No Need to Change Med-Mal Tort System

Congress has studies which indicate there is no need to change or interfere with the tort system in medical malpractice cases. Those studies have been published and can be found in the Congressional Budget Office (“CBO”) paper entitled Key Issues in Analyzing Major Health Insurance Proposals. This study produced during Bush’s administration does not support a change in our medical malpractice system. It found that in 2003 approximately 181,000 severe medical injuries occurred in U.S. hospitals that were attributable to negligence. Only 17% of those patients chose to file a malpractice claim. Interestingly, the study reported that patients who did not file a claim may have been unaware that the negligence had occurred, or they may have been discouraged from filing a lawsuit because of the time, effort and expense involved.

In 2008, CBO estimated that healthcare providers are likely to spend more than $30 billion to defend against and pay medical malpractice claims. However, that money represents about 1.5% of national health expenditures and less than 3% of total payments to doctors and hospitals. The report goes on to discuss caps on award damages in medical malpractice cases and determined that savings resulting from such caps would reduce total healthcare spending by less than 0.2%.

The proposed changes we are hearing from the Administration and Congress involve a federal type system. Isn’t that contrary to what most tort reformers advocate out of the other side of their mouths-state’s rights. For example, in the two states where I practice, Mississippi has very restrictive punitive damages laws and Alabama has very restrictive standards of proof in medical malpractice cases. These states have controlled and limited medical malpractice claims very significantly through legislation. Why can’t the states control their own destiny over such a minute matter in the healthcare debate?

The bottom line of the study by CBO was that it had not found consistent evidence that changes in the medical malpractice environment would have a measurable impact on healthcare spending. With such a small percentage of the overall health care costs involved, you wonder why there is such a clamor for change? Could it be that insurance companies see another way to make even more money while denying the injured their day in court?