Friday, March 5, 2010

Pres. Obama To Cave On Tort Reform — Adding Provisions to Health Bill That Could Kill 4,800 a Year

That is the title of a comment by Prof. Jonathan Turley, available here. In it, he argues that "While an estimated roughly 100,000 people die each year from malpractice, the Administration is about to make it more difficult to sue doctors and hospitals. . . . The Congressional Budget Office says that the reforms will save $54 billion over 10 years, but it also notes that it could cost thousands of lives. Moreover, $54 billion over 10 years is not a lot of money in the context of $2.5 trillion we spend each year on health care . . ." For more on whether tort reform will reduce health care costs, go here, here, here and here. According to The PopTort, one of the items the President has decided to endorse comes from Senator Tom Coburn (R-OK), who is also a doctor. His idea is to give states the option of enacting either of two ideas, both of which, not surprisingly are designed to make it much more difficult for victims of medical malpractice to be able to get to courts or to recover for their injuries. The first proposal would force patients to present their case before a “screening panel” made of up representatives from the health care industry and attorneys before they would be allowed to present their cases in court. Aside from the fact that there is very little, if any, evidence that med mal reform will have any effect whatsoever on health care reform - other than protecting doctors from having to face lawsuits for their malpractice, there are a number of problems with this idea. First, there's the composition of the panel. Our judicial system is based on a very basic notion of impartiality of the judge and jury system. How can you have a panel composed of members of the "health care industry" judging whether other members of the health care industry should stand trial? And who are these "attorneys" who will be on the panel? Would they be attorneys with experience in medical malpractice claims? Would they be attorneys for the health care industry? ... plaintiffs' attorneys? How would they be chosen? Second, there is the issue of the rules of and standards used by these panels to decide which cases would go forward? How would these rules be enacted and enforced? One major problem with screening panels is that, as everyone knows, in many cases, plaintiffs are forced to file their claims before they have had a chance to clarify all the details needed to eventually prove the case. This is why plaintiffs need to go through discovery. Granted, plaintiffs can't file a claim simply as a means to harass or as a fishing expedition, but this does not happen as often as tort reformers (and doctors) claim because there already are important mechanisms in place to prevent it including the fact that attorneys are subject to severe penalties if they file fraudulent, baseless or improper claims. This idea was tried in New York many years ago and eventually abandoned in what has been called "a resounding failure." For a short comment on some of the problems that resulted in this failure go here. The second proposal, which is similar but not quite the same, is to require patients to go before specialty "health courts." "Health courts” have been proposed many times before and have had little support at the state level. Consumer groups and victims are usually opposed to them. Go here for a report by Americans for Insurance Reforms and here for one by the Alliance for Justice Proposals for health courts I have seen in the past take away injured patients’ right to a jury trial without providing an alternative system that offers equal or better protection than the civil justice system does. Essentially, they force all medical malpractice cases into an administrative system. After that, "the devil is in the details," as they say, and as far as I know there are no details offered yet. Again, there are considerable questions related to the rules that will apply, the standards used to make decisions, the burden of proof, the composition of the court, the right to appeal. Also, eliminating the right to a jury trial would be enough to declare the health care court system unconstitutional in many states right off the bat.

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