In last month’s Washington Post, Common Good chairman Philip Howard wrote:
Health-care reform is bogged down because none of the bills before Congress deals with the staggering waste of the current system, estimated to be $700 billion to $1 trillion annually. The waste flows from a culture of health care in which every incentive is to do more — that’s how doctors make money and that’s how they protect themselves from lawsuits.
Yet the congressional leadership has slammed the door on solutions to the one driver of waste that is relatively easy to fix: the erratic, expensive and time-consuming jury-by-jury malpractice system. Pilot projects could test whether this system should be replaced with expert health courts, but leaders who say they want to cut costs will not even consider them.
Howard is right: Medical malpractice laws in many states, and the defensive medicine practices they encourage, do nothing to improve health care quality and are a driving force behind health care costs. According to the President’s Council of Economic Advisers, “58 percent of tort costs go to pay for administration, claimants’ attorneys’ fees, and defense costs.”
But reform at the federal level is not the answer. Heritage scholars Randolph Pate and Derek Hunter explain:
Not only has this been the position of a handful of conservatives in Congress who have opposed federal tort reforms, but it was also the conclusion of the Reagan Administration. During a similar malpractice crisis in the mid-1980s, the Department of Health and Human Services issued a series of policy recommendations that included state-based tort reforms; however, the report was careful to leave the issue ultimately to the states. While the federal government can play an important leadership role in facilitating and modeling malpractice reforms, it should not dictate solutions.
While the latest congressional attempt to impose nationwide medical malpractice reforms appears to have stalled yet again in the Senate, states are working within their traditional and constitutional roles to solve the malpractice crisis. In 2005, over 400 malpractice reform measures were introduced in 48 state legislatures, and 27 legislatures enacted some kind of malpractice reform. Over the past few years, a number of states—including Texas, Mississippi, Missouri, and Georgia—have passed major tort reform overhauls. Every state has some kind of medical malpractice reform in place.
As states work to amend and improve their malpractice systems, a heavy-handed federal approach is both unwise and unnecessary. Simply put, the malpractice problem calls for using a scalpel, not a sledgehammer. Each state should address its most critical needs in a political climate that respects traditional federal and state authority.