Should the health care bill have overhauled medical malpractice?


General Reference (not clearly pro or con)

[Editors Note:  In the health care reform debate, medical malpractice reform is occasionally referred to as Tort reform.  In the health care context, Tort reform refers to changes in the civil justice system that would reduce litigation and medical malpractice liability.]




PRO (yes)

Sarah Palin, former Governor of Alaska, wrote in her Aug. 21, 2009 web post "No Health Care Reform Without Legal Reform," available at www.realclearpolitics.com:

"You would think that any effort to reform our health care system would include tort reform, especially if the stated purpose for Obama’s plan to nationalize our health care industry is the current high costs...

Many states, including my own state of Alaska, have enacted caps on lawsuit awards against health care providers. Texas enacted caps and found that one county’s medical malpractice claims dropped 41 percent, and another study found a '55 percent decline' after reform measures were passed.

Texas Gov. Rick Perry noted that, after his state enacted tort reform measures, the number of doctors applying to practice medicine in Texas 'skyrocketed by 57 percent' and that the tort reforms 'brought critical specialties to underserved areas.' These are real reforms that actually improve access to health care.

...[R]esearch shows that around $200 billion per year could be saved with legal reform. That’s real savings.

If you want to save health care, let’s listen to our doctors. There should be no health care reform without legal reform. There can be no true health care reform without legal reform."

[Editors Note:  In March 2010, President Obama signed the Patient Protection and Affordable Care Act (HR 3590), the Health Care and Education Reconciliation Act of 2010 (HR 4872), and Executive Order 13535 which restricted federal funds from being used for abortion services. Pro, Con, or Not Clearly Pro or Con positions made prior to the final wording of these three elements of the health care reform legislation may have changed since March 2010.]


Aug. 21, 2009 - Sarah Palin 



Darrell Issa, United States Representative (R-CA), wrote in his Feb. 25, 2010 Politico article "Bipartisan Health Care Reform Must Include Tort Reform":

"As much as $210 billion is spent on defensive medicine annually... This helps drive up insurance premiums that are already too high for many Americans...

As long as out-of-control malpractice premiums are built into medical costs, many will never be able to afford coverage...

Tort reform that reduces frivolous lawsuits and caps outrageous jury awards is a critical component of any solution to bring the cost of health care within reach of every American."

[Editors Note:  In March 2010, President Obama signed the Patient Protection and Affordable Care Act (HR 3590), the Health Care and Education Reconciliation Act of 2010 (HR 4872), and Executive Order 13535 which restricted federal funds from being used for abortion services. Pro, Con, or Not Clearly Pro or Con positions made prior to the final wording of these three elements of the health care reform legislation may have changed since March 2010.]


Feb. 25, 2010 - Darrell Issa 



Charles Krauthammer, MD, syndicated columnist for the Washington Post, wrote in his July 24, 2009 Washington Post article "Why Obamacare Is Sinking":

"...[W]hy is it, to take but the most egregious example, that in this grand health-care debate we hear not a word about one of the worst sources of waste in American medicine: the insane cost and arbitrary rewards of our malpractice system?

...[T]he greatest waste is the hidden cost of defensive medicine: tests and procedures that doctors order for no good reason other than to protect themselves from lawsuits. Every doctor knows, as I did when I practiced years ago, how much unnecessary medical cost is incurred with an eye not on medicine but on the law.

Tort reform would yield tens of billions in savings. Yet you cannot find it in the Democratic bills."

[Editors Note:  In March 2010, President Obama signed the Patient Protection and Affordable Care Act (HR 3590), the Health Care and Education Reconciliation Act of 2010 (HR 4872), and Executive Order 13535 which restricted federal funds from being used for abortion services. Pro, Con, or Not Clearly Pro or Con positions made prior to the final wording of these three elements of the health care reform legislation may have changed since March 2010.]


July 24, 2009 - Charles Krauthammer, MD 



CON (no)

Anthony Tarricone, JD, former President of the American Association of Justice, wrote in his Sep. 22, 2009 Huffington Post article "Tort Reform: A Bad Bargain That Won't Fix Health Care":

"As part of a 'grand bargain' to create a bipartisan health care bill, some have said tort reform should be included...

