23 Different Health Reform Plans, and Not One Mentions Torts

It is amazing to me that there can be numerous health care plans in Congress plus a jillion speeches on the topic by the President and not once does anyone mention "torts."  Now, I am not one to ascribe all cost problems in the medical field to defensive medicine and tort settlements.  Buthey t certainly are a factor.  It is just stunning that a President can stand up and talk numerous times about "unnecessary tests and procedures" and ascribe all of these to some weird profit motive by the doctors - weird because generally, the doctor gets no extra revenue from these tests, so somehow he or she is motivated by the profits of a third party lab.

But I think the rest of us understand that American tort law, which allows juries to make multi-million dollar judgements based on emotions and empathy rather than facts and true liability, has at least a share of the blame.   Not just the settlements, but the steps doctors go through to try to protect themselves from frivolous suits down the road.  Here are two interesting stories along these lines.  The first from Carpe Diem:

Zurich University Hospital has stopped treating North American "medical tourists," fearing million-dollar claims from litigious patients if operations go wrong. Hospitals in canton Valais have also adopted measures to protect themselves against visitors from the United States, Canada and Britain.

"The directive applies only to patients from the US and Canada who come to Zurich for elective, non-essential health treatments," said Zurich University Hospital spokeswoman Petra Seeburger.

"It is not because treatment is not financed; it is because of different legal systems." In a statement the hospital said it was "not prepared to risk astronomical damages or a massive increase in premiums." Seeburger emphasised that the restrictions only affected people not domiciled in Switzerland.

Apologies to Mark Perry for quoting his whole post, but if you are not reading Mark Perry, you should be.  The second example comes from Overlawyered:

Oh, I miss the days when you got a radiology report that said, "fracture right 3rd rib, no pneumothorax". Because of frivolous lawsuits radiologists have learned to be vague, noncommittal and to pass the buck of possible litigation. So now you get a 2 page report that says "linear lucency in right 3rd rib, clinical correlation recommended, underinflated lung fields cannot exclude underlying interstitial disease and or masses. CT recommended for further evaluation, if condition warrants." along with several other paragraphs of lawyer imposed legalmedspeak"¦.


  1. Scott:

    Want to remove a whole bunch of those unnecessary tests and procedures? Pass legislation (or win a court battle) requiring that doctors/hospitals/clinics/etc provide copies all all tests, notes, and diagnostic opinions upon request of the patient. This way the patient can take these to another physician for a second opinion without having to run separate tests, or, can know whether they need to run additional tests for whatever reason.
    1. No good comes from making everyone start from zero on the same problem.
    2. A person's medical record should be their property if they want it.

  2. DKH:

    I think Obama did mention tort reform in his address to Congress. It may have mostly been a bone to Republicans, but I didn't watch, so I don't know.

  3. morganovich:


    he did indeed make somewhat encouraging noises during the address as an offering to the republicans. the gist of it was to create special panels to hear medical liability cases (like those that do tax or bankruptcy) to adjudicate claims. clearly, real medical expertise and an understanding of outcomes etc is a good idea. juries are too easily swayed toward large grants to injured people and have a difficult time determining what is negligent. our system of expert testimony paid for by the defense and plaintiffs only exacerbates this as a jury has a difficult time making substantive judgments on the issues and has no idea which one to beleive.

    while this is a welcome step, it, in and of itself, guarantees little. caps on pain and suffering, punitive damages, etc are also really needed. the current size of awards has gotten wildly out of hand as abuses of the contingent fee system have mushroomed.

  4. morganovich:

    oh, also, there is some reason to be skeptical of obama's commitment to this plan. it has no real support in congress. if one were cynical, one could say it was a figleaf of bipartisanship to cover the fact that compromise is really not going to happen.

    suggesting something you know cannot pass is not much of an offering.

  5. orthodoc:

    Scott: Want to remove a whole bunch of those unnecessary tests and procedures? Pass legislation (or win a court battle) requiring that doctors/hospitals/clinics/etc provide copies all all tests, notes, and diagnostic opinions upon request of the patient.

    That's already the case. If you want your records, all you need to do is ask. Help yourself.

  6. tribal elder:

    'If you want your records, all you need to do is ask. Help yourself.'

    I've had contrary experience. Providers, at least in Illinois, were not so accommodating in releasing my deceased spouse's records. Perhaps that was because the records I sought for that showed blood culture results (positive for gram negative) available at 7AM were not provided to the physician until 7PM.


