Tort Surgery Will Fail to Excise Health Costs

It's frustrating when the American public condones tort reform in the health care arena after weighing all the issues. But it's downright ludicrous when educated people embrace reform of the civil justice system when not even knowing what the issues are.

And it's even worse when these people include United States senators.

But apparently that's just what's happening on Capitol Hill. I visited a few weeks ago with Sen. Robert Kerrey (D-Neb.) to discuss his support of the so-called Chaffee Bill. This comprehensive health reform bill, sponsored by Sen. John Chaffee (R-RI), contains the most restrictive medical liability reforms now before Congress.

And as Congress moves toward a vote on health care on what is perhaps the most far-reaching legislation since the passage of Social Security, it appears tort reform is not even a serious aspect in garnering support.

Nor can it ever be, if one examines the uncontradicted statistics behind the arguments. Rather, what's becoming more and more clear is that tort reform, instead of being allowed to stand or fall on its own rhetoric, is being used as a bargaining chip to swing Congressional votes for the overall package. It is being used as a salve for the health care community, which is being forced to swallow the castor-oil aspects of other components of the bill that are more difficult to stomach.

Tort reform surely is an emotion-packed battle for the hearts and minds of the American people. The sides clearly have been drawn.

Big business, the medical profession, insurance companies and manufacturers running a well-oiled public relationship campaign form allies on the one side.

The other is a youth in a wheelchair robbed of a full life, a mother of a brain-damaged baby, a paralyzed worker - all of them struggling to receive enough to cover their medical bills and perhaps something for their pain and suffering.

It is appalling to see the fundamental rights of these injured people being bandied about in this cavalier fashion.

No one on Capital Hill is seriously arguing that major tort reform will reduce health care costs. They cannot. It is uncontradicted that malpractice premiums comprise less than one percent of annual health care costs.

Then what's the big deal here? The medical establishment and insurance industry have seized the moment for change and made a big deal about reforming the civil justice system.

For example, caps on noneconomic damages have become their single highest priority, in exchange for the hollow promise of less expensive health care. This trade-off has not materialized.

In fact, no such correlation exists in states that cap damages on pain and suffering, disfigurement or loss of enjoyment of life. Indiana provides the most illustrative example. The state has one of the most restrictive caps in the nation: originally $500,000 and recently raised to $750,000. A 1992 survey revealed Indiana and Illinois are comparable in fees charged patients for hospital bed costs and delivery charges. Illinois, of course, has no such caps.

The mere concept of capping damages, though is unfair. People can endure unending pain and suffering, provided it is not their own. Capping damages robs juries of one of their most fundamental tasks. And it would be doing so at the expense of the injured patient's fundamental rights and merely for the benefit of insurance companies.

The insurance industry certainly has not suffered. The Illinois State Medical Inter-Insurance Exchange, the largest insurer of physicians in the state, has enjoyed a continuously growing asset base to nearly $1 billion over the last 15 years. It has been documented that the so-called medical malpractice insurance crisis of the 1980s was an invention of insurance companies, orchestrated to fatten their profits.

Instead, consider the findings of a 1990 Harvard University study that found very few malpractice victims ever even file a claim: only about one out of every eight injured patients. And even fewer, approximately one out of every 16 ever receive compensation from a jury or an out-of-court settlement.

In fact, a separate study conducted by doctors themselves found that malpractice litigation is not a lottery in which verdicts are merely handed out on a whim. Rather, unjustified payments are rare.

The study, published in the Annals of Internal Medicine in late 1992, found that doctors' care was, in fact, substandard in most cases where patients won a payment for injuries.

The victims of malpractice are not looking for sympathy but for justice. They are not looking to become instant millionaires. And as most lawyers know, many of these verdicts are not paid in full. Although some victims collected millions of dollars, I can assure you that they would give back every dime just to have their health restored. For them and thousands of others like them, though, that is just not possible.

One hopes Congress will turn its focus on the unchecked padding in the health care scheme, such as the self-referral system that allows doctors to send patients for expensive tests at laboratories and testing facilities owned by that very physician.

Congress should concentrate on the bureaucratic blizzard that has virtually taken over the health care industry before deciding to mandate arbitration in medical malpractice claims, which would add yet another layer of red tape.

And before talking about capping a victim's recovery for damages, what about capping health care costs - putting a lid on the price of drugs, tests and doctors' services.

Surely everyone, including trial lawyers, would like to see a more efficient resolution of lawsuits for the injured. But when the smoke from this war now being waged in the nation's capital has cleared, the medical profession will survive. The trial lawyers will survive. It is the injured patient who could be the true casualty of the battle.

If any further reform of the civil justice system is to take place, let it be for the right reasons, not to sell out personal injury victims' rights for political gain.