The USA Today has an editorial opinion in today’s edition that I wanted to share with my readers. The opinion demonstrates that my (and Injury Board’s) fight to protect injury victims from so-called "liability reform" or "tort reform" is not over, not by a long shot. Occasionally, I read USA Today in airports, hotel rooms and the like; I have never considered it a ‘serious content’ newspaper. I have always viewed it as a "glimpse" at the news. As such, I have never noticed any significant journalistic value or penmanship; I have always found it to be a quick, easy, and entertaining way to get some news while I travel. I have never noticed a particular bias. It is this exact premise that makes this editorial dangerous to the cause of justice. With little or no research, with no opposing viewpoint, without a byline, the "editorial staff" of USA Today offers this opinion:
— Virtually no malpractice reform. CBO says a serious effort to restrain malpractice awards, and the "defensive medicine" doctors practice to avoid them, could save $54 billion over 10 years. That’s enough to make it a worthwhile addition to the bill, despite opposition from trial attorneys and their
While the newspaper found a few "keepers" in the legislation; the editorial found three specific negatives: 1. Insufficient cost control (without providing much evidence that the bill lacks sufficient cost control), 2. Poor tax policy (proposal to tax our wealthiest citizens does not sit well with a newspaper whose publisher is, probably, one of our wealthiest citizens), and 3. No tort reform (per the above boxed quote).
I am not an expert in "cost control" or "tax policy", but I do know a little bit about what the paper calls "malpractice reform". First, the CBO (Congressional Budget Office) did make the above statement, but not in the context offered by the newspaper. The CBO said that the reported savings could amount to less than 2% of the total health care system cost and most commentators opined, after the CBO report came out, that the savings was not worth the cost to those injured, disabled or killed by medical mistakes.
Second, I am constantly amazed at the free pass Congress, the press, and even the President has given to doctors who admit that they practice what they call "defensive medicine". What does that term mean, anyway? Doctors claim that they must perform "unnecessary tests" because they fear litigation. What?! If a test is, indeed, unnecessary, then these physicians are, admittedly, billing Medicare, Medicaid, health, auto and homeowners and others insurance companies for tests that should not be reimbursed. "Defensive medicine" strikes me as another name for "fraud". How does one bill for an unnecessary test and justify the charge to an insurance carrier or government entity? How does doing an unnecessary test prevent a doctor from being sued for malpractice? With appropriate standards of practice, appropriate safety measures, appropriate testing, appropriate diagnostic skill, appropriate referral to appropriate specialists, and other sensible practice tools, there should be no need for "defensive medicine". If I was a doctor, I would be absolutely embarrassed to admit that I practice in that fashion!
What is needed is a review of the entire health care system and its approach to providing care and safety to its patients. What is not needed is a system that punishes a victim of a medical mistake, medical error, or medical malpractice a second time, by artificially capping or reducing a damage award that would, if it remained unlimited, force the medical profession to take a long, hard look at what institutional defects resulted in the error/mistake in the first instance. If you want real change in how doctors and hospitals practice, make them fully accountable for their actions; legislative tort reform, passed at state levels in many states, should be abolished. If you want no change in their behavior, no change in bad policy, no change in patient safety, then, I guess tort reform is for you, because tort reform permits wrongdoers to continue to do wrong with little or no consequence for their actions. The single, greatest safety assurance tool in America is the threat of a lawsuit. Remove that threat, limit that threat, and we are all less safe. We pay for it with our health, our lives, our children’s health and our children’s lives.
Lawsuit Financial would like to remind USA Today what is at stake in this debate: Your editorial staff should have done more than issue a flippant, irresponsible opinion that the CBO’s comment that there "could" be some savings (amounting to less than 2% of the total cost of health care) over a 10 year period is "enough to make it a worthwhile addition to the bill". You (and anyone else who supports this concept) could and should have measured any potential ‘savings’ against the serious and unacceptable cost, in medical mistake-related death and human suffering. If the debate factors in death and human suffering, it should become clear to any right thinking newspaper, politician and/or citizen that the trade-off just isn’t worth it.
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.