# Why does tort reform keep getting mentioned in healthcare debates? **URL:** \ **Category:** Great Debates\ **Created:** [November 11, 2015, 2:38am UTC](https://boards.straightdope.com/t/why-does-tort-reform-keep-getting-mentioned-in-healthcare-debates/737248 "2015-11-11T02:38:23Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![andros](https://avatars.discourse-cdn.com/v4/letter/a/e480ec/32.png) [@andros](https://boards.straightdope.com/u/andros)\ **Post date:** [November 11, 2015, 5:51pm UTC](https://boards.straightdope.com/t/why-does-tort-reform-keep-getting-mentioned-in-healthcare-debates/737248/21 "2015-11-11T17:51:46Z")
> [@Fotheringay-Phipps](#): > > If you think about it from a human nature standpoint, it’s hard to imagine that doctors, human beings like all others, are not influenced by the fear of lawsuits. I agree with the idea that doctors should not live in fear of _lawsuits_. They should live in fear of _committing malpractice._ Speaking as someone who has lost a loved one to demonstrable–and, ultimately, demonstrated–medical malpractice, I want medical professionals and facilities to always have best practices in mind, to always strive for the best interest of the patient, and to always do their jobs to the best of their abilities. Find me a way to ensure those other than the legal system, and I’m all ears. ---
**Author:** ![leahcim](https://avatars.discourse-cdn.com/v4/letter/l/b4bc9f/32.png) [@leahcim](https://boards.straightdope.com/u/leahcim)\ **Post date:** [November 11, 2015, 5:55pm UTC](https://boards.straightdope.com/t/why-does-tort-reform-keep-getting-mentioned-in-healthcare-debates/737248/22 "2015-11-11T17:55:11Z")
Tort reform has a much broader application than just health care. It’s application to health care is just brought up more often because people are a lot more sympathetic to “my trusted family doctor is afraid of getting sued into obvlivion for missing a diagnosis because he didn’t order some obscure and expensive test” than they are to “GM is afraid of having to pay punitive damages because people were injured by a faulty gas tank”. ---
**Author:** ![Procrustus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/procrustus/32/2994_2.png) [@Procrustus](https://boards.straightdope.com/u/Procrustus)\ **Post date:** [November 11, 2015, 5:59pm UTC](https://boards.straightdope.com/t/why-does-tort-reform-keep-getting-mentioned-in-healthcare-debates/737248/23 "2015-11-11T17:59:00Z")
> [@Fotheringay-Phipps](#): > > The consensus of the experts is otherwise. (It’s actually one impetus for the “cadillac tax”) > > And in the countries which have socialized medicine, which the US is constantly being unfavorably compared to, they do _a lot_ less of all sorts of tests and procedures. > > [Note this is not only due to defensive medicine in the US. But it makes sense to think this is also a big part of it.] What’s a better use of resources, have a $5 million MRI machine that is used once per day, or having it used 10 times per day? An empty MRI room doesn’t generate any revenue or help any patient. It would seem like it would make sense to spread the cost of the machine over a greater number of patients, and perhaps find a problem that would have been missed otherwise. Then their [this](http://time.com/money/2995166/why-does-mri-cost-so-much/): > [@](#): > > According to the recently released Medicare data, MRIs charges are as little as $474 or as high as $13,259, depending on where you go… That’s because hospitals and medical centers can charge whatever they want, and in most cases they don’t have to justify prices or even disclose them ahead of time. What other countries have probably realized is taking the profit motive out of medicine results in more rational decisions. ---
**Author:** ![TriPolar](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/tripolar/32/3008_2.png) [@TriPolar](https://boards.straightdope.com/u/TriPolar)\ **Post date:** [November 11, 2015, 6:02pm UTC](https://boards.straightdope.com/t/why-does-tort-reform-keep-getting-mentioned-in-healthcare-debates/737248/24 "2015-11-11T18:02:01Z")
Tort reform would be great. In terms of medical care it would make practitioners and the medical industry as a whole more careful and responsible. That isn’t the kind of reform they are talking about though. The Healthcare/Tort Reform concept is just about capping judgments. ---