Look at what the actual data says: 98,000 people dead every year from preventable medical errors, at a cost of $29 billion. Countless more are seriously injured with astronomical costs. The Congressional Budget Office and Government Accountability Office have looked at tort reform multiple times, and said it will save practically no money. They also found no evidence of so-called 'defensive medicine,' finding that doctors run more tests because of the fee-for-service structure, or because of the benefits extra tests have on patient care.

Additionally, a 2006 study from Harvard found that 97% of cases were meritorious, totally debunking the idea that frivolous lawsuits plague our courts. And while 46 states have enacted some kind of tort reform, health care costs have continued to skyrocket, while injured patients or their families often can't seek justice...

Forty-six states have tort reform, and American families still shoulder exorbitant health care costs. All the facts and data say it doesn't work. There's still 98,000 people dead every year from medical errors. But when political gamesmanship and backroom deals take over, the facts fly out the window.

This health care bill has a long way to go. But let's be perfectly clear: patients' rights aren't negotiable. Tort law changes won't fix health care, but only make it more difficult for injured patients to seek justice. Instead of bargaining away patients' rights, Congress should [put] their safety first."

[Editors Note:  In March 2010, President Obama signed the Patient Protection and Affordable Care Act (HR 3590), the Health Care and Education Reconciliation Act of 2010 (HR 4872), and Executive Order 13535 which restricted federal funds from being used for abortion services. Pro, Con, or Not Clearly Pro or Con positions made prior to the final wording of these three elements of the health care reform legislation may have changed since March 2010.]


Sep. 22, 2009 - Anthony Tarricone, JD 



Tom Baker, JD, Professor of Law at the University of Pennsylvania, stated in an Aug. 31, 2009 interview with Newsweek Correspondent Anne Underwood, available on the New York Times website:

"...[tort reform is] a red herring. It’s become a talking point for those who want to obstruct change. But [tort reform] doesn’t accomplish the goal of bringing down costs...

As the cost of health care goes up, the medical liability component of it has stayed fairly constant. That means it’s part of the medical price inflation system, but it’s not driving it. The number of claims is small relative to actual cases of medical malpractice...

According to the actuarial consulting firm Towers Perrin, medical malpractice tort costs were $30.4 billion in 2007, the last year for which data are available. We have a more than a $2 trillion health care system. That puts litigation costs and malpractice insurance at 1 to 1.5 percent of total medical costs. That’s a rounding error. Liability isn’t even the tail on the cost dog. It’s the hair on the end of the tail."

[Editors Note:  In March 2010, President Obama signed the Patient Protection and Affordable Care Act (HR 3590), the Health Care and Education Reconciliation Act of 2010 (HR 4872), and Executive Order 13535 which restricted federal funds from being used for abortion services. Pro, Con, or Not Clearly Pro or Con positions made prior to the final wording of these three elements of the health care reform legislation may have changed since March 2010.]


Aug. 31, 2009 - Thomas Baker, JD 



Jennifer S. Bard, JD, MPH, Director of the Health Law Program at Texas Tech University, wrote in her Nov. 21, 2009 Houston Chronicle article "There's No Proof Tort Reform Reduces Health Costs":

"There is no evidence to suggest that limiting the rights of individuals to bring lawsuits will either lower the cost of health care or increase its quality...

The only evidence we have that defensive medicine, defined as doing extra tests or surgery based on fear of litigation, drives up costs is from the least reliable source possible — the doctors themselves...

...[O]ur system of civil justice, as outlined in the United States Constitution, is not to blame for health costs or medical malpractice. Health reform can take place without litigation reform..."

[Editors Note:  In March 2010, President Obama signed the Patient Protection and Affordable Care Act (HR 3590), the Health Care and Education Reconciliation Act of 2010 (HR 4872), and Executive Order 13535 which restricted federal funds from being used for abortion services. Pro, Con, or Not Clearly Pro or Con positions made prior to the final wording of these three elements of the health care reform legislation may have changed since March 2010.]


Nov. 21, 2009 - Jennifer S. Bard, JD, MPH