A new article in the business magazine Forbes debunks the notion that tort reform has led to fewer lawsuits against doctors, done anything to lower doctors' malpractice insurance premiums and most importantly, has contributed at all to patient safety.
The article, "Can Obamacare Improve Patient Safety? Tort Reform Hasn't", takes an in-depth look at one headline-grabbing medical malpractice case in particular. That lawsuit grew out of the birth of a little girl named Shannon Reilly in 2002. Shannon was born with severe cerebral palsy, which was caused by prolonged lack of oxygen prior to the delivery. The hospital where Shannon was born argued that there had been a catastrophic placental abruption - a tearing of the placenta away from the uterus. Shannon's lawyers and experts argued that the labor and delivery nurse had not noticed that the baby's heartbeat had repeatedly slowed over 40 minutes and that the nurse had not taken the appropriate action. The article follows the twists and turns of the case and most interestingly, contains interviews with members of the jury who very conscientiously sorted through technical testimony and made every effort to "get it right". In the end, the jury returned a $130 million dollar verdict in favor of the little girl who had been brain-damaged during birth.
After observing the case, reading the transcript, interviewing the jurors and attorneys, and examining the literature analyzing the impact of 25 years of tort-reform measures, the author came to a surprising conclusion: "medical malpractice lawsuits like this one are very different from the "spilled-coffee" and "loss of psychic powers" cases that fueled headlines of tort abuse in the 1980's and 1990's. Rather, large medical malpractice verdicts may be the strongest drivers in making healthcare safer."
Here are a few of the particularly noteworthy points from the article:
1. The cost of defending malpractice claims and compensating victims was $6.6 billion in 2009. That's not a small number, but it represents a very small percentage of overall healthcare costs: just 0.3% of the $2.5 trillion spent on healthcare that year.
2. When compared to the number of medical errors, the number of medical malpractice actually filed each year is a very small percentage of the legitimate cases that could be filed. Most experts agree that the number of medical malpractice lawsuits filed has held steady at about 85,000 annually for many years. The major studies of medical errors are consistent, as well. The most highly-quoted study was conducted by the Institute of Medicine at the U.S. National Academy of Sciences. Its report, To Err is Human, found that avoidable medical errors killed as many as 98,000 people each year. That was more than automobile and workplace accidents combined. They also estimated that another 300,000 people were injured each year. By 2011, a study in Health Affairs estimated the number of avoidable deaths was probably closer to one million.
3. So-called "defensive medicine" is one giant myth. Tort reformers rail against unnecessary, redundant procedures that doctors supposedly order to protect themselves against liability. This simply is not a serious factor in driving healthcare costs according to a Kaiser Family Foundation recent study. And both the Congressional Budget Office and the Government Accountability Office have concluded that "defensive" medicine is widely practiced by doctors not out of malpractice concerns, but because doing so generates extra income for them. The CBO put it this way: "So-called defensive medicine may be motivated less by liability concerns than by the income it generates for physicians or by positive (albeit small) benefits to patients."
There's much more information in this interesting article. We recommend reading the whole article.