**Author:** ![Fotheringay-Phipps](https://avatars.discourse-cdn.com/v4/letter/f/d9b06d/32.png) [@Fotheringay-Phipps](https://boards.straightdope.com/u/Fotheringay-Phipps)\ **Post date:** [November 11, 2015, 6:12pm UTC](https://boards.straightdope.com/t/why-does-tort-reform-keep-getting-mentioned-in-healthcare-debates/737248/25 "2015-11-11T18:12:08Z")
> [@andros](#): > > I agree with the idea that doctors should not live in fear of _lawsuits_. > > They should live in fear of _committing malpractice._ > > Speaking as someone who has lost a loved one to demonstrable–and, ultimately, demonstrated–medical malpractice, I want medical professionals and facilities to always have best practices in mind, to always strive for the best interest of the patient, and to always do their jobs to the best of their abilities. > > Find me a way to ensure those other than the legal system, and I’m all ears. Two points: What’s in the best interest of the patient is not necessarily what a jury will find to be in the best interests of the patient if something goes wrong. Frequently there’s a tradeoff between a very small risk of great harm (from non-intervention) versus a much higher risk of small harm (from intervention). The debate over mammogram recommenations is a good illustration of this dynamic. A doctor is more worried about the case where something goes really really wrong and some test or procedure might have prevented it, but that doesn’t mean this approach would be in the best interests of his patients in aggregate. Besides for the above, this aspect is really beyond the scope of this discussion. The question we’re discussing here is whether tort reform would lower medical costs. What you’re suggesting is that even if it would, it’s worth keeping them higher to prevent malpractice tragedies. That’s another discussion (involving policy considerations such as above, and also the financial cost/benefits to society as a whole). > [@Procrustus](#): > > What’s a better use of resources, have a $5 million MRI machine that is used once per day, or having it used 10 times per day? An empty MRI room doesn’t generate any revenue or help any patient. It would seem like it would make sense to spread the cost of the machine over a greater number of patients, and perhaps find a problem that would have been missed otherwise. I’m not sure what point you’re addressing with this. > [@](#): > > What other countries have probably realized is taking the profit motive out of medicine results in more rational decisions. Very possible. As I said above, “_Note this is not only due to defensive medicine in the US_” ---
**Author:** ![Fotheringay-Phipps](https://avatars.discourse-cdn.com/v4/letter/f/d9b06d/32.png) [@Fotheringay-Phipps](https://boards.straightdope.com/u/Fotheringay-Phipps)\ **Post date:** [November 12, 2015, 3:04pm UTC](https://boards.straightdope.com/t/why-does-tort-reform-keep-getting-mentioned-in-healthcare-debates/737248/26 "2015-11-12T15:04:03Z")
Just happened to notice in the NY Times: [Some Older Patients Are Treated Not Wisely, but Too Much](http://mobile.nytimes.com/2015/11/10/health/some-older-patients-are-treated-not-wisely-but-too-much.html?_r=0). > [@](#): > > The researchers believed their nearly 600 respondents — mostly physicians, but also nurse practitioners and physician assistants — would recognize that such a patient risked developing dangerously low blood sugar, called hypoglycemia. But no. About half these professionals said they wouldn’t worry about potential harm from the man’s rigorous treatment regimen. > > Evidence is accumulating that older adults with diabetes, hypertension and other conditions should be treated less aggressively than they commonly are. “Deintensification,” the Michigan researchers have named this approach. > > As this and another related recent study have shown, not for the first time, getting that message out to practicing physicians has proved difficult. Among other factors, it noted: > [@](#): > > In the new Veterans Affairs study, nearly 30 percent of respondents said they lacked the time to discuss the risks and benefits. About a quarter said they feared that reducing the fictional patient’s medications could make them vulnerable to a lawsuit. ---
