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Tort reform will not improve health care

The issue of medical malpractice and tort reform continues to be a high priority, and President Bush has identified tort reform as one of top four priorities. While some believe the solution to the medical malpractice “crisis” is to cap damages to lower malpractice insurance premiums for doctors, victims of the most severe instances of medical malpractice will see their rights limited as well.

Instead lawmakers, according to many consumer groups, should focus on preventing the problem from ever arising by looking at ways of cutting medical errors. In addition to allowing greater attention to patient safety, the way medicine is practiced can become more effective – no longer pitting doctors against patients because of fears of litigation. The practice of “defensive medicine” has become an especially pertinent byproduct of the medical malpractice debate, compromising patient care even further.

Opponents of tort reform argue that in addition to restricting the rights of patients, caps on damages are ineffective. In January 2004, the Congressional Budget Office concluded caps on damages, even if they did hold down insurance premiums, would have an insignificant effect on total health care spending considering medical malpractice claims account for less than one percent of total federal health care spending.

States that have already passed caps limiting damage awards have not seen insurance premiums decrease, and in April, the Public Citizen consumer group issued a report on a new study confirming the latest national data on physician malpractice payments show no evidence that the spike in doctors' insurance rates is due to lawsuits by patients. Instead of acknowledging the real problems, some lawmakers, doctors and insurance companies have been pushing tort reform as a scapegoat for failing to adequately address patient safety, according to advocacy groups.

In 1999, the Institute of Medicine reported medical errors in hospitals caused more than half a million injuries and the deaths of as many as 98,000 patients a year, which are the statistics for the latest year available. Medical errors cost more than $50 billion in damage and loss each year, resulting in the Institute of Medicine declaring medical errors are a bigger problem than several other major public health crises.

Despite the high frequency of medical errors, a recent report suggested little has changed since the shocking 1999 Institute of Medicine study made headlines. Pennsylvania just completed the first state study of hospital acquired infections, finding more than 1,500 people died unnecessarily in 2004 alone. The state's conservative estimate that 12,000 Pennsylvanians contracted infections during their hospital stays means health spending increased by $2 billion.

As concerning as the Pennsylvania report is, The Washington Post reported in July that the actual number could be as high as 115,000 infections, based on billing claims hospitals submitted to insurers. Still, the focus on supposed exorbitant malpractice payouts, greedy lawyers and frivolous claims are blamed for the medical malpractice conditions, instead of taking a closer look at patient safety.

In June, The Wall Street Journal reported on the dramatic improvements made in the safety of anesthesia over the last 20 years. Over the past two decades, patient deaths due to anesthesia have been reduced to one death per 200,000 to 300,000 cases from one for every 5,000 cases, meaning anesthesia today is now 40 times safer than it was 20 years ago. The tremendous improvements made in anesthesia were no accident, but the result a systematic approach the field took after recognizing the dangers anesthesia presented.

Instead of being forced to improve patient safety and reduce risks, the American College of Anesthesiologists made it a priority, creating a foundation in 1985 to study patient safety and ways to improve it by collaborating with nurses, insurance companies and medical product companies. The foundation helped create and analyze a national database of incidents of injury or death from anesthesia, documenting recurring problems that had simple solutions.

The efforts to improve patient safety have saved many lives and prevented serious complications, and as the standard of care improved, medical errors, malpractice and malpractice litigation among anesthesiologists have all declined. The number of malpractice claims anesthesiologists now face has been cut in half, and while every other specialty has seen their respective malpractice premiums skyrocket over the last two decades, anesthesiologists have seen theirs fall 37 percent.

Yet instead of using anesthesiologists as an example of what radical improvements can be made by focusing on patient safety, rising health care costs are being blamed on trial lawyers, threatening to introduce legislation that will further injure the patients most in need of the right to seek damages decided by a jury instead of limited by an arbitrary number.

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