Consumer Law

Revived Focus on Health Care, Revival of Tort "Reform" Rhetoric

By Kia Franklin

President Obama:

In the coming weeks and months Congress will be engaged in the difficult issue of how best to reform health care in America. I'm committed to building a transparent process where all views are welcome, but I'm also committed to ensuring that whatever plan we design upholds three basic principles: first, the rising costs of health care must be brought down; second, Americans must have the freedom to keep whatever doctor and health care plan they have or to choose a new doctor and health care plan if they want it; and third, all Americans must have quality, affordable, health care.

The Obama Administration's renewed focus on meaningful health care reform--an issue that Obama has always been committed to--has sparked a fire of excitement and debate about what this means and who should be involved in the conversation.

This has especially been the case since Monday, when we learned that folks from the insurance industry will have an influential seat at the table in this discussion, news that brought much anxiety and dismay to patients' rights advocates, who are left feeling like the loser in a game of musical chairs. On the flip side, the industry side seemed to be more than happy to fill up the circle with its reps, perhaps in hope that the agenda for tort "reforms" might finally be accomplished.

Over the next couple of days I will put up related posts on this issue. Before I delve too deeply into it, though, I have to start by saying that the tort "reform" movement is really seizing the moment here to shove its agenda onto the table. If we're going to talk about medical malpractice, we shouldn't just be talking about liability (in fact, this is such a small aspect of what's going on), we should be talking about standards of care, how to improve safety, and questions that impact the quality of a person's experience and health outcomes in the system. The starting point should not be, how can we reduce the amount of money injured patients receive; it should be, how can we reduce the amount of injured patients out there and increase the number of patients who have positive, empowering experiences in the system?

That said, the issue of tort "reform" is here, it has a presence, and so it's important that the right questions be asked and answered. Some useful questions to consider when engaging in the tort "reform" debate: 1) Who are the real and perceived beneficiaries and 2) what are the real and perceived economic benefits, of tort ?reform? in the medical malpractice context? To flesh these questions out means asking things like: will tort ?reform? benefit innocent patients and hard working doctors? Will it save doctors? jobs and protect them from exorbitant malpractice insurance premiums? Will it protect patients from negligent medical care? Will it allow more patients to be covered for quality health care? Will it cut health care costs in a positive way? Or, will it simply transfer costs from those who can afford it but want to increase their profits, onto those who simply cannot afford it and merely want to live a healthy, harm-free life?

Okay, clearly I betrayed my position in the debate with that last question. But I?m not just throwing out questions. Over the next couple of days I?m also going to provide some resources that you can look to yourself to come to your own conclusion.

Read the facts. Tort ?reform? will not reduce costs in a meaningful way. The costs reduction it does achieve will be done at the expense of innocent people seeking to uphold their right not to receive negligent, sub-par medical care. Tort ?reform? will not keep insurance companies from finding a way to bilk doctors, and it will not improve the quality of the health care we receive. In other words, so called medical tort ?reform?, is not (reform, def.: the improvement or amendment of what is wrong, corrupt, unsatisfactory). Real health care reform should focus on patient safety through initiatives like improved technology and record keeping, not medical malpractice caps.

Below is today?s installment of related resources:

Americans for Insurance Reform, affiliated with the Center for Justice and Democracy, released 14, count 'em 14, informative fact sheets about medical liability and health care. Read them here.

Barbara O'Brien, also known as Mahabarbara, has begun a truly insightful series of blog posts about the health care system and tort "reform" over at the Mesothelioma Law & Politics blog. She gets deep into the history of the tort "reform" movement, it's place in the health care debate, who's behind it, and what the impact of tort "reform" really is on the health care system. Seriously, just go and read them now. The third of her series of posts will be up soon.

Regarding costs, on Sunday Eric Turkewitz offered helpful insight about the complaint about premiums--namely, that the complaint is made out of context.

Enjoy these! More to come soon.

Full post as published by TortDeform.com on May 13, 2009 (boomark / email).