**Author:** ![Tom\_Tildrum](https://avatars.discourse-cdn.com/v4/letter/t/e95f7d/32.png) [@Tom\_Tildrum](https://boards.straightdope.com/u/Tom_Tildrum)\ **Post date:** [November 12, 2015, 3:35pm UTC](https://boards.straightdope.com/t/why-does-tort-reform-keep-getting-mentioned-in-healthcare-debates/737248/27 "2015-11-12T15:35:03Z")
> [@Procrustus](#): > > I have no idea, but the malpractice law in Canada is a [bit different](http://www.theglobeandmail.com/life/health-and-fitness/health-navigator/patients-odds-of-winning-medical-malpractice-suits-in-canada-arent-good-says-new-book/article10812604/) that in the US. (although even in the U.S., plaintiffs prevailing is a rare event) If the malpractice landscape is indeed that different in Canada, then it seems like a valid topic for discussion in comparing the two countries’ systems. We can argue about the magnitude of the effect, but something is there. ---
**Author:** ![regginbrow](https://avatars.discourse-cdn.com/v4/letter/r/ba9def/32.png) [@regginbrow](https://boards.straightdope.com/u/regginbrow)\ **Post date:** [November 12, 2015, 3:49pm UTC](https://boards.straightdope.com/t/why-does-tort-reform-keep-getting-mentioned-in-healthcare-debates/737248/28 "2015-11-12T15:49:29Z")
No cite right now, but medical malpractice premiums and defensive medicine make up an insigificant portion of overall medical spending in the USA. Even if this type of care and expense were 100% magically waived away, insurance premiums and overall spending would not be affected significantly. Source: years of health insurance experience. ---
**Author:** ![Bridget\_Burke](https://avatars.discourse-cdn.com/v4/letter/b/7cd45c/32.png) [@Bridget\_Burke](https://boards.straightdope.com/u/Bridget_Burke)\ **Post date:** [November 12, 2015, 3:59pm UTC](https://boards.straightdope.com/t/why-does-tort-reform-keep-getting-mentioned-in-healthcare-debates/737248/29 "2015-11-12T15:59:32Z")
> [@leahcim](#): > > Tort reform has a much broader application than just health care. It’s application to health care is just brought up more often because people are a lot more sympathetic to “my trusted family doctor is afraid of getting sued into obvlivion for missing a diagnosis because he didn’t order some obscure and expensive test” than they are to “GM is afraid of having to pay punitive damages because people were injured by a faulty gas tank”. Greg Abbott (now Governor of Texas) is [an example of those broad applications](http://farmingtonhills.legalexaminer.com/uncategorized/greg-abbott-tort-reform-hypocrite/): > [@](#): > > Mr. Abbott has been outspoken in his support for the tort reforms. He says tort reform is needed to curb “frivolous lawsuits”… For example, under Abbott’s policies, if a patient is left paralyzed from the waist down due to a doctor’s negligence, tort reform caps non-economic damages at $250,000 with no built-in increases over time, to keep up with the rising cost of living. Those ellipses show where I removed “What a hypocrite!” When Abbott was 26, he was injured by a falling oak tree, paralyzing him from the waist down. He sued the tree’s negligent owner & tree service company. The result: An ongoing settlement that will probably earn him more than ten million dollars. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [November 12, 2015, 5:50pm UTC](https://boards.straightdope.com/t/why-does-tort-reform-keep-getting-mentioned-in-healthcare-debates/737248/30 "2015-11-12T17:50:25Z")
> [@Tom\_Tildrum](#): > > Just keep in mind that a plaintiff’s med-mal lawyer is not a neutral source. But certainly is an informed one. For another, see [Stephanie Mencimer](http://www.motherjones.com/media/2007/01/blocking-courthouse-door), who writes about “tort reform” in general, not limited to med-mal. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [November 12, 2015, 5:51pm UTC](https://boards.straightdope.com/t/why-does-tort-reform-keep-getting-mentioned-in-healthcare-debates/737248/31 "2015-11-12T17:51:38Z")
“Tort reform” always gains traction because on the surface it sounds like a good idea. We’ve all heard how civil plaintiffs are getting huge payouts for tiny or nonexistent injuries. However, in practice the reform legislation is rarely tied to the problems lobbyists and lawmakers point to. They also don’t actually reduce insurance rates. Generally, they involve arbitrary caps which rarely pass constitutional muster. The Florida Supreme Court [struck down](http://www.floridasupremecourt.org/decisions/2014/sc11-1148.pdf) parts of this state’s “malpractice reform” legislation last year. Before that, malpractice payouts dropped by more than 50% over the first seven years. Guess how much malpractice insurance rates came down? 8%. Similarly, Florida has severely limited benefits available to workers’ compensation claimants over the past 15 years. Various aspects of that legislation have been struck by the FSC over that period, and we (in the field) are watching a case make its way through the appellate courts that would essentially strike the whole system on constitutional grounds. I’m a defense attorney, but the deck has been _hugely_ stacked in my favor since about 2003. ---
