President Obama: Ignoring tort reform equals administrative malpractice

On December 2, 2009, Dr Kenneth Coleman of Schenectady, NY, wrote in the New England Journal of Medicine that "It is patients who most need tort reform. [1]" Although I doubt any physician in their right mind would argue that point, it is certainly debatable based on what the great state of Texas has done for its economy by tackling this previously insurmountable task. Texas has proven that tort reform isn't just for patients anymore. It would benefit all of our citizens, including our own President Obama, who will be facing another bid for the presidency before we know it. A tort-reform policy is quite possibly the best potential option to ensure the reelection of a president who started off "hot" and then found himself swimming in the hottest of political waters almost as soon as he took his hand off the bible.

Apparently, reforming our archaic shotgun-blast approach to filing medical lawsuits isn't as difficult as it's been billed. According to the Perryman Group report, reform efforts in Texas have yielded an annual increase in spending of $112 billion: $51 billion in goods and services, $2.6 billion in state tax revenue, $468 million from safer products, $15 billion from enhanced innovations, and an increase in 499 000 permanent jobs. To date, 430 000 more Texans now have affordable health insurance. Is it just me? Doesn't anyone else see the "Bs" for billions in all of this? Aren't the "Bs" for billions the bone of contention as the price tag for our current healthcare reform bill? Why not fix our failing economy by tapping into medicine's most abundant natural resource, medical malpractice? By limiting caps at $750 000 and requiring a "burden of proof" like that in criminal law with a unanimous jury, tort reform can be a reality for our entire nation. If I may, I'd like to add a Walton-Shirley clause and demand we wipe the airways clean of those obnoxious "please let me sue anybody for anything now" commercials, especially those that scream, "Have you been injured by your cardiologist?"
 
Are we making too much of this? Is malpractice really that big of a deal in our country? Apparently, that's a big fat YES. Medical-malpractice claims are as American as apple pie. According to several sources, over 80% of the world's claims are filed right here in the good old US of A. Reports have estimated that 50% to 65% of US physicians will be sued in their practice lifetime. We'll pay around 3% of our income annually to employ a good malpractice carrier, and the cost of coverage for the average American doctor has increased over 50% since the late 1980s. Incredibly, it's still rising. About half of the claims are against emergency-room physicians and almost as many are filed against surgeons. In America, no physician is immune, and every poor outcome an opportunity. No one can die here unless it's someone else's fault, and, heaven forbid, never inject any personal responsibility on behalf of the patient into any scenario.
 
Our system of delivering healthcare needs reforming, but it can't happen without tort reform. Unfortunately, the current system places both patients and physicians in the position of pawns in a nationwide lottery for which only malpractice lawyers have the winning tickets. If we'd take a clue from the Texan approach, we could improve patient protection and at the same time, preserve a mechanism by which we could compensate individuals who are victims of negligence or ignorance. In addition, patients would enjoy multiple benefits of tort reform Texas style such as an influx of new physicians and improved access to care. From 2003 to 2004, nearly two thousand physicians were newly licensed in the Lone Star state. Furthermore, existing practices opened up again to obstetric, neurosurgical, radiation, and oncologic procedures. Malpractice insurance fell by 50%, and 70% fewer hospitals were sued. 
 

Tell me. Where is the downside in all of this? (Malpractice lawyers need not answer). 

I agree with Dr Coleman. "The tort system is an extremely poor means of recourse for patients," and I'll add that, for President Obama, sticking with the "status quo" sue fest is an extremely poor means of winning a reelection. Ignoring this grand opportunity to increase revenue, create jobs, stimulate safe product innovation, and provide both protection and compensation for patients can only be described as one thing: Presidential Administrative Malpractice.
 
Wonder if he has any insurance to cover that?

1. Coleman K. It is patients who most need tort reform. N Engl J Med 2009; 361:e115. PMID: 19955516.

Your comments

	President Obama: Ignoring tort reform equals administrative malpractice
	# 1 of 2	January 15, 2010 06:29 (EST)
	Ken Lee	I have always enjoyed your articles Dr. Walton-Shirley.  I am an interventional cardiologist in the "Belly of the Beast" on K St in Washington, D.C.  and I see many pts from Capital Hill, lobbyists and staffers who are all engaged in overhauling our "broken and morally-corrupt"system and saving cardiologists like you and me from ourselves.  They know where I stand,but these pts still ask me my opinion and how I would fix the problem.  My opinions (misguided and uninformed as I must be) will be ignored as not conforming with health policy experts and they treat me as a savant idiot - skilled in PCI but not very bright in other areas.  I went back and reread your article on administrative malpractice - actually forwarded it on to a few of the staffers (no response!) and one of the best ways I can see in overhauling the economics of medicine is to impose universal malpractice liability coverage.  Let the federal govt. indemnify all practicing physicians for malpractice coverage, ensure that no physician can be denied coverage for preexisting claims and make sure those with a higher "risk profile" do not pay more for insurance than low risk practitioners.  This way when we cardiologists do not see the need to perform the unneccessary echo, stress test, nuclear study or cath we can decline and be assured that Uncle Sam will protect us.  What better way to decrease expensive testing and increase access to care for those with appropriate needs. Now before the tort attorneys (my daughter is training to become one - where did I go wrong!) tell me that this would be an unprecedented intrusion into private health care, they should realize that the federal govt. has already provided national indemnification for doctors with the recent H1N1 flu vaccine.  I just spoke to the Dept. of Justice attorney who wrote the indemnification langauage for the flu vaccine that covers us from a class action suit if Guillain-Barre or other unforeseen complication occurs. Here in D.C. the handwriting is on the wall - those in power MUST pass the legislation and their constituency are the trial lawyers, unions and the 30 million who will get the new -very expensive and largely unfunded - medical assistance insurance.  I don't know how it is in KY, but I can't pay the rent on K Street seeing medicaid or medicare pts. I'd be interested in your comments.
	# 2 of 2	January 24, 2010 05:18 (EST)
	Melissa	Ken, I'm so happy that you enjoy the  "Heartfelt" series.  I apologize that I could not get my former posts back to you to publish.  Hope this one works! I'm glad you forwarded this piece.  Even if you don't get a response right away, it might be that you have planted the seed for a future conversation, motivation or legislation.  Who  knows how our thoughts become entangled with those of others.  Many times, it results in something very powerful. Paying the rent is going to be a difficult thing for all of us.  Since the powers that be have decided that cardiologists are driving up the cost of health care (not tort issues, tobacco related illnesses, alcohol related accidents, drug abuse, noncompliance,avoidance of exercise like the plague,  obesity, graft/fraud, or lack of our focus on prevention), steps are being taken right now, today, to ensure an even greater  shortage of cardiologists. No one in their right mind would choose our profession for less pay.  Though Trauma doctors and OB's come close, ask all of the other health professionals how they would like living on a 90 minute timer day in an day our.  I'll bet you would have very few takers and even fewer will choose to live that way without adequate enough compensation to maintain enough staff to insure  access for patients, as inadequate as it might be.   Less is definitely NOT more in this situation and unfortunately, the future is crystal clear for those of us who are going to live it. It's Rose colored glasses all around for those who think they are doing the right thing.  The road to hell is paved with good intentions............... Melissa

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