Tuesday, March 29, 2011

The Cold, Hard Facts About Tort Reform

Many physicians look for tort reform and would love to see it as part of any future health reform.  I admit that it would be nice to not have to worry about lawsuits when I'm working with patients.  However, I don't know that tort reform would save much money.

The CBO estimated comprehensive malpractice reform would save the government $54 billion over 10 yrs. However, the government pays $636 billion each year for healthcare costs.

One trillion is 1,000 billions; that means that $54 billion over 10 yrs / $6.36 trillion ($6,360 billion) over 10 yrs: I'm bad at math, but I get a 0.85% savings in healthcare costs from tort reform. Would that really make any drop in the bucket?

I think that if we were to have some ability to ensure that if we practice good medicine we would be protected in case of a bad outcome (such as some sort of safe harbor that if evidence-based guidelines are followed a physician would be protected from suit), this could impact practice patterns. So would reform that allowed physicians to actually spend the necessary time with patients to form long-term relationships, to discuss treatment options and truly engage in shared decision-making, and to allow for follow-up and adjustments to treatment plans when needed. This sort of reform--that put patient care above procedures, volume, etc--would likely make an even greater impact on patient care and (I think) have a bigger impact on practice patterns.

I learned in medical school that if a patient likes you, they are less likely to sue you. And if you actually sit and talk to a patient--and listen to them--they are more likely to like you.  And you're much likely to provide better care, and the care the patient needed.


Runcible said...

Your math isn't so bad but your understanding of economics could use some help. The CBO report only covers government expenditures and savings, not the private sector. Also, you need to consider the unseen, not just the seen. How much money is spent as a contraceptive to lawsuits? More importantly: how much physician behavior is dictated by worry of lawsuits? How many retire or avoid altogether medical practice? How much does malpractice increase costs for people, especially the poor?

And, btw, most people will sue you if they smell an opportunity for money. Whether they like you or not will sway a few, but not most. Betrayal is strictly a risk/reward calculation for most people.

You can't make a thing less valuable or free by legislation. If people want it, it's valuable. That's why socialism failed and PPACA will fail.

mark said...


If you re-read the post, you'll note the I comment on the CBO's information as it affects government spending only; I make no effort to address the public sector. There is no such information on the private sector that I have seen, but I have little reason to believe it would make much difference. In fact, I would suggest it might be less relevant in the private sector, because you have healthier patients (as a whole, private insurance leaves the sickest to the public insurance programs) who will use less care overall.

The CBO also tried to account for changes in physicians' practices that would result from the malpractice reform suggested by the Republican party, and sought to factor that in to their analysis. So the idea of defensive medicine is adjusted for as much as the CBO could. Physicians and others like to claim defensive medicine is a major cost driver--and it certainly plays some role--but I feel the role is less than many might believe.

Regarding your comments about lawsuits...the evidence I have seen is that the more your patients like you and believe you are a good physicians, the less likely they are to sue you even if there is a bad outcome. It is not simply a money calculation for the most part. New laws that make physician apologies non-discoverable (or at least not seen as an admission of guilt) will allow patients and physicians to honestly discuss errors and poor outcomes in such a way that lawsuits would be less likely. Overall, a system that works much as the federal tort system works in community health centers would be a nice reform, and I'd be all for that, but it's not likely to happen any time soon.

For what it's worth, the vast majority of PPACA reforms are broadly popular among both political parties. Only the individual mandate gets negative reviews, but it is a necessary part if we want to have access to health care for all and provide it through for-profit insurers. I blogged about that earlier:


Finally: people want health care, and it IS valuable. I disagree with your claim that making it more affordable will somehow make it less valuable. The truth is that most people who lack insurance want to have insurance (the estimated number of those who choose to go without coverage is hard to measure, but a small fraction of the 50 million uninsured) but cannot afford it for a number of reasons. Cost is not the same as value: you can value something like health care very highly, while still not being able to afford it.

So I agree with you in one case: people want health care, and so it is valuable. But the current system has failed miserably in making it available for those who need it. The PPACA makes much progress in the right direction.