**Author:** ![BobLibDem](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/boblibdem/32/3149_2.png) [@BobLibDem](https://boards.straightdope.com/u/BobLibDem)\ **Post date:** [November 12, 2015, 6:25pm UTC](https://boards.straightdope.com/t/why-does-tort-reform-keep-getting-mentioned-in-healthcare-debates/737248/32 "2015-11-12T18:25:41Z")
It gets mentioned because it’s an easy answer and Republicans like easy answers. Tort reform and selling insurance across state lines will magically make all the problems with health care disappear. Republicans like to push tort reform because their contributors don’t like paying judgments. If you gave them truth serum, they’d admit that the impact on health costs would be zero but they think they have the magic answer to make the rubes fall in line. ---
**Author:** ![Fotheringay-Phipps](https://avatars.discourse-cdn.com/v4/letter/f/d9b06d/32.png) [@Fotheringay-Phipps](https://boards.straightdope.com/u/Fotheringay-Phipps)\ **Post date:** [November 12, 2015, 7:32pm UTC](https://boards.straightdope.com/t/why-does-tort-reform-keep-getting-mentioned-in-healthcare-debates/737248/33 "2015-11-12T19:32:31Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Before that, malpractice payouts dropped by more than 50% over the first seven years. Guess how much malpractice insurance rates came down? 8%. What, specifically, are you saying here? Where did the rest of the money go? > [@](#): > > I’m a defense attorney, but the deck has been _hugely_ stacked in my favor since about 2003. You seem to be implying here that as a defense attorney, your interests would be served by laws favoring capping awards and the like, such that your arguments to the contrary carry extra weight. I disagree with this. It’s in the interests of both plaintiff’s attorneys and defense attorneys to have the maximum possible awards be given out. This makes the pot bigger and the stakes higher and maximizes payouts for lawyers on both sides of the case. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [November 12, 2015, 7:37pm UTC](https://boards.straightdope.com/t/why-does-tort-reform-keep-getting-mentioned-in-healthcare-debates/737248/34 "2015-11-12T19:37:16Z")
The rest of the money went to increased profits for insurance companies. And you are right, to a degree. But you also have to bear in mind that I am also a lobbyist for the insurance companies and it’s frankly impossible to litigate over issues you don’t believe in (or rather, over time you come to believe in whatever it is you’re arguing). ---
**Author:** ![Fotheringay-Phipps](https://avatars.discourse-cdn.com/v4/letter/f/d9b06d/32.png) [@Fotheringay-Phipps](https://boards.straightdope.com/u/Fotheringay-Phipps)\ **Post date:** [November 12, 2015, 8:02pm UTC](https://boards.straightdope.com/t/why-does-tort-reform-keep-getting-mentioned-in-healthcare-debates/737248/35 "2015-11-12T20:02:28Z")
> [@Really\_Not\_All\_That\_Bright](#): > > The rest of the money went to increased profits for insurance companies. That’s only half a story. Were they making decent profits beforehand and went on to make obscene profits, or were they losing money and became profitable? [In general, there tends to be a cycle in the insurance business, and a tension between the marketing people and the actuarial/underwriting side, where one side gets the upper hand and then the other, resulting in swings in rates and profitability and attitudes to sales vs. profits.] > [@](#): > > But you also have to bear in mind that I am also a lobbyist for the insurance companies and it’s frankly impossible to litigate over issues you don’t believe in (or rather, over time you come to believe in whatever it is you’re arguing). OK, then let’s revisit this in a few years … 🙂 ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [November 12, 2015, 8:07pm UTC](https://boards.straightdope.com/t/why-does-tort-reform-keep-getting-mentioned-in-healthcare-debates/737248/36 "2015-11-12T20:07:28Z")
