I spent many hours over the last few days researching my last post, "What the Right Won't Admit About Tort Reform." Today I found this recent editorial from the Washington Times about health care and tort reform, which says,
To be blunt, this mollycoddling of lawyers is legislative malpractice. In state after state that has tried medical malpractice reform -- there are 25 in all -- costs have gone down, the number of doctors settling in the state has gone up, and patient services have improved.
I assure you, none of this is true. Not even close.
First, it's more like 4o states that have enacted tort reform measures in the past 25 or so years, although perhaps 15 of those states haven't reformed tort enough to suit the Washington Times.
As I documented carefully in the last post, health care costs have not gone down in a single state in which tort has been reformed. Not one. In several states the number of malpractice suits really has gone down considerably. But in those same states health care costs have not been reduced, and the rate of increase is as high and sometimes higher as in other states.
In some of those states, the rate of physician malpractice insurance has gone down, but these savings for doctors are not passed on to patients. There is no evidence that even a penny has been taken off medical bills because doctors are getting a break on their insurance.
I provided the facts and figures and documentation in the last post, and I'm not going to repeat it all here. I'm mostly just venting now. But let's go on ...
Where does the editorial writer get the idea that patient service has improved? In Texas, which has clamped down on tort as much as any state in the union, 25 percent of citizens have no health insurance. Texas for many years has the highest rate of uninsured citizens of any state, and reforming tort hasn't changed a thing. I understand that a whopping large percentage of citizens with insurance have junk policies that leave them utterly vulnerable.
The state of Texas claims that physicians are moving into the state in droves, but I have found no independent corroboration of this. The American Association for Justice -- yes, a trial lawyers' association -- looked at the recent "Physician Characteristics and Distribution" report from the American Medical Association. The data show no correlation between capping malpractice awards and attracting more doctors to a state. In fact, "Using data from 2007, the analysis concludes that states without caps actually have more doctors per 100,000 (319) than states that set limits (283), a difference of 13%."
I have no access to the AMA study, but if anyone reading this does, let me know if the AA for J is telling the truth.
Again, I have a ton of corroboration in the last post. The Washington Times editorial offers no corroboration at all; it just makes these statements that are bare-assed lies. This is what we're up against.
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It always boils down to how much we think our lives are worth. I'd rather that decision be left up to a jury of my peers than some corporation.
In the interest of full disclosure, I will say that I'm a physician, and stand to have an improved quality of life from tort reform.
In the interest of full disclosure, how much do you get paid by the law firm of James F. Early, Esq.* for blogging on their mesothelioma website? Do you earn any additional rewards for parroting on Open Salon many of the pro-tort arguments from their website?
* Of Early, Ludwick, Sweeney & Strauss, a firm of trial attorneys that has achieved over $73 million in just their top ten advertised settlements alone, translating into almost $15 million in revenue using an extremely conservative estimated legal fee of 20%.
I don't begrudge you an improved quality of life, and I'm all in favor of insurance reform that would lower physicians' malpractice premiums. I said that in my earlier post, which I assume you didn't read. However, the issue of high malpractice insurance is entirely separate from the health care crisis, and we know this because in states where physicians' malpractice insurance has been substantially reduced (such as Texas) it has made no difference whatsoever in health care costs, health insurance costs, quality of care, etc.
On the other hand, in several "tort reformed" states people who have suffered genuine harm from malpractice have been royally screwed in court and are not enjoying an improved quality of life at all.
For the record, I do not work for Early, Ludwick, Sweeney & Strauss and have never dealt with them. I do work on contract for the technology company that runs their websites, and I was hired by them because of what I was writing about tort reform and other progressive issues on my personal politics blog. I am not told what to write and express no opinons that I do not hold personally.
What I am paid by them is none of your business, but I assure you it is a hell of a lot less than you make.
As for the quality of life issues, there have been major improvements in access to surgical subspecialty care in states with tort reform. But you had made up your mind at the start that this is not the case, so never mind. Go on believing there's never been a single documented advantage from limiting medical torts. It's just nothing but a great system we have, as far and away the most litigious society on earth!
I'd be very happy to concede that point if (and only if) you provide documentation. However, if that's the best you can come up with, it still comes no where close to the claims being made for the wonderful and magical benefits of tort reform.
As far as making up my mind -- in my previous post I provided copious documentation for every claim I made. I do not pull facts out of my ass, sir; I do genuine research and provide solid evidence to back up everything I say. The post above was a follow up to the previous post, and I didn't bother re-stating the same arguments and re-posting all the documentation that I had just posted hours previously. But it's all there, in the last post.
However, I knew when I wrote the rant above that some lazy blockhead would argue with me without reading the previous post, and there you are.
In any case, I had read your previous post as well as all of your archived posts on medical liability reform, and I have found that you tend to cite sources of a very limited scope and of a particular bias. Just b/c you didn't find a manuscript doesn't mean that the research doesn't exist, or that "All their arguments are lies." So you think there's not a shred of evidence for the existence of defensive medicine, access-to-care limitations from medical torts, or improvements in the above under reform? Okay, well, here are some things I found in peer-reviewed sources in just a cursory Pubmed search:
From Dalton GD, Samaropoulos XF, Dalton AC. Effect of physician strategies for coping with the US medical malpractise crisis on healthcare delivery and patient access to healthcare. Public Health. 2008 Oct;122(10):1051-60. Epub 2008 Jul 10
"For example, unaffordable malpractise
premiums have caused orthopaedic surgeons
to stop performing intricate procedures such as
spinal surgery (39%), to retire early (5.4%) and to
refer more cases to other physicians (55%).30 Neurosurgeons
are also referring more complex cases
to their colleagues (70%), while physicians in this
specialty no longer operate on children (75%), perform
spinal surgery (34%), treat brain tumours
(23%) or perform aneurysm surgery (71%).31"
"According to a recent survey by the American
College of Emergency Physicians, three-quarters
of the emergency departments throughout the USA
are experiencing a severe shortage of specialists
including neurosurgeons, orthopaedic surgeons,
plastic surgeons, hand surgeons and Ob-Gyns.37 Liability
concerns have contributed to these staffing
shortages and have caused specialists to limit the
types of emergency cases they treat as well as
the number of hours they serve on-call to hospital
emergency departments.23,24"
"a May 2003 survey of 824 high-risk medical
specialists (emergency medicine, general surgery,
orthopaedic surgery, neurosurgery, obstetrics/
gynaecology and radiology) in Pennsylvania revealed
just how prevalent the practise of positive
defensive medicine is in a state that has experienced
the most severe effects of the malpractise
crisis.53 Almost every physician (92%) surveyed
reported practising positive defensive medicine."
