Uniquely American
Saturday, November 15 2008
Uwe Reinhardt posts that U.S. health care costs so much because of four factors, but Kevin, MD only picks up on the last one: “uniquely American tort laws”. But what exactly does that mean? Why are American tort laws so unique?
I actually agree that we need malpractice reform in this country, but tort reform won’t solve the underlying problem, because our uniquely American system of torts is part of our uniquely American approach to risk. Most industrialized nations assume a fairly hefty portion of the risk faced by their citizens – especially concerning health care, which means universal or socialized medicine.
But in the US, we leave our citizens to face a far greater amount of risk – but then allow them access to the courts as a means to arbitrate and ameliorate some of that risk. Medicine is risky – some 100-195 thousand patients die from in-hospital medical errors alone, and many more severely injured. Granted, the tort reform system is an imperfect tool for managing that risk – but PWC, AHIP, and Kevin, MD seem to presume that all costs related to medical malpractice are money wasted. Insofar as some of that money goes towards people who were injured and have legitimate claims, that’s simply not true.
So the problem is that medicine is risky. Yes, tort law is an imperfect means to deal with these risks, but tort reform reduces access to courts, thus shifting the burden of risk and its associated costs onto the patients who are injured by malpractice – precisely those people whose claims are legitimate and need the most help. If a medical error leaves you paralyzed, you’re going to need a lifetime of costly medical care – and who should pay for that? In America, that’s a decision for the courts. In lots of other countries, that question has already been answered in the way they organize their health care system.
There will always be some risk in medicine, and thus some cost associated with that risk. Yet any reform that shifts the costs of that risk onto the most vulnerable people in the system – those already injured by it – isn’t just bad medicine, it’s wholly unethical. But we might still be able to achieve some savings by making our management of those costs more efficient. So I can support a system that:
- Gives providers serious incentives to reduce medical errors, since that’s the fundamental problem. There will always be some risk, but there’s a lot of unnecessary harm in the system.
- Gives providers and injured parties a more efficient way to recognize and address error. That is, the system should admit fewer illegitimate claims and more legitimate claims, while providing a straightforward way to resolve those claims.
- Gives patients more information about the risks of various forms of care. This means a lot more transparency and specificity about those risks. Instead of signing blanket waivers acknowledging vague warnings that “serious injury or death may occur”, patients should have access to hard numbers specific to the their physician and hospital.
Advocates for tort reform need to explain how their proposals do these things – or any one of them. More generally, they need to decide who should bear the risk of medicine and the costs associated with that risk: those who benefit from the system, or those who suffer the consequent harm. There’s only one right answer.
(See also this post, which discusses the number Kevin cites in his post.)
