Malpractice Insurance

By John Ballard

One of President Obama's biggest moments last night was when he spoke about malpractice claims.

Finally, many in this chamber - particularly on the Republican side of the aisle - have long insisted that reforming our medical malpractice laws can help bring down the cost of health care. I don't believe malpractice reform is a silver bullet, but I have talked to enough doctors to know that defensive medicine may be contributing to unnecessary costs. So I am proposing that we move forward on a range of ideas about how to put patient safety first and let doctors focus on practicing medicine. I know that the Bush Administration considered authorizing demonstration projects in individual states to test these issues. It's a good idea, and I am directing my Secretary of Health and Human Services to move forward on this initiative today.

If I may quote myself...

Nearly every conversation I have with opponents brings up the
lawyers. They don't use the phrase but what they are talking about is tort reform. I think this piece of the argument makes an excellent bargaining chip to offer opponents. Rational people know that tort reform is a red herring. But if giving ground on that one point will win friends and influence people then I'm all for it. 

The president is as tight with trial lawyers as a bunch of
Congressmen and Senators are with the insurance and drug companies. Any
former faculty member of a law school is in their corner by definition.
But this is a trivial matter compared with the importance of health
care reform, particularly since a look at the numbers reveals very
little being lost anyway.

I'm neither a lawyer nor a constitutional scholar but like Will
Rogers I know what I hear and what I read in the papers. And it is
clear that many people blame lawyers for the high cost of medical care
because they read dramatic stories of multi-million dollar settlements
driving up the cost of malpractice insurance and the amount of
settlements that then pad their medical bills.

It's mostly bunk, but even physicians often have the same notion.
And why shouldn't they? After all, their insurance premiums go nowhere
but up. Any time a disaster is in the news, the industry jumps on the
chance to kick them up a little more and my guess is that the current
public arguments are all the excuse needed to punch them up a little
more. 

I recall from undergraduate political science that governments all
the way down to the county and municipal level are able to declare
themselves immune from liability under the "sovereign immunity"
doctrine.  But my instinct is that any tort reform capping damages in
the private sector would be struck down later as unconstitutional.
(Remember the line item veto?) Even if language can be crafted to sooth
the wrath of this one argument which is nearly universal, it would give
something to elected representatives in both the House and Senate to
show constituents a point for their side.

He didn't use the "t" word but that's precisely what he was talking about. I guess the president, Will Rogers and I all read the papers and listen to people jabbering.

One of the many ways you can have a bad day in the food business is to have bad weather. Heavy storms, dangerous streets and traffic jams caused by bad weather costs thousands of dollars when crowds don't go out to eat. But experienced professionals know that the threat of bad weather hurts business more than the reality of bad weather. Why? Because most people organize their day around the weather forecasts, not the reality of what they can see looking out the window. It's the old better safe than sorry principle. 

"Defensive medicine" works the same way. Doctors don't care if malpractice lawsuits are a trivial part of health care costs any more than a fry cook cares that the box of shrimp he just dropped in the fryer is worth more than he will earn during the dinner rush. All he knows is that it ain't his problem unless it involves him, so he keeps on the safe side. He won't burn the shrimp, not because it's so valuable, but because he doesn't want the boss to catch him not paying attention.

The fear (not the reality) of malpractice suits is the problem. So reducing fear reduces unnecessary costs incurred by "defensive medicine."

Human nature.
This president gets it.