Sunday, November 14, 2010

Med mal reform and the deficit

The New York Times' Room for Debate - a page dedicated to publish short opinion pieces on interesting timely topics - has just published a series of entries on the topic of "ways to cut the deficit." (Available here). Not to be missed among the 16 different short pieces is one by Michelle Mello, a professor of law and public health at the Harvard School of Public Health in which she tries to (very weakly) advance the myth that tort reform is worth pursuing as a way to reduce the deficit (here). Because, I guess, eliminating or obstructing the rights of victims of medical malpractice to recover is a good way to help the economy! To her credit, Prof Mello admits to the weaknesses of her position and to the lack of support for her conclusions. Unfortunately for her argument, though, what she is left with is a position with no support. She starts by pointing out that medical liability costs amount to about 2.4 percent of total health care spending and that, as a result, the potential for reducing our health care bill through liability reform is modest. "Modest" is an understatement. As has been demonstrated by a number of reports (including one authored by Prof. Mello herself) tort reform would not reduce the costs of health care. Go here for previous posts on this issue. Prof. Mello even admits that the Congressional Budget Office estimates that nationwide implementation of a package of five traditional tort reforms, including caps on noneconomic damages, would save 0.5 percent of health care spending. But, of course, the myth persists, because despite the evidence and the reports available, as she puts it, "it is difficult to precisely estimate the savings . . . especially if the particular reforms that Congress adopts prove more effective than the traditional reforms . . ." In other words, maybe we'll save more if Congress comes up with better alternatives than the ones that don't work. Can't argue with that logic! Prof. Mello suggests better alternatives include reforms that encourage early settlement of disputes, alternatives to litigation, and “safe harbors” for doctors who practice according to well-accepted practice guidelines. Yet, these alternatives have also been discredited. See here, here, here, here, here, here, here, here, here, here and here for just some examples. I am all for alternatives to litigation but not for alternatives that eliminate the right of victims to recover for their injuries or that make it more difficult for them to have access to the courts. I am also intrigued by this notion of "safe harbors" for doctors, which as she describes it does not need to be legislated. This "reform" already exists and works well. It is called the burden of proof that all plaintiffs need to prove when it comes to duty and breach of duty. Her comment seems to be based, again, on the myth that plaintiffs can just go to court and accuse a doctor of negligence without having to support the argument with actual evidence that they deviated from the standard of care - which anyone who knows anything about tort law knows has to be supported with expert evidence too and which is not an easy burden to meet. In the end, having spent more words weakening her own argument than supporting it, Prof. Mello concludes that "[g]iven the abysmal performance of the liability system in serving the needs of injured patients . . . reform is well worth pursuing even if it does not prove to be the next big deficit buster." I wonder what evidence there is about this claimed abysmal performance. What is it so bad about the liability system? Is it that plaintiffs don't get compesated fairly? Hm, could that be because of the many states that limit liability arbitrarily by imposing caps on damages? Or is it that victims don't have easy access to justice? Well, let's see, could that maybe be because of the many states that require plaintiffs to provide certificates of merit even before they have access to the evidence they need to prove their claims? It seems to me that, if the litigation system has resulted in an abysmal performance, maybe the reason is tort reform and not the litigation system itself. All that aside, the question remains, is medical malpractice reform really something to consider in the debate over the deficit? Even assuming it could save some money, what would be the real cost? Do we really want to go tell the victims of medical malpractice that they should give up their rights in order to save a minimal amount of money to help reduce the deficit?

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