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  • Writer's pictureMario Nicolais

Real health care reform? Start with tort reform

In the dog days of summer, the United States Senate continues to muddle through health care reform. The current proposal seems bogged down under the weight of universal Democratic opposition combined with serious concerns of Republicans from both ends of the party spectrum.

Maybe it’s time to take a step back and refocus. As a lawyer working in the health care industry, I believe tort reform would offer a good alternative.

All sides agree that the current health care system needs reform. It needs fixes. Medical costs have skyrocketed and are accelerating. The health care industry accounts for more than a sixth of the U.S. economy, growing to a fifth in the next few years. And that is before baby boomers start hitting ages when catastrophic health care costs peak.

Lawsuits drive a significant portion of that trajectory. First there are the obvious costs of litigation. Paying for defense counsel, paying for discovery, hiring experts, paying damages or settlements. The list goes on and on. If you’ve ever gotten sticker shock from a litigator’s bill, you understand. Even if an insurance company picks up the tab, the premiums for health care providers jump in conjunction.

The second, and arguably bigger issue, revolves around the practice of defensive medicine. Risk-averse doctors, or the hospitals they work in, order tests and procedures that may have little value to their patients in order to avoid a later accusation of “missing” something. Even if a costly exam may only help one in ten thousand patients, it’s the one who might bring a costly lawsuit if the exam isn’t ordered. Each additional test or procedure adds to the patient bill, but because someone else — an insurance company — is paying, patients don’t object. To the contrary, most people want to leave no stone left unturned.

Of course, insurance companies don’t just eat the cost increases. They pass it along to patients via increased premiums. Which brings us back to the fight in the Senate — the precipitous increases in premiums.

A multitude of provisions have been proposed: caps on damages, shortened statutes of limitations, and safe harbor provisions shielding physicians from liability are among the most common. The solutions aren’t theoretical, either. The U.S. House of Representatives recently passed two bills implementing these changes: the American Health Care Reform Act in May and the Protecting Access to Care Act only a couple weeks ago. The former creates a safe harbor from medical liability claims when medical providers implement and follow predefined care guidelines. It avoids the battery of excess medical care by setting parameters where medical care isn’t trumped by legal concern. The latter caps noneconomic damages, effectively payments for loss of quality of life, to $250,000.

I can’t say that the bills are perfect, but they are the types of proposals that can actually address the very real nightmare of rapid health care cost inflation. It is worth robust debate and compromise. It’s also a much better use of the Senate’s time than the smoke-and-mirror parlor game it is currently playing over repeal and replace of Obamacare.

The concepts aren’t without detractors. Very powerful trial lawyer organizations oppose the reforms vehemently. Every limitation on potential liability recoveries represents dollars out of their pockets. Consequently, they have been able to beat back meaningful change.

Our health care system faces a critical juncture and the members of the U.S. Senate have retreated to intractable political corners. Changing the conversation to health care tort reform might be the best choice to bring them back to the table. With medical costs continuing to spiral up, that is exactly where we need them.

Mario Nicolais is an attorney and writes columns on law enforcement, the legal system, and public policy. Follow him @MarioNicolaiEsq

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