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The Consensus is that Defensive Medicine Caused by Unlimited Lawsuits is a Real Problem

Committee Reports, 112th U.S. Congress (2011-2012), House Report 112-470 as catalogued by The Library of Congress

President Obama himself acknowledged the harm caused by defensive medicine, stating `I want to work with the AMA so we can scale back the excessive defensive medicine that reinforces our current system, and shift to a system where we are providing better care, simply--rather than simply more treatment.' 21

[Footnote] The President himself weighed in on the issue in more detail, writing in the  New England Journal of Medicine  that `the current tort system does not promote open communications to improve patient safety. On the contrary, it jeopardizes patient safety by creating an intimidating liability environment.' 22

[Footnote] In his 2011 State of the Union Address, President Obama said `I'm willing to look at other ideas to bring down costs, including one that Republicans suggested last year: medical malpractice reform to rein in frivolous lawsuits.' Although the Associated Press has written that `Republicans may be forgiven if [the President's] offer makes them feel like Charlie Brown running up to kick the football, only to have it pulled away, again,' 23

[Footnote] the President should fulfill his promise and support time-tested reforms that have proven successful for over three decades in California.

[Footnote 21:  Text: Obama's AMA Speech on Health Care (CBS News) (June 15, 2010).]

[Footnote 22:  `Making Patient Safety the Centerpiece of Medical Liability Reform, ` Sen. Barack Obama and Sen. Hillary Clinton,  New England Journal of Medicine  (May 25, 2006).]

[Footnote 23:  Associated Press, `Fact Check: Obama and His Imbalanced Ledger' (January 26, 2011).]

A survey conducted for the bipartisan legal reform organization `Common Good,' whose Board of Advisors included Eric Holder, who is now President Obama's Attorney General, found that more than three-fourths of physicians feel that concern about malpractice litigation has hurt their ability to provide quality care in recent years. When physicians were asked, `Generally speaking, how much do you think that fear of liability discourages medical professionals from openly discussing and thinking of ways to reduce medical errors?' an astonishing 59% of physicians replied `a lot.' 24

[Footnote]

[Footnote 24:  See  Harris Interactive, `Common Good Fear of Litigation Study: The Impact of Medicine,' Final Report (April 11, 2002) (`Executive Summary') at 30 (Table 17), available at www.ourcommongood.com/news.html.]

President Obama's own doctor of over two decades also supports medical tort reform. David Scheiner was President Obama's doctor from 1987 until he entered the White House. As was recently reported in  Forbes  magazine:

[Dr. Scheiner is] still an enthusiastic Obama supporter, but he worries about whether the health care legislation currently making its way through Congress will actually do any good, particularly for doctors like himself who practice general medicine. `I'm not sure [Obama] really understands what we face in primary care,' Scheiner says. . . .

Scheiner is critical of Obama's pick for Health and Human Services secretary--Kansas Gov. Kathleen Sebelius, who used to work as the chief lobbyist for her state's trial lawyers association. . . .

Scheiner says he never thought it was appropriate to talk about health policy with Obama, especially once he became a U.S. Senator. The one exception was medical malpractice reform. `I once briefly talked to him about malpractice, and he took the lawyers' position,' he says. . . .

Scheiner, like most others in his profession, thinks that it should be harder to sue doctors and that awards should be capped. He says that he and other doctors must order too many tests and imaging studies just to avoid being sued. 25

[Footnote]

[Footnote 25:  David Whelan, `Obama's Doctor Knocks ObamaCare,' Forbes.com (June 16, 2009).]

The National Commission on Fiscal Responsibility and Reform

The National Commission on Fiscal Responsibility and Reform, which was created by President Obama, supports health care litigation reform in its final December 2010 report. As the Commission states in a report that was endorsed by 61% of its members (by a vote of 11-7):

Most experts agree that the current tort system in the United States leads to an increase in health care costs. This is true both because of direct costs--higher malpractice insurance premiums--and indirect costs in the form of over-utilization of diagnostic and related services (sometimes referred to as `defensive medicine'). The Commission recommends an aggressive set of reforms to the tort system.

