Tort reform has long been a contentious topic in the healthcare reform debate. Many Republican lawmakers – on both a state and federal level – have proposed tort reform as one of the major platforms of their alternative healthcare reform proposals. It’s the sort of issue that people tend to see as black and white, but is really many shades of grey.
Many people were disappointed when the PPACA didn’t address tort reform last year. The law did include some funding for states to explore alternatives to the current civil litigation system, but did not make any real changes to the way our medical malpractice system works. In January, the House of Representatives introduced HR5, the Help Efficient, Accessible, Low-cost, Timely Healthcare (HEALTH) Act of 2011, in an effort to include tort reform as a possible solution to some of the problems facing our healthcare system. Among other provisions, the HEALTH Act would place a cap of $250,000 on non-economic damage awards, and caps on the portion of a damage award that can be paid to the trial lawyers. It also contains language stating that punitive damages could only be awarded if the defendant “acted with malicious intent to injure the claimant” or “deliberately failed to avoid unnecessary injury” to the claimant, and that no punitive damages could be awarded if the lawsuit is filed in regards to a product that has already been approved by the FDA.
At first glance, the HEALTH Act might seem like a win-win (for everyone except perhaps the trial lawyers). But we know by now that nothing about healthcare reform is ever as simple as it seems. Dr. Brad Flansbaum of The Hospitalist Leader has written an excellent article about the complexities of tort reform, and it’s well worth a read. Although the tort reform issue is often seen as a lawyers versus doctors battle (with patients caught somewhere in the middle), Dr. Flansbaum point out that even from a doctor’s perspective, the problem is not just “greedy lawyers”. He notes that
“It is too easy to dig in and blame the healthcare mess on someone else—forgetting that for-profit medicine, supplier induced demand, and the belief that it is “the other doc” with the resource problem—that are equally to blame and partially why we have our damaged system.”
This is an excellent point, and one that really applies to everyone in the healthcare system, and everyone working on regulatory solutions – from hospitals and health insurance companies to providers and lawmakers. If you’re curious about tort reform, Dr. Flansbaum’s article (and the numerous links included in it) provides a very balanced look at the situation.
Dr. Flansbaum’s article was included in this week’s Health Wonk Review, along with several other excellent articles about healthcare reform, regulation, and policy.
