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The Democratic Strategist

Political Strategy for a Permanent Democratic Majority

Medical Malpractice In Context

Talk to a conservative about health care reform, and nine times out of ten he or she will quickly get around to a rap on medical malpractice insurance, tort reform, and the evil, evil trial lawyers that are responsible for high health care costs and that have bought political protection from the Democratic Party. Having heard this a million times, most progressives simply close their ears when the very subject comes up.
Via Ezra Klein, there’s a very good fact-based summary piece on this subject from David Leonhardt of the New York Times.
Here’s an excerpt:

The direct costs of malpractice lawsuits — jury awards, settlements and the like — are such a minuscule part of health spending that they barely merit discussion, economists say. But that doesn’t mean the malpractice system is working.
The fear of lawsuits among doctors does seem to lead to a noticeable amount of wasteful treatment. Amitabh Chandra — a Harvard economist whose research is cited by both the American Medical Association and the trial lawyers’ association — says $60 billion a year, or about 3 percent of overall medical spending, is a reasonable upper-end estimate. If a new policy could eliminate close to that much waste without causing other problems, it would be a no-brainer.
At the same time, though, the current system appears to treat actual malpractice too lightly. Trials may get a lot of attention, but they are the exception. Far more common are errors that never lead to any action.
After reviewing thousands of patient records, medical researchers have estimated that only 2 to 3 percent of cases of medical negligence lead to a malpractice claim.

The usual GOP method for dealing with this issue is, of course, simply capping damage awards for malpractice suits, which might somewhat reduce “defensive medicine,” but at a hard-to-estimate cost in even greater medical errors. The other issue, of course, is that other elements of the health care system encourage unnecessary tests and procedures as much as fear of lawsuits. As Leonhardt notes:

The problem is that just about every incentive in our medical system is to do more. Most patients have no idea how much their care costs. Doctors are generally paid more when they do more. And, indeed, extra tests and procedures can help protect them from lawsuits.
So the most promising fixes are the ones that don’t treat the malpractice system as an isolated issue.
Imagine if the government paid for more research into which treatments really do make people healthier — a step many doctors don’t like. Such evidence-based medicine could then get the benefit of the doubt in court. The research would also make it easier to set up “health courts,” with expedited case schedules and expert judges, which many doctors advocate.

In other words, medical malpractice reform is not a substitute for health care reform, and in fact, the best way to deal with “defensive medicine” may be through health care reform.
That’s a better answer than the usual Kabuki Theater back and forth on this issue.

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