Among the policies pursued, the following should be included: (1) Modifying the `collateral source' rule to allow outside sources of income collected as a result of an injury (for example workers' compensation benefits or insurance benefits) to be considered in deciding awards; (2) Imposing a statute of limitations--perhaps one to three years--on medical malpractice lawsuits; (3) Replacing joint-and-several liability with a fair-share rule, under which a defendant in a lawsuit would be liable only for the percentage of the final award that was equal to his or her share of responsibility for the injury; (4) Creating specialized `health courts' for medical malpractice lawsuits; and (5) Allowing `safe haven' rules for providers who follow best practices of care.

Many members of the Commission also believe that we should impose statutory caps on punitive and non-economic damages, and we recommend that Congress consider this approach and evaluate its impact. 26

[Footnote]

[Footnote 26:  The National Commission on Fiscal Responsibility and Reform, `The Moment of Truth' (December 2010) at 34-35.]

Since President Obama signed the health care bill into law, the co-chairs of the Commission, Erskine Bowles and Alan Simpson, recommended that Congress enact a law to `[p]ay lawyers less and reduce the cost of defensive medicine' by `[e]nact[ing] comprehensive medical malpractice liability reform to cap non-economic and punitive damages and make other changes in tort law.' 27

[Footnote]

[Footnote 27:  Co-Chair Proposal, at 32, available at http://www.fiscalcommission.gov/sites/fiscalcommission.gov/files/documents/CoChair--Draft.pdf.]

The New York Times

According to the New York Times:

The fear of lawsuits among doctors does seem to lead to a noticeable amount of wasteful treatment. Amitabh Chandra--a Harvard economist whose research is cited by both the American Medical Association and the trial lawyers' association--says $60 billion a year, or about 3 percent of overall medical spending, is a reasonable upper-end estimate.

Perhaps the best-known study of defensive medicine--by Dr. Mark McClellan, who later ran Medicare in the Bush administration, and Daniel Kessler--compared cardiology treatment in states that had capped malpractice awards in the 1980s and early '90s with those that didn't. In the states without caps, stenting and other treatments were more common, but the outcomes were no better. . . .

[T]he researchers in the field tend to agree about the scale of the problem--and how much malpractice reform might accomplish. . . . Dana Goldman, director of the Schaeffer Center for Health Policy at the University of Southern California, adds: `It is one of the things we need to address if we want to bend the cost curve.' 28

[Footnote]

[Footnote 28:  David Leonhardt, `Medical Malpractice System Breeds More Waste,' The New York Times (September 23, 2009).]

The New York Times also reported that Uwe E. Reinhardt, an economist at Princeton University, has written that the massive costs of lawsuit abuse in the United States distinguishes it from other countries:

Health-services researchers call the difference between these numbers [the health care spending of different countries], `excess spending.' That term [conveys] a difference driven by factors other than G.D.P. per capita. Prominent among these other factors are: . . . higher treatment costs triggered by our uniquely American tort laws, which in the context of medicine can lead to `defensive medicine'--that is, the application of tests and procedures mainly as a defense against possible malpractice litigation, rather than as a clinical imperative. 29

[Footnote]

[Footnote 29:  Uwe E. Reinhardt, `Why Does U.S. Health Care Cost So Much? (Part I),' The New York Times (November 14, 2008).]

We know that our medical liability costs are at least twice those in other developed countries 30

[Footnote] and make up 10 percent of all tort cases. That's the macro perspective, but what about the physicians, hospitals or other health care providers on the wrong end of a lawsuit? They can expect to pay an average of $26,000 to defend a case that is dropped before trial and as much as $140,000 if the case actually goes to court, regardless of the merits. 31

[Footnote] So, even when good doctors win their lawsuits, which happens the vast majority of the time, they still lose. They lose valuable patient time, money, and peace of mind while watching their professional reputations impugned.

[Footnote 30:  Manhattan Institute's Center for Legal Policy study (2008).]

[Footnote 31:  `Reviving Tort Reform,' Investor's Business Daily, 11/15/10.]

