Too many Oregon legislators refuse to support Gov. John Kitzhaber's health reform bill (Senate Bill 1580) unless it contains medical malpractice reform. If their goal is to kill the bill, they will succeed. If their goal is to create an authentic long-lasting solution to our malpractice mess, this strategy will be disastrous. Here's why.
Most states and our federal government struggled with tort reform for decades. With one exception (see below), none produced even a hope of a permanent solution. The chances of our Legislature succeeding in the next month where all previous attempts failed are imperceptible.
Of these previous attempts, most only revised monetary caps on awards. However, health care dollars spent on defensive medicine are nearly eightfold larger than that spent on premiums; nationally, $55 billion versus $7 billion. While caps temporarily reduced malpractice premiums in some states, the vastly greater sums spent on defensive care remain unchecked. No level of award caps will remove the need of physicians to protect themselves by practicing defensive medicine.
Health care dollars are not saved with caps.
These cap proposals dodge the sordid reality of our malpractice morass. Less than 3 percent of medically injured patients ever receive a penny of compensation. Less than half the money paid in premiums ever gets to patients; legal costs consume the rest. Caps will not increase the number of injured patients receiving compensation, nor will they reduce the number of lawsuits.
Furthermore, every state legislature enacting caps in one session finds the next year's session inundated with well-funded lobbyists from physicians and attorneys, all ready to take up weapons again. This war never ends.
The single state with a hope of effective malpractice reform is Vermont. Under its proposed health care system, every patient receives needed care for any injury, medical or not, regardless of the presence or absence of negligence. No injured patient need resort to legal action to get needed medical care. The system also created a compensation fund specifically designed to award financial support to medically injured patients. The amount is determined by patient need, not proof of physician culpability.
One final point: The public perceives that we physicians act on negligent care only after court action. In many cases, sadly, this is true. If we are to assure patients they do not need lawsuits to promote better care, we physicians must be more visibly proactive in policing ourselves. This means having medical groups, hospitals and medical boards detecting and remedying negligent care before court action occurs and, hopefully, before patients are injured.
Oregon deserves the chance to provide better care at lower cost promised by the health care transformation act. It also deserves authentic, long-lasting medical malpractice reform. We are unlikely to get that reform with caps, amendments to an already controversial bill, or before the next full moon. Pass the health care transformation act first, and then give tort reform the detailed and unhurried attention it needs.
Physician Samuel Metz is a member of Mad As Hell Doctors and Physicians for a National Health Program, both of which advocate for publicly funded universal health care. He lives in Southwest Portland.
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