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Federal Medical Malpractice "Reform" Back on Table

Once again Congress is considering legislation to cap non-economic damages and reduce attorneys fees in medical malpractice cases. The proposed bill would cap non-economic damages at $250,000 and empower judges to reduce attorneys fees. The bill, entitled “Help Efficient, Accessible, Low-cost, Timely Healthcare (HEALTH) Act of 2016,” is currently in the House Judiciary Committee for mark up before it is brought to floor of the House for a vote.

Proponents of medical malpractice "reform" contend that limiting the rights of patients is necessary to (1) assure that doctors are available throughout the United States instead of being concentrated in states where they can afford malpractice coverage, and (2) reduce the costs of "defensive medicine" practice by physicians concerned about lawsuits. Is there anything to these arguments?

No Evidence that Doctors Flee States Without Tort Reform: Researchers from the University of Texas, University of Illinois, and Northwestern University asked whether the 2003 medical malpractice reforms in Texas impacted physician supply in the state. Tort reform advocates had complained that doctors were fleeing Texas in droves and that caps on damages were necessary to stem the tide. The researchers found, however, that doctors were not leaving Texas prior to the 2003 reforms and that the 2003 reforms had no measurable impact on physician supply. This was true for all patient care physicians in Texas, high-malpractice-risk specialties, primary care physicians, and rural physicians. "Does Tort Reform Affect Physician Supply? Evidence from Texas Northwestern Law & Econ Research Paper 12-11 Illinois Program in Law, Behavior and Social Science Paper No. LBSS12-12 U of Texas Law, Law and Econ Research Paper No.… ?abstract_id=2047433.

Although the above study was limited to the State of Texas, those who lobby for malpractice reform have not produced anything other than anecdotal reports that doctors are relocating to jurisdictions that have adopted malpractice reforms that limit patient rights. Until the reform advocates produce solid evidence that we have physician shortages in parts of the United States due to lack of malpractice reform, we should presume that what researchers found in Texas holds true for the country.

No Evidence that Doctor Engage in Defensive Medicine: Members of the same research team that looked at Texas asked whether the placement of caps on medical malpractice damages in nine states between 2002 and 2005 lowered the cost of healthcare due to the presumption that doctors would no longer practice "defensive" medicine. The researchers found that the reforms had no impact on Medicare Part A spending and, ironically, were associated with a higher rate of Medicare B spending. "Do Doctors Practice Defensive Medicine, Revisited" Northwestern Law & Econ Research Paper No. 13-20, Illinois Program in Law, Behavior and Social Science Paper No. LBSS14-21.… ?abstract_id=2110656.

These findings echoed the findings of Waxan et. al. published in the October 16, 2014 edition of the New England Journal of Medicine. These researchers asked whether tort reform measures for emergency room physicians in Texas, South Carolina, and Georgia reduced the number of tests and imaging studies ordered by emergency room doctors. Those states had enacted "reforms" which protected emergency room physicians from suit unless an injured patient could prove the that the doctor consciously disregarded the need to use reasonable care with the knowledge that their actions were likely to cause serious injury. Because these laws effectively shielded emergency room doctors from suit, tort reform advocates presumed that the cost of emergency care would be reduced as doctors no longer would feel compelled to order unnecessary and expensive tests to avoid a malpractice lawsuit. Researchers then compared the cost of emergency department care for over 3 million patients in states other than Texas, South Carolina and Georgia to the cost of care in these three states. The study concluded that the tort reform measures failed to reduce costs in Texas and South Carolina and only minimally reduced costs in Georgia. The study further found that the tort reform measures had no impact on the rate at which emergency doctors ordered MRI or CT scans, expensive studies that tort reform advocates had claimed were being ordered by doctors practicing defensive medicine. Waxman, "The Effect of Malpractice Reform on Emergency Department Care," N Eng J Med, 2014; 371: 1518-1525 (Oct. 16, 2014).

Again, proponents of malpractice reforms can produce anecdotal reports of physicians practicing defensive medicine to avoid a lawsuit, but until advocates of reform produce solid proof that the practice of defensive medicine is routine and actually driving up the cost of health care, we should presume that doctors will continue to order those tests and treatments that they think best serve their patients.

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