Study Does Not Support Changing Med-Mal Tort System

In December, 2008, the Congressional Budget Office (“CBO”) prepared a study paper entitled Key Issues in Analyzing Major Health Insurance Proposals. One of the issues addressed were proposals which seek to change medical practices by focusing on the ways in which patients and medical providers settle disputes about treatment. That is a fancy way of saying proposals to modify the laws about medical malpractice.

The study found that in 2003 approximately 181,000 severe medical injuries occurred in U.S. hospitals that were attributable to negligence. Only 17% of those patients chose to file a malpractice claim. Interestingly, the study reported that patients who did not file a claim may have been unaware that the negligence had occurred, or they may have been discouraged from filing a lawsuit because of the time, effort and expense involved.

In 2008, CBO estimated that healthcare providers are likely to spend more than $30 billion to defend against and pay medical malpractice claims. However, that money represents about 1.5% of national health expenditures and less than 3% of total payments to doctors and hospitals. The report goes on to discuss caps on award damages in medical malpractice cases and determined that savings resulting from such caps would reduce total healthcare spending by less than 0.2%. The bottom line of the study by CBO was that it had not found consistent evidence that changes in the medical malpractice environment would have a measurable impact on healthcare spending. With such a small percentage of the overall health care costs involved, you wonder why there is such a clamor for change? Could it be that insurance companies see another way to make even more money while denying the injured their day in court?

In summary, this study produced during Bush’s administration does not support a change in our medical malpractice system. The changes proposed all involve a federal type system. A federal system is contrary to what most tort reformers advocate out of the other side of their mouths-state’s rights. For example, in the two states where I practice, Mississippi has very restrictive punitive damages laws and Alabama has very restrictive standards of proof in medical malpractice cases. Why can’t the states control their own destiny over such a minute matter in the healthcare debate?