"These costs for extra medical care are usually
very high, because many of the procedures
that physicians use to practise positive defensive
medicine are expensive (e.g. the average cost of
magnetic resonance imaging is $800). When the
costs of these procedures and estimates of the
prevalence of positive defensive medicine are considered
together, it is obvious that the overall cost
of positive defensive medicine is tremendous. In
fact, it has been estimated that positive defensive
medicine accounts for 5e9% of the annual healthcare
budget in the USA or $70-120 billion per
year.56-58"
From Donlen J, Puro JS. The impact of the medical malpractice crisis on OB-GYNs and patients in southern New Jersey. N J Med. 2003 Sep;100(9):12-9
"Most significant, thirteen practices in the region indicated that at least one of their physicians had stopped delivering babies, two additional practices indicated that they had ceased delivering or caring for high-risk babies, and six practices indicated that at least one of their physicians had ceased performing surgical procedures."
From Kessler DP, Summerton N, Graham JR. Effects of the medical liability system in Australia, the UK, and the USA. Lancet. 2006 Jul 15;368(9531):240-6.
“Empirical evidence from the USA shows that direct
limits on damages reduce malpractice pressure on doctors,
and in turn, reduce defensive medicine.”
“In a series of studies, Kessler and McClellan21 used
longitudinal data for almost all elderly patients admitted
to hospital with serious cardiac illness, matched with
information on the existence of law reforms from the US
state in which the patient was treated. They reported that
reforms that directly limited liability—such as caps on damages—reduced hospital expenditures by 5–9% in the
late 1980s”
From Studdert DM, Mello MM, Sage WM, DesRoches CM, Peugh J, Zapert K, Brennan TA. Defensive medicine among high-risk specialist physicians in a volatile malpractice environment. JAMA. 2005 Jun 1;293(21):2609-17.
"We found that defensive medicine
was widespread among high-risk specialists
practicing in Pennsylvania, with
9 of 10 respondents reporting defensive
practices. Overordering of diagnostic
tests, unnecessary referrals, and
avoidance of high-risk patients were the
most common forms; three quarters of
respondents said that they engaged in
at least 1 of these defensive practices
“often.”"
* *
The bottom line is that there is evidence for both sides, and it is a legitimate debate. What is not legitimate is saying things like "All their arguments are lies," which flies in the face not only of logic but of published research. Your views are irresponsibly partisan, and that's what bothers me. The world is not so black-and-white.
1. Where the cost of malpractice insurance has been reduced (as in Texas), it makes no measurable difference to overall health care costs, the cost of health insurance, or anything else that matters to the health care consumer. It is a benefit to physicians, period.
2. There are means other than tort reform to reduce the cost of physicians' malpractice insurance. In fact, in many states in which tort has been "reformed" and malpractice cases reduced, physician malpractice insurance stayed the same.
And why is that? Because the insurance companies didn't pass their savings onto physicians, and the state insurance boards didn't step in and make them. So if you are concerned about the cost of malpractice insurance, what you want is INSURANCE reform, not TORT reform.
So, all of your arguments and documentation related to physician malpractice insurance is irrelevant. This also tells me that you don't read carefully, because I explained all that in the first post.
Second, yes, there are all manner of surveys in which physicians self-report that X amount of their tests, referrals, procedures, etc. are made because of "defensive medicine." And I think most of the physicians who self-report that believe this is true. But the fact remains that in states in which tort is "reformed" and the number of malpractice cases drops, it makes no difference in overall medical costs, and there is no overall measurable difference in the tests, procedures, etc. that doctors order.
So all of your documentation that comes from what doctors report they do, and not from objectives measures of what doctors actually do before and after tort is reformed, is irrelevant. Again, had you read the first article more carefully, you would have known that.
Finally, you site the old Kessler studies, which I have run into before because they are about the only objectively documented evidence of an actual "defensive medicine" effect in existence. However, According to Annenburg, the effects documented by Kessler et al. have not been duplicated in other studies. Kessler is an outlier, in other words, so we can disregard Kessler.
On Jan. 8, 2004 , the Congressional Budget Office also said the Kessler-McClellan study wasn’t a valid basis for projecting total costs of defensive medicine.
CBO: When CBO applied the methods used in the study of Medicare patients hospitalized for two types of heart disease to a broader set of ailments, it found no evidence that restrictions on tort liability reduce medical spending. Moreover, using a different set of data, CBO found no statistically significant difference in per capita health care spending between states with and without limits on malpractice torts.
At the time of this report, the nonpartisan CBO was headed by Douglas Holtz-Eakin, who previously was chief economist for President Bush's Council of Economic Advisers.
And, since you've got nothin' else, you've got nothin'. No proof, no argument, no documentation. And I don't have more time to waste on someone whose arguments amount to non sequiturs, so I'm cutting off comments.