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Tort Reform: A Bad Bargain That Won’t Fix Health Care

On Friday, the Associated Press reported that a southern Illinois woman died after catching fire on the operating table during surgery. This woman unfortunately joined the least discussed, but most far-reaching statistic in health care: according to the Institute of Medicine, 98,000 people die annually from preventable medical errors.

To put this into perspective, 98,000 deaths is like two 737s crashing every day for a whole year. Is this were the case, would lawmakers consider giving the airlines immunity, or make air travel safer instead?

As part of a “grand bargain” to create a bipartisan health care bill, some have said tort reform should be included. For most people, the term “tort reform” is empty and meaningless. But here’s what it means: taking away the legal rights of patients, injured through no fault of their own, and preventing them from obtaining legal recourse. And it isn’t fact-driven or grounded in reality; rather, it’s just part of the Washington sideshow to distract from what really plagues our country’s health care system.

Look at what the actual data says: 98,000 people dead every year from preventable medical errors, at a cost of $29 billion. Countless more are seriously injured with astronomical costs. The Congressional Budget Office and Government Accountability Office have looked at tort reform multiple times, and said it will save practically no money. They also found no evidence of so-called “defensive medicine,” finding that doctors run more tests because of the fee-for-service structure, or because of the benefits extra tests have on patient care.

Additionally, a 2006 study from Harvard found that 97% of cases were meritorious, totally debunking the idea that frivolous lawsuits plague our courts. And while 46 states have enacted some kind of tort reform, health care costs have continued to skyrocket, while injured patients often can’t seek justice.

It’s no coincidence that the same people who have hijacked our health care system – the insurance companies – are the same folks that want tort reform. Insurers charge exorbitant amounts for malpractice coverage, raking in billions of dollars off the backs of doctors. Then, the insurance companies lobby for tort reform, and promise to pass the savings onto physicians and consumers. Of course, the savings never materialize, while injured patients are left holding the bag. We’ve been fooled once before, and shouldn’t let it happen again.

Watching all the health care debate and cable news punditry, you hear about different parties having to “give something up.” For example, the insurers, drug companies, the AMA, and hospital associations have all been involved in trades or negotiations so their own interests are taken care of in the health care bill.

But what about the interests of actual patients, who know better than anyone what good health care should look like? Or the interests of injured patients, who know better than anyone the consequences of bad health care? Their rights and concerns aren’t being considered, and in fact, lay on the chopping block.

Injured patients have suffered enough. They shouldn’t have additional barriers thrown in their way to seek justice, or be told their life is worth a set arbitrary amount. Instead, we should focus on preventing these people from being injured in the first place. Fewer errors equals fewer injuries, and fewer injuries means less litigation. Fix the problem on the front-end, rather than discussing ways to bargain away the rights of already injured patients.

Forty-six states have tort reform, and American families still shoulder exorbitant health care costs. All the facts and data say it doesn’t work. There’s still 98,000 people dead every year from medical errors. But when political gamesmanship and backroom deals take over, the facts fly out the window.

This health care bill has a long way to go. But let’s be perfectly clear: patients’ rights aren’t negotiable. Tort law changes won’t fix health care, but only make it more difficult for injured patients to seek justice. Instead of bargaining away patients’ rights, Congress should their safety first. There’s 98,000 reasons why they should.

Anthony Tarricone

Anthony Tarricone

A partner with Kreindler & Kreindler, LLP at its Boston office, I am the President of the American Association for Justice. I have published articles in various legal journals and has presented well over 50 lectures and papers for various seminars, continuing education programs, and university courses. I have also served for two years as a law instructor at the Boston University School of Law.