Democrats profess great concern about the health care issue. Yet they avoided including any form of medical malpractice reform when passing their major health care legislation in 2010. This despite the fact that abusive tort litigation is one of the driving forces in the high cost of health care.
Such litigation greatly increases malpractice-insurance costs, to the point where yearly premiums can cost hundreds of thousands of dollars in some medical specialties. This not only raises the cost of health care, it actually drives providers out of business and decreases access to quality health care. Liability risks are also a major factor in the costs of developing and manufacturing new drugs and medical devices.
The direct costs of medical tort claims and medical malpractice insurance does not take into account the even larger cost of “defensive medicine.” An overwhelming majority of doctors admit practicing defensive medicine – ordering tests and treatments that are medically unnecessary but that protect them from litigation. Those costs are upwards of $200 billion a year, according to the Pacific Research Institute and PricewaterhouseCoopers. A CBO report requested by Sen. Orrin Hatch (R-UT) admitted that medical malpractice reform could save $54 billion for the U.S. government alone.
Tort law is normally an issue that state legislatures (like Texas and Mississippi) deal with by implementing the measures that have proven effective in eliminating abusive litigation, improving the conditions for medical practice, and protecting both their citizens and their local doctors. These include reasonable caps on noneconomic (and unprovable) damages like “pain and suffering,” limits on attorney contingency fees, a requirement of intentional, knowing, and malicious conduct before punitive damages can be awarded (and caps on punitive damages that are a multiple of actual damages), and limiting liability for a specific medical provider to his proportional share of responsibility.
But there is a federal dimension. Much of health care costs these days are paid through federal programs such as Medicaid and Medicare. So, the federal government also has a stake in reforming health care liability laws. Congress could implement such requirements by conditioning federal funding for Medicaid or SCHIP on states implementing such reform for medical providers in those federal programs.
Congress also has an interest in making sure that greedy tort lawyers who are constantly trying to game the system fail to convince state courts to get around federal preemption in areas where the federal government has exercised its authority for good reason. For example, Congress should make it clear that medical providers (and manufacturers) cannot be sued for injuries caused by products approved, cleared and licensed by the FDA for the purposes for which the products have been used. The development of numerous medical devices and new drugs has prolonged life and improved the health of suffering individuals over the past 75 years, and such innovation depends on a regulatory environment that protects the public without unneeded and unfair complexity and liability risk
Similarly, Congress should make it clear that the federal vaccine injury law that was passed in the 1980s preempts state tort actions. While immunization prevents large numbers of individuals from contracting a particular disease, it is a medical certainty that a small number of individuals will have an adverse reaction no matter how well a vaccine is designed and manufactured. State tort lawsuits were driving vaccine makers out of business before the passage of the federal vaccine law, threatening to eliminate vital vaccines that are essential to the health of America’s children. Now, new state tort actions are threatening vaccine makers again.
The bottom line is that any proposed reforms to our health care system that do not include medical malpractice and other liability reforms cannot be taken seriously. The number-one priority for lawmakers has to be the liability risks for doctors, hospitals, pharmaceutical companies, and medical device manufacturers that are increasing the cost of health care, decreasing access to quality services and products, and driving providers out of business. It’s crucial to protecting and maintaining a system that delivers the best quality of health care to consumers, bar none, in the world.