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The Hill has reported that the American Medical Association is urging the congressional supercommittee to enact federal medical malpractice tort reform to help reduce the federal deficit.

The American Medical Association and 98 other medical groups signed letters to the supercommittee urging it to adopt tort reform as part of its effort to cut at least $1.2 trillion from the nation’s deficit. The AMA said limits on malpractice suits could save the government more than $62 billion over 10 years, citing estimates from the Congressional Budget Office.

However, the AMA’s use of these statistics for deficit savings is misleading in a number of areas.

CBO Study Did Not Consider Health Outcomes

In a letter to Senator Patrick Leahy, Congressional Budget Office director Douglas W. Elmendorf indicated the CBO did not consider the effect of tort reform on patient health and medical outcomes. Remarkably, the CBO determined that "many studies of malpractice costs do not examine health outcomes." Though one study that did look at outcomes found that a 10% reduction in costs through tort reform would raise the overall mortality rate by 0.2% (meaning worse patient outcomes and more patient deaths).

Why would tort reform cause worse outcomes for patients? First, because tort reform immunizes bad doctors who harm patients. Second, because victims who cannot recover the full amount of their damages (or who are denied access to the courts because of the caps) are not able to afford the level of care required for good outcomes.

CBO Study Did Not Consider Increased Use of Medicare, Medicaid by Victims

Curiously absent from the CBO report was any discussion of increased used of goverment-sponsored health care by medical malpractice victims.

Tort reform has the perverse effect of bloating federal government and penalizing taxpayers through government funded bailouts of negligent actors. When a negligent doctor is protected against taking responsibility for his or her conduct, who then bears the burden for caring for the victim? Unless the victim is sufficiently wealthy (unlikely), that burden falls on taxpayers via Medicare, Medicaid and other government assistance programs.

Tort reform is nothing more than a poorly disguised government bailout of negligent conduct.

Consider this scenario: Patient Smith undergoes a routine procedure by Doctor Jay. Unknown to Patient Smith, Doctor Jay has had several complaints against him and has been sued numerous times, but settled the cases confidentially. Doctor Jay violates the standard of care and permanently injures Patient Smith. Because of tort reforms, though, Patient Smith is unable to find an attorney to represent Smith against Dr. Jay. Doctor Jay is effectively immunized against his bad conduct. Patient Smith loses his job and requires substantial medical care for the remainder of his life. Smith can’t afford health insurance or is uninsurable. Smith’s medical care is then provided by Medicare or Medicaid at taxpayer expense, when it should have been covered by Dr. Jay’s medical malpractice insurance.

In that scenario, the negligent doctor is rewarded, the victim is punished, and taxpayers pick up the bill.

CBO Report Failed To Consider The Constitutionality of Tort Reform

The CBO letter and other reports discuss broad tort reform measures, including caps on damages without consideration of the constitutionality of such reforms. As I have discussed before, tort reform caps on damages have been routinely found unconstitutional.

Note: Conservative commentator, Andrew Cochran, routinely discusses these issues on his blog, The 7th Amendment Advocate. I encourage you to check out Andy’s writing.

As Andrew Cochran notes in his post today, Sen. Tom Coburn Splits With AMA, Medical Groups Over Federal "Tort Reform" Bills, leading conservatives across the country are in consensus that such reforms fly in the face of constitutional protections:

In contrast, the American Medical Association and numerous medical groups are asking the supercommittee to squash our constitutional rights and grant total immunity to medical professionals from their errors. They sent a letter to the supercommittee that ignores the clear consensus against federal tort reform by respected conservative legal experts such as Professor Randy Barnett; longtime tort reform proponents Walter Olson and Ted Frank; Republican Members of Congress such as Sen. Coburn and Reps. Ted Poe, John Duncan, and Ron Paul; and the largest association of state legislators in the country. Rolling over the Constitution and Bill of Rights is nothing new for the AMA and most of their fellow medical lobbying groups, the co-conspirators in the enactment of ObamaCare, with its equally unconstitutional individual mandate to buy health insurance.

Damage caps – like those on non-economic damages – inequitably punish the young, the old, the poor, and the unemployed. Consider the following scenario: A 15-year-old girl’s procedure is negligently botched resulting in severe facial disfigurement. She was not employed at the time of the injury, so there are no damages for lost wages. There was nothing that could be done to repair the procedure, so there are no future medical expense damages. Yet, this young woman must live the next 50-70 years with severe facial disfigurement. She must face daily challenges of coping with a society that values appearance. She must face the reality that she may not ever experience dating or marriage or children. Yet, proposed tort reform would cap the young woman’s damages at $250,000 (only $5,000 per year if she lived to age 65 – even less assuming she lives longer).

Caps on damages and other hurdles effectively shut the courthouse doors for many and fundamentally restricts their constitutional right to trial. The 7th Amendment is the ultimate lynch pin for all other constitutional rights, which is why it’s not just democrats and trial lawyers standing up for this fundamental freedom, but also constitutional conservatives who oppose attacks on 7th Amendment rights through tort reform.

What is your remedy if someone violates your constitutional rights to free speech, to religious freedom, to keep and bear arms, to contract, etc.? These are civil law (or civil justice) claims in which you take the bad actor to court in order to have your rights protected. What happens when access to courts is limited? What happens when access to court is so lopsided that the average person cannot gain access? What happens when powerful lobbyists control the courts like they control other branches of government?

[More on your 7th Amendment Rights]

(c) Copyright 2011 Brett A. Emison


  1. Gravatar for Razia

    You are correct that tort reform closes the door on many patients seeking a medical malpractice claim. It does so in two ways. One, the patient is limited to a much smaller potential award, and two, not many attorney's will take the case. Lawmakers put tort reform in place in an effort to reduce frivolous claims. It works by cutting out a lot of claims but it hurts the patients who are truly injured and deserve or need more compensation than the small amount the cap allows.

  2. Gravatar for Cilla Mitchell

    Ever since Governor Rick Perry signed the Tort Reform Act in 2003, there has been a trail of collateral damage left behind.

    In Texas, Tort Reform is used as a legal weapon against Texans.

    Providing a link to a video showing how Tort Reform is working out here in Texas, or not.

    If link is not working, just Google Cleveland Mark Mitchell, then click on youtube Cleveland Mark Mitchell December 12 1950 - April 26 2008.

    If you want to see the face of the doctor who dropped the ball in the video, just Google WHY DID YOU DROP THE BALL DR ANDRADE? He is free to practice medicine in a NYC clinic.

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