This weekend, as health care reform is debated on the floor of the House of Representatives, I wonder if members will put aside favors owed to "this corporate interest" or "that one" and actually do the right thing for the American people. One subject of distorted debate with regard to health care has been the cost of defending medical liability litigation. One of the most frequently presented myths about medical negligence is that it has a significant effect on overall health care costs. In truth, medical malpractice is actually a very small percentage of health care costs, partially because medical neglect claims are pursued at a considerably less frequent rate than most people are led to believe. According to the Congressional Budget Office, pursuing cases involving medical mistakes costs less than 2% of overall health care spending. It also found no difference in health care spending between states with or without limits on medical liability lawsuits.
So-called tort "reformers" push that the fiction (and I do mean fiction) that "frivolous" lawsuits dominate the legal system; they say that these lawsuits are behind the surge in health care expense. Yet, considering that attorneys are, almost universally, handling these cases on a contingency fee basis (the attorney receives no fee unless the case is successful), the legal system offers absolutely no incentive to pursue the "frivolous" case.
The reformists further argue that liability reform is the most effective way to slow down the rising costs of health care. In reality, medical negligence lawsuits contribute very little to health care costs, and a significant number of patients die annually from preventable medical errors. Doctors who make serious medical mistakes should be accountable; injured patients should be compensated for their injuries, lost wages, and ongoing treatment costs. What is the value of serious disfigurement or loss of life from a medical or surgical procedure? The injured patient has already suffered enormously; his/her rights should not be negotiable. Additional barriers to justice or artificial damage caps on their recoveries simply make them victims a second time.
46 states have some form of tort reform, yet the burden of exorbitant health care costs still exists. If a lawsuit is truly frivolous, it is dismissed early and the attorney who brings it is sanctioned by the presiding judge. The case does not go to trial; it does not burden the system. And why, if frivolous litigation is the concern, does "tort reform" always take the form of demanding caps on damage recoveries? Why do the reformers need to cap the damages of a "frivolous case", which by definition is worthless? "Tort reform" argues for caps because corporate interests are lying to you; they want to limit recovery on serious cases, not stop frivolous one. This is the big lie of the so-called "tort reformers". If the case is legitimate, shouldn’t it be heard by a judge or jury? Isn’t this guaranteed by our constitution? Why does the legislature, state or federal, influenced by corporate interests, get to decide instead of a judge or jury? Is that really what you want for yourself or your family and friends?
The health care and tort system debate should be focusing on two things and two things only: 1. Delivering patient safety, and, 2. Delivering patient safety at an affordable price for all of our citizens. It should not be focused on limiting the rights of those who are injured, maimed or killed as the result of medical negligence. It stands to reason that there will be fewer injuries and fewer lawsuits if there are sufficient safety measures in place. It is time to fix the health care and safety problems rather than bargaining away the rights patients who are injured, maimed or killed by health care providers. What are these "tort reformers" doing to improve safety? What are they doing to improve quality care? What are they doing to save lives? Whoever is reading this blog, I promise you: Tort Reform will not save a single life!
Lawsuit Financial encourages everyone to look at the ‘fine print’ on tort reform. Do you know how it will affect all of our rights? Tort reform means shifting costs to the taxpayers; yes, I mean you, the working taxpayer. Tort reform has nothing to do with reducing injuries and death; it has everything to do with increasing the profits of insurance companies, big pharmaceuticals and other corporate concerns. Can we focus on safety in this debate? Can we focus on care? Can we focus on improvement? Can we focus on reducing incidents of medical error? Do politicians who take contributions from billion dollar insurance companies have the guts to advance the cause citizen/patient safety rather than insurance company bailouts and record profits at the expense of those citizens? We will all be watching you this weekend.
Attorney, certified civil mediator, and award-winning author of the Zachary Blake Betrayal Series—Mark Bello is also the CEO of Lawsuit Financial and the country’s leading expert in providing non-recourse lawsuit funding to plaintiffs involved in pending litigation. He is also a member of the State Bar of Michigan, a sustaining member of the Michigan Association for Justice, and a member of the American Association for Justice.