Republicans Back Off Tort Reform Demands

Attempts to reform medical liability insurance and defensive medicine are going to take more time
The Lund Report
May 6, 2011 – Republicans on the committee to transform the Oregon Health Plan signaled this week they might be willing to back off their immediate demands for tort reform.
Sen. Frank Morse (R-Albany) said he strongly recommends the Oregon Health Authority include in its proposal to come before lawmakers during the interim a plan to tackle the issue rather than try and negotiate a deal before the end of the session.
“There are those of us in the assembly who feel this problem has been put off and put off,” Morse said. “This is an opportunity.”
Efforts to reduce the costs of defensive medicine and medical malpractice insurance have historically been some of the most intractable issues at the state capitol. 
Just this year, lawmakers proposed a bill that would cap non-economic damages (HB 3228) and another that would create a panel of experts to review pending malpractice cases (HB 3519). But both those efforts died.
A task force of two dozen experts under the Oregon Health Policy Board met throughout 2010 and delivered key recommendations to lawmakers. Among them was a proposal to create an administrative medical liability system similar to the workers' compensation system under the public corporation SAIF.
Dr. Chuck Hofmann served as the task force liaison as a member of the policy board. “We believe that proposal would have provided compensation to more injured patients with less jack pot justice,” Hofmann said. “We’d like to see the legislature fund a study or at least throw some money into it.”
But so far, nobody seems willing to do that giving the restraints on the state budget. Lawmakers did, however, include a provision in SB 95, which passed both chambers, that forces a malpractice insurer to defend claims brought about from disclosure of a mistake to patients.
Republicans on the Joint Committee on Health Care Transformation have said they want some sort of tort liability reform for doctors, especially those who'll be treating Oregon Health Plan patients under increasingly limited budgets. They had earlier signaled that otherwise they couldn’t vote for Governor Kitzhaber’s signature health policy proposal to reorganize the way care is delivered to Medicaid patients by creating coordinated care organizations. 
Democrats, meanwhile, have balked at the idea of including tort reform. Rep. Mitch Greenlick (D-Portland) said he felt Republicans were attempting to bog down the legislation.
“It’s a myth that most of the unnecessary procedures are the result of defensive medicine,” Greenlick said. “People do more because they get paid more.”
Doctors currently have no further protection treating patients under the Oregon Health Plan, or uninsured patients for that matter, when it comes to possibly getting sued for substandard care.
“I don’t know that that’s any greater or less of a problem than it is for the next person down the road,” Hofmann said. “The risk is there no matter what.” 

To Learn More

For more information about the medical liability task force click here. 
Information on the transformation process can be found here and here 


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I am not sure why low income persons who cannot afford insurance or who are on OHP ought to be less protected by the law than insured persons. It seems possible that such a discriminatory provision might be ruled unconstitutional. On the other hand, tort cases are not a very good way to make sure that the medical costs of failed treatments, treatments carrying known risks of which patients are informed, errors due to system failures, and malpractice get covered for everyone. Those who sue often lose. It seems as if there ought to be a middle ground that caps most non-economic damages but leaves a more punitive category for really outrageous malpractice by doctors or negligence by hospitals or other organizations, with a higher standard of proof. Chris Lowe

Since the research states unequivocally that law suits are not significant and restricting them does not reduce health care costs it would seem that Republicans might consider giving this straw dog up. Tort reform hurts the people who are injured by medical mistakes. Look at the case just last week where they operated on the wrong eye. I'm not sure if the child was injured but he/she could have been terribly hurt.

Focusing on the cost of lawsuits and the relative impact on malpractice premiums as the driver of increased costs is the wrong place to look. Yes, all of us should have the right to recover losses and be compensated for our pain and suffering if caused by the fault of another party. But how much $$ is enough? We need to be focused instead on the need for tort reform because defensive medicine drives significant increases in utilization thus increases costs. Far too many tests and procedures are out of alignment with best practice and are ordered to protect the clinician in case of lawsuit. Increased utilization gets buried in health system costs. No doc wants to publicly admit that you got that nuclear stress test as a precaution against lawsuit. I can tell you my PCP did just that for me last year. And after a couple grand billed to my insurer, they found nothing, as she suspected they would. But my PCP's risk went down and I don't fault her one bit in this litigious environment. And hey, what's a few RADs between friends. Ask your own clinician next time you see them if they have ordered tests and procedures as insulation form tort claims.... I'll bet you a steak dinner you'll almost all get a yes if they are comfortable being honest..... Let's start by acknowledging that there needs to be a middle ground on this issue between healthcare providers and the trial bar. The latter has been unwilling to cede any ground for far too long and we all pay the price as a result.

Mitch Greenlick is right that "defensive medicine" is not driven mainly by lawsuit fears, at least for most of us. The fear of an error that harms a patient, and the rewards of doing more procedures, where that applies, appear to be much larger factors, which tort reform will not change. On the other hand, the morale effect on physicians of the fear of unfounded lawsuits, and "jackpot" awards (as Chuck Hofmann points out), are quite real and deserve attention. Meritorious cases often don't receive compensation, and non-meritorious or weak cases can hit that jackpot, neither of which serves justice. Just don't expect tort reform to have a measurable effect on health care costs. There are other sound reasons it is needed, and those deserve attention.

The need to file lawsuits to recover the costs of treatment associated with medical mistakes would disappear if we had a publicly funded health care system with univesral access. Litigation would be confined to lost time, punitive damages, etc. Peter Shapiro

Why are doctor's and other professional's malpractice insurance premiums so high? For some practicing physicians they are astronomical. I would think tort reform would come into play there. Yes, physicians will still undoubtedly practice defensive medicine but the specter of a 50 million lawsuit wouldn't be hanging over them and their insurance policy.