Tort reform: dangerous and costly

http://www.cnn.com/2012/10/12/health/medical-malpractice/index.html

Opinion: Protect patients'rights, protect patients' lives

By Mary Alice McLarty, Special to CNN

updated 8:53 AM EDT, Fri October 12, 2012

Editor's note: Mary Alice McLarty is president of the American Association for Justice and a partner in McLarty Pope LLP in Dallas. She practices personal injury and civil trial law, concentrating on catastrophic injury cases.

(CNN) -- We are facing a medical malpractice crisis in our country.

More than 98,000 people die every year because of preventable medical errors. That is equivalent to two 737s crashing every day for a whole year. Preventable medical errors are the sixth leading cause of death in the United States and cost our country $29 billion a year.

Lawsuits are only a symptom of the disease. The root of the medical malpractice problem is medical malpractice itself.

The civil justice system gives families of patients who have died or have been injured by medical negligence an avenue to seek accountability. It also provides an incentive to health care providers to improve patient care. Removing that accountability and incentive leaves people at risk for more injures from negligent care.

The calls for medical malpractice reform are misguided because they center on stripping away patients' rights when they should be focused on preventing the deaths and injuries from occurring in the first place.

In his October 5 piece, Dr. Anthony Youn states that the American Association for Justice "is opposed to malpractice tort reform."

We absolutely are. Not just because it violates the Constitution and is an infringement on patients' rights but, more important, because when no one is accountable, no one is safe.

Let's use my home state of Texas to see how eliminating the rights of patients -- or "tort reform" -- does not work for patients or doctors, or consumers.

In 2003, Texas passed Proposition 12, which severely limited the rights of patients by placing a $250,000 cap on non-economic damages and giving extensive immunity to emergency room doctors.

Children, stay-at-home moms and the elderly have been disproportionately impacted by this law because often they do not have substantial economic losses (i.e., lost wages or salary) from medical injuries, but their quality of life has been substantially, even permanently, diminished.

If limiting injured patients' rights actually reduced unnecessary tests and costs, Texas should have significantly lower health care costs than other states. But Texas has some of the highest health care costs and highest number of uninsured people in the country.

In fact, health care costs in Texas have increased at a higher rate than anywhere else in the country, according to a study from the University of Illinois and the University of Texas.

Not only has the cost of health care not decreased, but the quality of care has not improved, either. In July 2011, the federal Agency for Health Care Research and Quality ranked Texas health care the worst in the nation.

Lastly, one of the biggest myths of all is that doctors have flocked to Texas because of the cap on damages. It is simply not true. The number of practicing physicians in Texas was actually increasing at a faster rate before this law was passed.

This applies nationwide. The Government Accountability Office and Congressional Budget Office have both said that taking away patients' rights will not significantly lower health care costs and found no evidence of doctors running unnecessary tests to avoid lawsuits, or "defensive medicine."

Patients will not see the savings and neither will doctors. The Center for Progressive Reform, a regulatory think tank, found that "restricting lawsuits might save doctors a negligible amount on malpractice premiums but the vast majority of any savings will most certainly line the pockets of the insurance companies demanding these restrictions."

This is little more than a handout to medical malpractice insurers whose average profit margin is twice as high as 50 of the most profitable Fortune 500 companies (PDF).

Eliminating patients' rights is not the answer to our nation's health care problems. Instead, we must focus on patient safety efforts. That will undoubtedly lower costs, prevent lawsuits and save Americans' lives each year.