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Gerry McGill
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Malpractice Tort Reform is a Red Herring in the Health Care Debate

2 comments

Do you know what a red herring is?

Dictionary.com defines a red herring as "something intended to divert attention from the real problem or matter at hand". The term was coined because escaped criminals used to use the strong smell of red herrings to confuse the police’s bloodhounds.

Nowadays, there are a lot of people using the "red herring" of capping rewards in malpractice cases to distract us from the real issue of health care reform. These people would claim that the main problem in our health care system comes from ridiculously expensive malpractice cases, and that doctors are being run out of business by corrupt lawyers and their greedy clients.

Of course, these claims are only loosely based on fact, and serve more to distract the public than to educate them. According to several studies, and prominent American economists, malpractice costs make up only about 2% of our nation’s spending on health care, and health care prices continue to rise even in states where caps have been set on the amount of money a person can win in a malpractice case.

So why do so many people continue to push for malpractice caps as the solution to our health care problem?

For one thing, it’s more easily grasped than the more complicated arguments for health care reform. Media accounts of huge jury verdicts (Remember the woman who spilled McDonald’s coffee on her lap and was awarded millions?) tend to magnify the lotterylike aspects of the tort system, with undeserving plaintiffs reaping huge rewards while deserving victims get shut out.

"Everyone likes to have villains," said Kansas City lawyer Gene Graham, whose firm handles medical malpractice cases. "They want to find someone to blame. Trial lawyers have become convenient targets for people who want to say they’re responsible."

Tom Baker, a law professor at the University of Pennsylvania and author of "The Medical Malpractice Myth," theorized that having "a common enemy" keeps insurance and pharmaceutical companies — the real culprits behind rising costs, he said — from fighting among themselves.

Conversely, [Harvard economist Amitabh] Chandra said: "Everyone likes their doctor and doctors work hard, so we as a society have a tendency to listen to their view of the world."

The Gulf Coast, and Mississippi in specific, has too many uninsured citizens for us to pay attention to these red herrings. According to the Birmingham Business Journal, all of the Gulf Coast states reported Census statistics that put them above the national average number of uninsured adults and children. As it was broken down statistically:

The U.S. average for uninsured adults was 19.85 percent. Florida had the highest level of uninsured adults in the South at 27.4 percent. Arkansas reported 25.7 percent uninsured. Louisiana had 25 percent while Georgia’s rate was 24.5 percent. Mississippi had 23.5 percent of its adults uninsured. Texas was the worst nationally with 30.4 percent of adults uninsured.

We can’t afford to be distracted from the real issues at hand. Health care costs are going up, and medical malpractice caps will not help us make health insurance more affordable; if anything, capping how much an injured party can receive in damages will only hurt people who are already suffering.

2 Comments

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  1. norris hall says:
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    Many of us have always believed that greed is one of the factors that make our healthcare system the most expensive in the world.. Government has a place in keeping businesses…lawyers, drug companies, doctors, insurance companies…from making excessive profits off of people who can least afford it.

    Even Republicans are starting to get behind the concept that government intervention on behalf of consumers is not only necessary…it is also good.

    If we can put arbitrary caps on jury awards, we can put those same caps on the profits that drug companies, hospitals, doctors and insurance companies make.

    Tort reform in itself will only save our 2 trillion dollar a year healthcare system about 0.5%

    In itself…not a significant amount. But if you take the concept further and start putting caps not only on lawyers, but doctors, hospitals , insurance companies and drug companies…now you are talking real savings.

    Government limits to jury awards. Yes.
    Government limits to doctors fees. Yes
    Government limits to drug companies profits. Yes
    Government limits to insurance companies profits. Yes

    Now we are all talking the same language

  2. Gerry McGill says:
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    Norris, I couldn’t agree more with your comments. Another way to limit jury awards might be with the expanded use of mediation in potential malpractice suits. In mediation, which could be either before or after suit is filed, the parties get together with a neutral mediator to see if they could come up with a solution acceptable to both parties.

    Unlike a jury trial in which the jury either finds for or against the defendant doctor, and then sets the damages if they find for the patient, the parties to the mediation try to come up with a “win/win” solution. This could be setting up a life care plan for the patient in exchange for releasing the doctor. More importantly, and possible more effective, since the mediation process is confidential the agreement could even include an apology from the doctor where mistakes were made and/or a change in procedures to prevent future mistakes.

    Doctors, lawyers and patients need to start working together instead of fighting, which in the ultimate scheme only profits the insurance companies. We always hear of doctors being forced out of practice because of high medical malpractice insurance (a claim I do not believe) but I have never heard of a medical malpractice insurance company going out of business because their policies were too cheap.