USA Today

The USA Today editorial board also recently came out supporting tort reform, citing the high cost of defensive medicine:

A study last month by the Massachusetts Medical Society found that 83% of its doctors practice defensive medicine at a cost of at least $1.4 billion a year. Nationally, the cost is $60 billion-plus, according to the Health and Human Services Department. [And a] 2005 study in the Journal of the American Medical Association found 93% of Pennsylvania doctors practice defensive medicine. The liability system is too often a lottery. Excessive compensation is awarded to some patients and little or none to others. As much as 60% of awards are spent on attorneys, expert witnesses and administrative expenses . . . The current system is arbitrary, inefficient and results in years of delay. 32

[Footnote]

[Footnote 32:  USA Today editorial, `Our View on `Defensive' Medicine: Lawyers' Bills Pile High, Driving Up Health Care Costs,' USA Today (December 29, 2008).]

The editors of USA Today concluded that `one glaring omission' from the health care law `was significant tort reform, which was opposed by trial lawyers and their Democratic allies. CBO estimates that restricting malpractice suits would save $54 billion over 10 years by curbing tests and procedures that patients don't really need. So why not add it?' 33

[Footnote]

[Footnote 33:  USA Today editorial, `Don't try to repeal the new health care law--improve it' (November 18, 2010) at 9A.]

The Director of Pediatric Neurosurgery at Johns Hopkins

One of the nation's top surgeons, with credibility and acclaim the world over for the pioneering surgeries he has and his personal story of overcoming hardship, recently severely criticized the dominant health care legislation before Congress. Benjamin Carson, director of pediatric neurosurgery at the Johns Hopkins Medical Institutions in Baltimore, Maryland, and recipient of numerous awards including the Presidential Medal of Freedom, criticized in a recent interview the approach of the current bills for their mandate, creation of a `public option,' and lack of malpractice liability reform. He pointed to excessive litigation, pointing out how much malpractice insurance and other forms of `defensive medicine' to protect against lawsuits add to medical costs. In the interview with a local television station, Carson insisted that tort reform must go `hand in hand' as part of any true health care reform. According to Dr. Carson, `We have to bring a rational approach to medical litigation.' `We're the only nation in the world that really has this problem. Why is it that everybody else has been able to solve this problem but us? Simple. Special interest groups like the trial lawyers' association. They don't want a solution.' 34

[Footnote]

[Footnote 34:  John Berlau, `Gifted Hands' Surgeon Rips Into Obamacare,' BogGovernment.com, available at http://biggovernment.com/2009/10/14/gifted-hands-surgeon-rips-into-obamacare/.]

The Wall Street Journal

As summarized by Kimberly Strassel in the Wall Street Journal:

Tort reform is a policy no-brainer. Experts on left and right agree that defensive medicine--ordering tests and procedures solely to protect against Joe Lawyer--adds enormously to health costs. The estimated dollar benefits of reform range from a conservative $65 billion a year to perhaps $200 billion. In context, Mr. Obama's plan would cost about $100 billion annually. That the president won't embrace even modest change that would do so much, so quickly, to lower costs, has left Americans suspicious of his real ambitions.

It's also a political no-brainer. Americans are on board. Polls routinely show that between 70% and 80% of Americans believe the country suffers from excess litigation. The entire health community is on board. Republicans and swing-state Democrats are on board. State and local governments, which have struggled to clean up their own civil-justice systems, are on board. In a debate defined by flash points, this is a rare area of agreement. Former Democratic Sen. Bill Bradley, in a New York Times piece, suggested a `grand bipartisan compromise' in which Democrats got universal coverage in return for offering legal reform.

The only folks not on board are a handful of powerful trial lawyers, and a handful of politicians who receive a generous cut of those lawyers' contingency fees. The legal industry was the top contributor to the Democratic Party in the 2008 cycle, stumping up $47 million. The bill is now due, and Democrats are dutifully making a health-care down payment.

During the markup of a bill in the Senate Health Committee, Republicans offered 11 tort amendments that varied in degree from mere pilot projects to measures to ensure more rural obstetricians. On a party line vote, Democrats killed every one. 35

[Footnote]

[Footnote 35:  Kimberly A. Strassel, `The President's Tort Two-Step,' The Wall Street Journal (September 11, 2009).]

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