Health reform declared constitutional – Now we need tort reform? (Part One)

10/18/2012 // Washington, DC, USA // Justice News Flash: Featured Column // Barry J. Nace // (press release)

Justice News Flash: Featured Column by Attorney Barry J. Nace

Literally within hours of the “Affordable Care Act” being affirmed as constitutional by the United States Supreme Court, the tort reformers were immediately screaming that we need tort reform. Of course no reason was given as to why. Thus is seems somewhat appropriate to explore the issue.

For years the argument has been made that there are really four “special interest groups” that have any interest at all in the tort reform process as concerns medical malpractice: the doctors, the patients and anyone who might be a patient (the public), the medical malpractice insurance industry, and the lawyers. An examination of why these groups would have any interest at all is not very complicated: the doctors because they want “protection;” the patient and the public because they want to be “protected” from the healthcare provider’s mistakes; the insurance industry because it wants to see profits go higher; and the lawyers who do not want their ability to represent patients to be affected. Thus, as soon as there is a large verdict somewhere against a healthcare provider, one can expect that with the urging of the insurance industry, the healthcare profession begin the mantra of “tort reform” and the parties line up against each other.

But what is this “tort” “reform” that is now needed because the Affordable Care Act is constitutional. A tort is a civil wrong where one person’s behavior causes someone else harm. A reform is a change. Some changes are good – some are bad. “Tort reform” then involves something that is going to affect the right of the patient to be fully compensated for a just injury. It can take many forms. Most commonly we hear of “caps” which are limitations on the amount that can be awarded to the injured. We also hear about “collateral source,” “joint and several,” etc. What does each of these mean and how are they affected by the Supreme Court’s decision?

First, it is clear beyond doubt at this point in this debate that has been raised for over 30 years that the cost of malpractice insurance is less than 1/10 of 1 percent of the cost of healthcare in this country. It is even less than the proverbial drop in the bucket. It is more like a drop in the ocean. So the argument that it is somehow affecting the cost of healthcare in this country needs to be looked at skeptically. “Ahh,” would yell the tort reformers, there is “defensive medicine.” What then is “defensive medicine?” Arguably, it is doing a test that a physician would not normally do solely because of the fear of malpractice litigation. The tort reformers have yet to come forth with a study or data or anything that shows that physicians truly do tests or prescribe something because of a fear of being sued. Malpractice suits simply are not based on doing an unnecessary $2.00 test.

A few years ago I had a physician tell me that we needed “collateral source” reform and I asked him what he meant by that. He had no idea what “collateral source” was – but we needed it. When I explained to him that it really meant that the wrongdoer who injured someone would get credit because he (the physician) was wise enough to get insurance for which he paid should he be injured, he looked at me and said “I wouldn’t want that.” Exactly! And neither would the patients and the public that he might hurt.

When it comes to “joint and several liability” reform, what it does is prevent the person that has been injured from collecting from any of the wrongdoers who hurt him or her, the totality of the value of the injury, if one of the wrongdoers did not have sufficient assets to pay. In other words, the one injured bears the brunt of the loss as opposed to the others who injured him. What physician would want that if he were the injured person?

Click here to read part two: Health reform declared constitutional – Now we need tort reform? (Part Two)

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