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Friday, May 19, 2006

Tort Reform vs. Medical Error Reduction?

Interesting piece from the American Prospect.  While acknowledging that caps and the like can potentially reduce malpractice insurance rates, Ross Eisenbrey (VP of the Economic Policy Institute) says (a) such reductions will have minimal effect on overall cost of healthcare and (b) we should focus more on reducing medical error in the first place.  He uses as one example progress in anesthesia, where deaths have been reduced from 1 in 5,000 to 1 in 200,000 to 300,000 in the space of twenty years.  In the same time frame, he says, insurance rates for anesthesiologists have fallen by 37%.

Of course, it's possible for malpractice insurance rates to be a small part of health care costs but still to have a substantial effect on the quality of care, simply through the availability of care.  Whether that's true or not is a different issue, but saying that a reduction in insurance rates wouldn't make my health insurance cost much less isn't the end of the issue.

Nonetheless, it seems to me that an effort to join reforms of the liability system to improvements in avoiding malpractice in the first place might be more politically appealing -- at least to some -- than either in the abstract.

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Out of curiosity, this article appears to be dated August of 2005. Is there something new that I'm missing?

Also, you say "it seems to me that an effort to join reforms of the liability system to improvements in avoiding malpractice in the first place might be more politically appealing -- at least to some -- than either in the abstract."

Two questions:

(1) To whom are improvements in avoiding malpractice - which I assume to mean increased patient safety, reduced rates of error, etc. - unappealing?

(2) Is it really a good idea to make changes in liability for political appeal and not reasons based in rigorous analysis?

It sounds to me like your suggestion is that tort reformers make the argument that med mal liablity restrictions will result in reduced rates of malpractice. If there is any empirical evidence that this would be the case, I would be curious to see it.

Posted by: Seth (not a lawyer) | May 19, 2006 12:08:00 PM

Nothing new in it; just came across it recently.

My suggestion is not at all that anyone should argue that changing liability rules would reduce malpractice rates. Nor do I suggest that changing in liability rules should be made solely for political appeal. I'm not sure where you got those ideas, but if they're in what I wrote, it's not intended. When I say "join" the efforts together, I mean it strictly in presenting both ideas simultaneously. (Similarly, I tend to think any effort to make FDA approval have preemptive effect should be tied to efforts to substantially increase funding of certain parts of the FDA's processes.)

As for who might not find improvements in malpractice avoidance appealing: If the linked-to article is correct, one could infer that there are groups of physicans who have not made efforts like those made by anesthesiologists. One could further infer that those efforts have not been made because they might not like the problems that would be identified. Put more briefly: If he's right, lots of doctors haven't done what they could to reduce rates of error.

Posted by: Bill Childs | May 19, 2006 2:44:00 PM

While it may be "appealing" to some to pair tort reform with a concerted effort to actually improve medical care I would like to suggest that it would be grossly unfair to the victims of medical malpractice who make claims.

Over 90% of malpractice victims never even see the tort system.

Basically, you are suggesting that the most seriously injured victims of medical malpractice who happen to make it into the tort system should suffer unconscionable limitations on their rights so medical providers can be bribed to do the right thing and clean up their act.

This could only be "appealing" to insurance carriers (who universally wish that every potential liability claim of any nature can be capped). Or, to law professors.

Posted by: greedytriallawyer | May 19, 2006 3:24:08 PM

Whoa, Greedy, where did I suggest that?

I'm making observations here about the potential politics of different approaches, but not endorsing anything (hence "at least to some").

For whatever it's worth:

- I don't support caps on damages. Haven't, don't, don't plan to, never wrote anything on this site (or elsewhere) saying otherwise. My view isn't tied to whether caps work to reduce malpractice insurance rates (though it's an interesting question), but based on my views of the proper goals of the tort system. Caps conflict with those views.

- I would like to make the tort system more precise -- so that victims are fully compensated, and nonvictims are not. I think the system does a pretty decent job of that now but that it could do better, especially in the realm of expert testimony. (I also think the medical system does a pretty decent job of avoiding errors now, but that it too could do better.) I have various ideas about how to do that, some of which I'll be exploring here over the summer. So far as I know, you don't know what my views are on those subjects, so I'm not sure how they could already be unconscionable.

Again, observing the potential politics of an approach that would provide both some reforms and some incentives for improving the error rate doesn't make me an advocate for that approach. Nor does it mean I've endorsed every measure that's ever been called "tort reform."

Posted by: Bill Childs | May 19, 2006 3:52:11 PM

I think there has been some misunderstanding about why you suggested the pairing of liability restrictions and malpractice reductions. To me, anyway, and it seems like perhaps to greedytriallawyer as well, the last paragraph of your post read like a bit of quid pro quo - "you clean up your act, and we'll reduce your liability." Apparently that was wrong.

I certainly don't know what your views are on anything, really - other than what you have just laid out. Because of this, I'm sure there will be instances where I misunderstand something that you write. It's nothing personal - how could it be? - I'm just an average guy with no legal or medical training, so sometimes I'm going to get it wrong.

Posted by: Seth (not a lawyer) | May 20, 2006 7:22:51 AM

I didn't take it as personal -- apologies if it seemed like I did.

Looking back over my post, I can see how it could be read as a quid pro quo, when I just meant it as a possible political approach. And if it makes it more feasible to improve the tort system in reasonable ways to also improve error rates and the rest, well, that's all to the good -- depending on one's view of what "reasonable ways" might mean.

Posted by: Bill Childs | May 20, 2006 9:51:36 AM

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