Your Own Private Tort Reform

February 18, 2011

Defensive medicine is one of the single-biggest drivers of healthcare costs, yet the so-called reformers simply ignore this fact. What can you do as a physician?

Doctors, were you heartened by President Obama's remarks during his State of the Union address that seemed to open the door to federal legislation limiting malpractice awards? You may recall that he said he's willing to consider "medical malpractice reform to rein in frivolous lawsuits."

Sounds good. But frankly, I'm not convinced that he's serious. After all, this is the same president who told Congress, in September 2009, that he was directing the Department of Health and Human Services to develop tort reform "demonstration projects" in various states. These projects amounted to small studies at universities and in one state health department, most of which are still underway or already forgotten.

And even if he is serious about considering tort reform, he's certainly not going to prioritize it. He's simply saying that he might not veto it if it were to pass, which it won't. Still, it's progress. And one document to emerge from those demonstration projects bears scrutiny by a president who promised to "look at other ideas to bring down costs."

A review of the literature by the federal Agency for Healthcare Research and Quality (AHRQ) concluded that most studies of state-based malpractice reforms that included caps on pain-and-suffering awards found that the reforms led to reductions not only in doctors' malpractice insurance premiums, but also in the size and frequency of malpractice awards, and - most importantly - in per-patient healthcare spending. For example, spending was 5 percent lower on heart attack patients and 9 percent lower on ischemic heart disease patients in states with pain-and-suffering caps than in states without them.

Extrapolating a 5 percent cost reduction throughout the entire healthcare system would save about $112 billion a year. Such extrapolations are dangerous, I know. Yet is there any doubt that defensive medicine is a real phenomenon, that it is unhelpful to patients and sometimes harmful, and that it is very expensive? The only remaining area for debate is the amount that could be saved by meaningful tort reform, not the fact of such savings.

There are things to be proud of in the health reform legislation. Yet defensive medicine is one of the single-biggest drivers of healthcare costs, and the so-called reformers simply ignore this fact because their benefactors in the trial lawyer community pay them to ignore it.

It's infuriating. And it will not change - not soon, anyway.

But does that make your situation hopeless? No. We may be stuck politically, but there's plenty you can do in your own practice to reduce your likelihood of being sued and increase your chance of prevailing if you are sued. Start with our cover story by Keith L. Martin, then check out our articles on how EHRs affect your liability exposure.

Here's my best advice: Be nice. To everyone. Listen. Don't point fingers. Apologize when something goes wrong that was avoidable, and express sympathy when something goes wrong that wasn't. Document everything that's relevant to the patient's case, and nothing that isn't.

Be the doctor who patients don't want to sue and who lawyers are afraid to.

Do you think there's any chance of meaningful tort reform in the near future? Tell me about it in the comment box below.

Bob Keaveney is the editorial director for Physicians Practice. He can be reached at bob.keaveney@ubm.com

This article originally appeared in the March 2011 issue of Physicians Practice.