitely.”

The NY Times article, “Would Tort Reform Lower Costs?” has an excellent interview with Tom Baker, a professor of law and health sciences at the University of Pennsylvania School of Law. Professor Baker is also the author of “The Medical Malpractice Myth.” Some of the points Professor Baker made in the interview:

• “Tort reform” does not bring down the cost of health care because the number of claims is actually very small compared to the total cost of health care (around 1%)
• The number of claims has been stable for over twenty years so the rate of law suits is actually declining
• Only 4-7% of those who are injured by doctors or other medical professionals make claims for medical malpractice resulting from preventable medical errors.
• There are not frivolous medical malpractice cases. Cases are screened carefully because they are very expensive to litigate.
• Defensive medicine is only around 2.5% of the cost of health care, but that cannot be separated out from the practice of many physicians to order extra tests to be sure they are screening patients carefully and properly. There is little evidence that doctors are just ordering tests to avoid lawsuits.
• One of the major reasons we have such expensive health care is the administrative costs of private health care insurance.

A more meaningful system of reform would require prompt notification of patients when they are injured as a result of medical errors. Patients have the right to know how and why they were harmed. And, as Professor Baker suggested, there should be improved legal mechanisms for those with non-catastrophic injuries to recover for their damages.

We strongly believe that trading the rights of people injured as a result of medical negligence is absolutely wrong. We urge our readers to contact their legislators, and to insist that changes in medical malpractice laws be left out completely for any health care reform legislation.

We should reform health care and health insurance in the United States. We should make health care more affordable and accessible. But we should not believe the medical malpractice myths perpetuated by the medical lobby. And we should not take away the rights of injured people.