They were making decent profits before and are making obscene profits now. The problem was never insurance company profitability (homeowners’ insurers in Florida have trouble turning a profit, because they are more tightly regulated) but premium affordability. I’m eight and a half years in. It’s just that I’ve only been a \*lawyer \*for one of them. ---
**Author:** ![Fotheringay-Phipps](https://avatars.discourse-cdn.com/v4/letter/f/d9b06d/32.png) [@Fotheringay-Phipps](https://boards.straightdope.com/u/Fotheringay-Phipps)\ **Post date:** [November 12, 2015, 8:22pm UTC](https://boards.straightdope.com/t/why-does-tort-reform-keep-getting-mentioned-in-healthcare-debates/737248/37 "2015-11-12T20:22:14Z")
> [@Really\_Not\_All\_That\_Bright](#): > > They were making decent profits before and are making obscene profits now. The problem was never insurance company profitability (homeowners’ insurers in Florida have trouble turning a profit, because they are more tightly regulated) but premium affordability. Do you have any cites for these various claims you’ve been making? What you write seems to violate fundamental economic principles. The same competitive market forces that kept rates in check before tort reform should logically keep them lower after tort reform. Here’s an article which claims that [Florida has the highest loss rate among states when it comes to settling medical malpractice claims, according to a new study from Aon Risk Solutions and the American Society for Healthcare Risk Management. The cost of settling and defending medical malpractice claims in Florida is 2.9 times the national average.](http://www.bizjournals.com/southflorida/news/2015/10/23/floridas-culture-of-medical-malpractice-claims.html) This does not jibe with your claim that insurers are making obscene profits now. ---
**Author:** ![Grim\_Render](https://avatars.discourse-cdn.com/v4/letter/g/a87d85/32.png) [@Grim\_Render](https://boards.straightdope.com/u/Grim_Render)\ **Post date:** [November 12, 2015, 9:34pm UTC](https://boards.straightdope.com/t/why-does-tort-reform-keep-getting-mentioned-in-healthcare-debates/737248/38 "2015-11-12T21:34:02Z")
> [@Fotheringay-Phipps](#): > > Do you have any cites for these various claims you’ve been making? What you write seems to violate fundamental economic principles. The same competitive market forces that kept rates in check before tort reform should logically keep them lower after tort reform. Health care as a market has no price elasticity. Zero. It also has high barriers to entry and don’t function like other markets for a host of reasons. Health Care Economics is a branch of economics that looks into the differences. ---
**Author:** ![Fotheringay-Phipps](https://avatars.discourse-cdn.com/v4/letter/f/d9b06d/32.png) [@Fotheringay-Phipps](https://boards.straightdope.com/u/Fotheringay-Phipps)\ **Post date:** [November 12, 2015, 9:44pm UTC](https://boards.straightdope.com/t/why-does-tort-reform-keep-getting-mentioned-in-healthcare-debates/737248/39 "2015-11-12T21:44:19Z")
> [@Grim\_Render](#): > > Health care as a market has no price elasticity. Zero. It also has high barriers to entry and don’t function like other markets for a host of reasons. Health Care Economics is a branch of economics that looks into the differences. You’re wrong about all that, but I’m not going to go into details because we’re not discussing the health care market at this time - this is about the malpractice insurance market. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [November 12, 2015, 9:55pm UTC](https://boards.straightdope.com/t/why-does-tort-reform-keep-getting-mentioned-in-healthcare-debates/737248/40 "2015-11-12T21:55:15Z")
loss rates =/= profit. Florida in general is an expensive state to litigate in, because we have a lot of old people (our median age is the fourth highest in the nation). Old people have far more health complications, are far more likely to be permanently impaired, and so on. Florida is not a particularly litigious state. We have 34 lawyers per capita, 19th in the nation (18th if you don’t count DC). Anyway, you can look at other state numbers just as easily. Louisiana and Texas enacted essentially identical med-mal reforms. Louisiana malpractice rates didn’t go down at all; Texas’ dropped spectacularly. [Previous page](https://boards.straightdope.com/t/why-does-tort-reform-keep-getting-mentioned-in-healthcare-debates/737248.md?page=1) [Next page](https://boards.straightdope.com/t/why-does-tort-reform-keep-getting-mentioned-in-healthcare-debates/737248.md?page=3)