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Locking the Courthouse Won't Keep the Hospitals Open


Disclosure: I'm proud to be working with the American Association for Justice to protect patients' rights..

Frank Luntz' sustained assault on the American idiom, the English language and our constitutional rights has scored no more epic triumph than his campaign for "Tort Reform". It's been sold to the public as a way to punish greedy lawsuit happy lawyers. 46 states have passed some version of it. Arguably none more punitive than those passed in Texas in 2003.

And yet, the evidence is mounting that that "Tort Reform" -- ie closing the doors to the court house and gutting Americans' fundamental right to seek legal redress when they have been wronged -- does nothing to reduce medical costs in Texas. This New Yorker feature on McAllen, Texas: "the most expensive town in the most expensive country for health care in the world" makes it painfully clear that Luntz' prescribed "Tort Reform" was not the answer.

This Dallas Morning News article dissects what is really driving medical costs in Texas -- insanely out of control for profit medicine that profits based on how many services Doctors order for patients. Thanks to the 2003 Constitutional Amendment, the medical profession can no longer pretend that this is "defensive medicine", it's straight up long-ball offense. These Dallas doctors are going for the $$$ end zone on every play:

Medical care in Dallas is delivered in a broken market where doctors, hospitals and other providers shower patients with services of diminishing value but staggering cost.

The spending is rooted in the city's proud entrepreneurial culture. Dallas is home to many competing hospital systems and physician practices. But this competition raises costs rather than lowering them, because it rewards those who do more procedures and tests and offers no incentive to spend less.

Scott & White Healthcare in Temple, by contrast, dominates medical delivery in Central Texas yet provides care for far less money. "Logically, the more competition, the lower the price. It doesn't work that way in health care," said Scott & White president and CEO Alfred Knight. "Competition increases the price."

The American Association for Justice is responding to lame-brained efforts to throw "Tort Reform" into the already toxically compromised witch's brew of health care reform with a web site called 98,000 Reasons -- in honor of the 98,000 American estimated to die every year due to botched medical care.


Nat Wilson Turner September 23, 2009 - 1:26pm
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( categories: USA: Domestic Issues )

I think tort reform is a good idea.

If we ever get mandatory universal healthcare. But while the medical business is a for-profit enterprise that is sucking down 16% of GDP? Why don't they have to pay the true costs of their professional negligence incurred in a money-making enterprise, like every other professional?

To me, the template for tort reform is workers' compensation laws. In most states, employers are required to participate in the workers' compensation system. In that system, every worker is covered for workplace injuries, regardless of whether the employer was at fault - and workers get no more for their injuries, even if the employer was very negligent. (The feedback mechanism is in the cost of the premium - a company's actual safety history, and the injury experience of the industry, both impact the costs of workers' compensation coverage.)

Employers are protected from tort suits for enhanced damages under this system - for anything but an "intentional tort", which is omething more than negligence, or even recklessness about workplace safety. (For example, if you employer shoots you with a gun, you can still sue.)

In return for giving up the right to sue, employees get compensation for workplace injuries, even if the employer was not negligent. I know, I know. Government mandated socialism here in America! - but you'll find the same system in almost every state, and it has been there for a very long time.

Now, if healthcare involved the same social bagain - everybody's covered and there is a mechanism in place where the costs of healthcare are spread out to all - then by all means cut the tort lawyers out of the deal.

But, until we get a full coverage, spread-the-costs-of-healthcare solution (and the ability to force lower prices that go with that type of system: see, the rest of the indurialized world) - there is no reason to specially favor doctors and protect them from their professional malpractice. They should be under the same system as lawyers - full responsible for the costs of their malpractice.

And if you don't think the ability to bring a tort claim makes a difference - think about what it would be like if you went to a Six Flags, or Disney World, or Cedar Point, and the amusement park was protected from lawsuits from customers who were injured on the rides. Would you feel as safe getting popped into the air, rolling off a near cliff, and crashing metal cars in an electrical grid?

I wouldn't.

AMC September 23, 2009 - 4:21pm
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