Straight Talk on Tort Reform from Texas

Texas passed sweeping tort reform legislation in 2003 that, to a great extent, eliminated medical malpractice cases in the Lone Star State. Jennifer Bard is the Alvin R. Allison Professor of Law and director of the Health Law Program at Texas Tech University School of Law and an adjunct associate professor in the Department of Psychiatry, Texas Tech University School of Medicine, and she incorporates the Texas experience with tort reform into her analysis which concludes that such measures do not reduce health care costs. Here is her piece which appeared Saturday in the Houston Chronicle:

It’s not as rare as you think for President Barack Obama and Gov. Sarah Palin to be in complete agreement on an issue of national importance.

In August, she wrote on her Facebook page that “we cannot have health care reform without litigation reform.” Speaking to the American Association of family physicians a few weeks later, President Obama said, “I have talked to enough doctors to know that defensive medicine may be contributing to unnecessary costs. … So I am proposing that we move forward on a range of ideas about how to put patient safety first and let doctors focus on practicing medicine.” Both of them are wrong. 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. In fact, were this true, Texas would have the cheapest and best health care in the nation. The provisions of the tort reform legislation passed in 2003 have essentially eliminated medical malpractice suits. Indeed, things are so bad the lawyers for the insurance companies are complaining about the loss of business.

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. Doctors’ objections to law suits aren’t financial — they are philosophical. Doctors are on the whole good people who devote their lives to helping others. Yet somewhere in their training they acquire the idea that this puts them beyond the constraints and hassles faced by every other professional. Lawsuits are time-consuming and embarrassing. They require explaining one’s actions to a group of nondoctors, something doctors feel inappropriate. What doctors want isn’t reform, it is an exemption. And that’s just not how we do things in the United States.

As in all other cases involving a professional, every medical malpractice case depends on another physician’s testimony that the offending doctor caused the patient’s harm by acting below the standard of a reasonable physician in similar circumstances. To say that a jury isn’t qualified to choose the testimony of one expert witness over another in a medical malpractice case is to say they shouldn’t be allowed to do so in cases involving exploding tires because they are not automobile engineers. Unless Obama and Palin are interested in trading in our legal system for one with less citizen input — say one more like China’s — then not only isn’t litigation reform a necessary part of health care reform, it is no part of health care reform.

But don’t throw out the baby with the bath water. Perhaps doctors are practicing defensive medicine, but that doesn’t mean litigation reform will change their habits. First, it is hard to attribute overtesting to fear of litigation when the current payment system financially rewards doctors and hospitals for the number of tests they order and procedures they run, rather than on the time they spend talking to the patient to find out what’s wrong. Second, it is entirely possible that those interested in selling them malpractice insurance have greatly inflated the risk. After all, given the relative rareness with which medical malpractice suits are brought, fear of litigation should no more be motivating a doctor’s decisions than fear of alien abduction.

No one has ever suggested that civil litigation can directly reduce medical error. Reducing infection rates by adopting uniform protocols for hand-washing and instrument sterilization is not the same as pressuring a company to withdraw a defective product from the market. But our 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 — both systems may be broken but they are not dependent on each other.

So perhaps if Obama and Palin really want to lower the cost of health care and improve its quality, they should be listening to economists and safety experts rather than either doctors or lawyers.

This analysis is spot on and from someone who does not appear to have "skin the game." Yes she is a lawyer, but not one that makes her living representing those injured by medical malpractice or working for the insurance companies that hire lawyers to defend doctors when claims are pursued against them for malpractice. We should consider her analysis in the objective light in which it is presented.