Evidence grows on lack of merit in GOP attack on harmed patients’ legal rights

Tom_Price_official_Transition_portrait-240x300Doctors should hold the prime role in the nation’s medical policy making, Tom Price, the orthopedist who is the Trump Administration’s top health expert, has insisted. But will the U.S. Health and Human Services Secretary heed top experts in his field, writing in some of medicine’s leading journals, that he and GOP partisans lack real evidence for their assault on patients’ rights to seek legal redress when injured by medical care?

Experts from the Stanford University’s medical and law schools have just written in The New England Journal of Medicine that “this an odd time for [Price and] Congress to be considering malpractice reform.” Why? As they noted:

Malpractice environments are currently stable: the incidence of paid claims has shrunk by half in the past decade, indemnity-payment levels have declined or plateaued, and many physicians pay less for liability insurance than they did a decade ago. Price has claimed that defensive medicine is responsible for a quarter of U.S. health care spending — about $650 billion — but the best estimates are closer to $50 billion. So is a push for liability reform at this moment inappropriate? We don’t think so.”

Their deep doubt about the GOP’s so-called “tort reform” package— as I’ve written this is a “prong” in partisans’ long-planned push to repeal and replace the Affordable Care Act, aka Obamacare, and to reshape American health care— is echoed in JAMA Medicine. There, researchers further delve into counterfactual exaggerations about what physicians end up paying when sued for medical malpractice and whether this varies by specialty. The experts conclude:

Between 1992 and 2014, the rate of malpractice claims paid on behalf of physicians in the United States declined substantially. Mean compensation amounts and the percentage of paid claims exceeding $1 million increased, with wide differences in rates and characteristics across specialties. A better understanding of the causes of variation among specialties in paid malpractice claims may help reduce both patient injury and physicians’ risk of liability.

As a Health Day article further explains, the JAMA article was based on 280,000 paid claims in the National Practitioner Data Bank, a federally maintained database that tracks medical malpractice payments. Experts told the health news service that earlier changes in laws on suits in the civil justice system appear to have worked, and that has meant that only the claims with great merit advanced—and judges and juries have made awards accordingly, such that there were some higher payments.

But other fundamentals did not shift: “The top 1 percent of physicians with the most paid claims was responsible for about 8 percent of all paid claims.” As Adam Schaffer, the study’s lead author and a physician at Brigham and Women’s Hospital in Boston, told Health Day, “The people with the most paid claims have a disproportionately large number of paid claims. … We can’t say why that is.”

There are variances among and within specialties, though the study found declines of 14 percent in cardiology and 76 percent in pediatrics. Diagnostic error was the most common cause of suits, and a third of cases resulting in payments exceeding $1 million (a very percentage) involved a patient death.

These two journal articles follow a news story that I’ve written about, and that was published by the independent, nonpartisan Kaiser Health News Service.  It, too, reported a lack of factual substantiation for the GOP’s unwarranted attack on the rights of injured patients to sue for medical harm.

In my practice, I see the suffering inflicted on patients injured while seeking medical care. They want not only justice in our civil system but also, often, will need significant financial support for a lifetime. His confirmation hearings surfaced how Secretary Price may have ethical challenges in separating competing interests, including his own, and there are questions rising anew in this area. But if he is a physician of his word, and he truly wants to ensure that medical expertise gets prime consideration in policy making, he and his GOP colleagues should hear the growing opposition to changes they want in our tort laws and back off them because they lack merit.

Patrick Malone & Associates, P.C. listed in Best Lawyers Rated by Super Lawyers Patrick A. Malone
Washingtonian Top Lawyer 2011
Avvo Rating 10.0 Superb Top Attorney Best Lawyers Firm
Contact Information