Tort reform has become a sort of all-purpose Republican cure for what ails the American health care system.
Indeed, long before GOP leaders acknowledged any need for health care reform, Republicans were pushing caps on damages in medical malpractice suits.
Now that a majority of Americans - 75 percent in a poll released Friday - see the need for health care reform, Republicans are trotting out damage caps as a way to control soaring health care spending. Their claim likely will get a prominent mention from GOP leaders at President Barack Obama's bipartisan health care summit on Feb. 25.
There might be good reasons to consider changes in how malpractice suits are handled. But the idea that tort reform would significantly slow, or even alter, the trajectory of U.S. health care spending is not among them.
The nonpartisan Congressional Budget Office recently estimated that tort reform could save $41 billion over the next decade, a figure now being touted by proponents.
To most of us, $41 billion is a lot of money. In the world of health care, it's a tiny drop in a very large ocean. Between now and 2019, annual health care spending will increase by $2 trillion. Not to $2 trillion. It will grow by $2 trillion, from $2.5 trillion to about $4.5 trillion.
The projected savings from capping malpractice awards works out to a 2 percent reduction in what we otherwise would spend.
To think that would significantly change health care costs is like believing that a Mack truck can be diverted by a June bug - even a moderately large June bug - hitting its windshield.
There are reasons to suspect even that analogy overstates the result.
Most of the projected savings from tort reform presumably would come from reducing the practice of "defensive medicine" - extra tests doctors sometimes order to protect themselves from being sued.
But capping malpractice damages - and not even all damages, just those for what is commonly called "pain and suffering" - does not reduce the chance that a patient will sue. So why would doctors stop practicing defensive medicine?
One rather cynical answer is that the caps might reduce the chances that at least some patients could sue: The elderly, young adults and the poor.
So-called economic damages represent the largest part of malpractice awards. They are intended to be payment for things such as lost wages or future medical costs.
Elderly patients already are out of the work force, so their economic damages are minimal. The same is true of young people and poor people whose lost wages may not be enough to cover the cost of bringing suit.
Republican dogma holds that too many "frivolous" malpractice cases already are filed by "greedy trial lawyers." The evidence says otherwise. Most malpractice victims never sue and never get compensation, suggesting "trial lawyers" are missing a lot of business.
One recent Harvard study, based on records in New York hospitals, found that fewer than half of patients who suffered what physician reviews considered to be malpractice actually bring suit.
That's not the only flaw in the current system. Some people who didn't get bad care - just a bad outcome - sue. Those cases should be weeded out.
But damage caps won't do that. The only people affected by damage caps are those who were harmed by preventable errors.
Making the system fairer to doctors and patients is a worthwhile goal. But selling "tort reform" as a miracle cure for health care spending? That's just snake oil.
http://interact.stltoday.com/blogzone/the-platform/published-editorials/2010/02/caps-wont-slow-soaring-health-spending/
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Illinois Supreme Court strikes down medical malpractice caps
By: Mike Colias Feb. 04, 2010
(Crain's) - The Illinois Supreme Court on Thursday struck down limits on jury awards in medical malpractice cases passed by the Legislature four years ago amid spiking liability costs for medical providers.
The court ruled that the caps on pain and suffering and other non-economic damages - $500,000 per case for doctors and $1 million for hospitals - are unconstitutional.
The court's opinion upholds a 2007 ruling by a Cook County Circuit Court judge determining that the law violated the Illinois Constitution's "separation of powers" clause, essentially finding that lawmakers interfered with the right of juries to determine fair damages.
It's the third time the state's high court has quashed limits on medical malpractice awards, having tossed out similar laws in 1976 and 1997.
The ruling is a blow to physicians, hospitals and malpractice insurers, who successfully argued in 2005 that frivolous lawsuits and runaway jury verdicts were driving up insurance rates and forcing physicians to leave the state.
The court's ruling stems from a malpractice lawsuit filed in 2006 by the family of a girl who suffered brain damage during her delivery at Gottlieb Memorial Hospital in Melrose Park. Illinois' trial bar selected the suit as its "test case" to challenge the law.
Liability insurance rates for Illinois doctors generally have held steady or dipped slightly since the caps took effect in August 2005, according to survey data from Medical Liability Monitor, an Oak Park-based trade publication. That's roughly in line with national trends.
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