Appropriate Tort Reform Must Be A Part of Universal Healthcare©

By Dwight Owen Schweitzer
Former syndicated columnist of the Knight Ridder-Tribune News Service

For those familiar with my work and depending on your point of view, I have been either blessed or cursed with seeing things that never were, writing about them and then seeing them come to pass. Of course all the while knowing with some degree of certainty that the result had noting to do with me.

I hope this piece is different because what I have to say is, in my opinion, a crucial element to achieving a viable, affordable, and comprehensive plan for universal health care coverage while remaining consistent with the goals the President has outlined for the legislation he would support.

Virtually everyone agrees that one of the fatal flaws in our health care delivery system is the fear, cost, and related medical procedures dictated by malpractice, the insurance health care providers buy and the litigation they face.  In order to set the stage for my views, the cost of mal-practice insurance is both extremely expensive (in some specialties almost prohibitive) and has two concurrent effects, both of which are antithetical to containing health care costs. One is to cause Doctors to order more tests and procedures than reasonably necessary just to avoid potential claims; the other is to raise the fees charged patients to cover the ever increasing cost to the Doctor of his coverage.

There are some ancillary consequences as well.  Many patients who have legitimate cases cannot afford the costs to litigate them or find lawyers willing to front those costs which often require the hiring of experts at considerable expense. As a result the health care system is often required to treat these patients either as Medicaid recipients or non paying consumers of health care they now cannot afford, passing the costs on to the rest of us. Totally outside of the ‘fault’ system and compensation are the accidental effects of procedures that could not have been anticipated but result nonetheless.

In addition, when a case is brought there are many instances where sympathetic juries award truly excessive judgments which in turn become the bench mark for insurance companies to raise premiums across the board further impacting the upward spiral in the cost of care. There is only one viable solution:

We must end the entire medical malpractice system as we know it.

At the beginning of the 20th century if a worker was injured in the course of his employment his (or her) only redress was to sue the employer for negligence assuming the employee could afford it, had a legitimate, provable case and could find a lawyer to take it.  As you might imagine, vast numbers of people who deserved redress were denied access to it for all the reasons you might imagine given the hurdles needed to be overcome to get it.

As a result of the vast compendium of injustices which were the legacy of that system of redress it was replaced by a system of what is now known as Workers Compensation became the law of the land.  It was a system that exchanged a finding of fault by the employer for a schedule of benefits, both medical and monetary based upon the injury sustained, benefits that were both predictable and to some degree at least, fair.

No longer did the successful litigant get compensated while the non litigants, however legitimate their claims, were left to suffer without redress.  No longer did it matter whether the employer was negligent or not, whether there was fault or not; with limited exceptions, the simple nexus between the injury and that it came about in the course of their employment was all that was necessary to come under the umbrella of services and compensation offered by Workers Compensation legislation and the Commissions set up to administer its’ benefits.

The inevitable question arises whether a similar system could be applied to replace the current system of redress for medical malpractice which is based on both the provable finding of fault and in most cases the need to resort to litigation to achieve it, even where liability is not at issue. I well remember when I was a student at Vanderbilt Law School and came upon a book entitled “The Coca Cola Cases” from which I learned a valuable lesson; that Coca Cola never settled a case regardless of its’ merits.  Their theory was a simple one; to limit claims and to frustrate both litigants and lawyers from suing Coca Cola, knowing in advance the hurdles that had to be overcome. That lesson has not been lost on the Insurance industry in America, resulting in medical mal practice insurance being one of the most profitable products they offer. Make no mistake, the occasional huge judgment not only notwithstanding, is actually looked upon as a wonderful excuse to raise premiums disproportionate to the real exposure suggested by the verdict which at the same time is touted as evidencing the need for tort reform.

Of the compendium of benefits that accrue from replacing a litigation based ‘fault’ system with a workers compensation type of ‘no fault’ system is the rapidity of redress, the relative predictability of result, the coverage being extended to all those who have suffered a medically related injury, not only from negligence but from unique circumstances such as an unknown allergy to a medication or an unanticipated result from an otherwise appropriate procedure.

The effect on the health care delivery system cannot be over estimated.  Premiums for this type of coverage would be dramatically less than under the present system and Doctors could now practice medicine solely for the benefit of the patient without the added consideration of self protection with its’ related costs.  While it could be argued that this would be a license for shoddy or reckless care, the system should also require a board of medical and legal advisors to review appropriate cases and the particular protocol used, with the power to administer appropriate sanctions if a practitioner has not met the standard of care the particular patient was entitled to receive.

If we are to have meaningful universal healthcare we cannot leave the one aspect that has been primarily responsible for the escalation in costs and excessive, often unnecessary treatment to exert it’s upward pressure on costs when costs are the very issue we seek to control.

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