  7. nom de guerre:

    yes, avoidable dreadful fatal mistakes DO happen in the course of medicine being practiced, elder. i'm sorry it happened to your loved one. but then, avoidable dreadful mistakes happen in any field of endeavor. that's life. but when one demands 100% absolute safety and perfection of a system - any system - as you seem to be doing, then that system will by definition bog down and eventually grind to a halt. to go forward would be too risky.

    if we were to take today's modern demands of absolute safety and perfection and send it back in time 100 years or so, what would the world look like today? for starters, there'd be no cars - people *die* in car crashes. the manufacturers should have foreseen this. there'd be no airplanes - ditto. no computers - they sometimes crash and lose data. penicillin? uh-uh. some people are allergic. and on and on.

    yes, mistakes do happen. that's why they're called "mistakes". or "accidents". the national urge, fueled by scummy lawyers, to criminalize all mistakes and accidents is why we'll end up a failed nation, sooner or later. no risk - no reward. in medicine, you'll see docs simply refusing to practice risky disciplines. it's already happening right now: there are big chunks of the country in which obstetrics docs are in critically short supply. they're walking away from it, tired of being sued every time there's a complication with a birth. i'd imagine surgeons will be next. what'll we do then? take lots of placebos? will we be able to sue the placebo manufacturer if there's no instant cure? as for docs being reluctant to hand over documents showing they made an error, welcome to the world. *everybody* does that. cops won't gladly provide written proof of their malfeasances. neither will lawyers. neither will news-gathering organizations. government will just classify evidence of *their* screwups. lawyers understand the risk-reward relationship extremely well, BTW. it's why they fight any notion of a "loser pays" system tooth and nail.

    no accidents or screwups are allowed in america today - except by lawyers. nice work if you can get it.

  8. Dr. T:

    "It is just stunning that a President can stand up and talk numerous times about “unnecessary tests and procedures” and ascribe all of these to some weird profit motive by the doctors – weird because generally, the doctor gets no extra revenue from these tests, so somehow he or she is motivated by the profits of a third party lab."

    Perhaps they should ask a clinical pathologist's opinion. There are three major reasons for excessive ordering of tests and imaging studies.

    1. To save time. Example: The patient's history and symptoms may narrow the diagnosis to one of five diseases. Additional questioning and examination could narrow the diagnosis to two diseases, and a single lab test could provide the final diagnosis. However, the doctor will get no extra money for the additional time spent with the patient, and there are other patients waiting. Therefore, the doctor orders a bunch of lab tests to cover the five possible diagnoses. Are these unnecessary tests? Not if they save time (physician time is worth more than most tests) and allow more patients to be treated. To me, this is a legitimate use of lab and imaging resources.

    2. To gain unneeded certainty. Example: Based on history, symptoms, examination, and simple tests, the doctor is 85% certain of the diagnosis of a minor medical problem. But, for reasons unknown, the doctor wants more certainty. This usually requires a battery of expensive tests performed by a distant reference lab. In almost all such cases, the doctor should just prescribe appropriate therapy. Only if the therapy fails should the patient be subjected to more lab testing. (One caveat: If the therapy has a high risk of nasty side effects, then the certainty of the diagnosis needs to be very high.)

    3. To hit the duck with a shotgun pellet. Example: A mediocre doctor has no clue what's wrong with the patient. Instead of admitting this and referring the patient to someone else, the doctor orders a zillion lab tests (and possibly a bunch of imaging or ultrasound studies). The doctor hopes that the test results will yield a diagnosis. They rarely do, but some will be 'abnormal', and the doctor will order more tests related to the abnormal one. This process can go on for weeks or months, and the doctor just hopes that the patient gets better with time.

    What's important from the political viewpoint is that doctors gain no direct profits from ordering unneeded lab tests unless they own a laboratory. Otherwise, ordering lab tests is an added administrative expense and an added task for the doctor (who must review and interpret every lab result on every patient).

  9. Mesa Econoguy:

    Here’s the major reason: Congress (and the Executive Branch) is controlled by Democrats, and the Association of Trial Lawyers of America, now referred to as the American Association for Justice! Dammit! is firmly in the Democrat column:

    An Examiner analysis of the 15 firms on the National Law Journal's "2008 Plaintiff's Hot List" shows that for 2009, their employees have contributed $636,305 to federal politicians and PACs. Only $4,875 of that amount has gone to Republicans, meaning that the nation's top trial lawyers are giving more than 99 percent Democratic this year. The PAC for the American Association of Justice, the top trial lawyer lobbying group, has been marginally more balanced, giving Democrats a mere 96 percent of its $627,000 in contributions.

    These trial lawyers are especially concentrating on the Senate. Members of those same 15 firms have given $236,000 to the Democratic Senatorial Campaign Committee this year. And trial lawyers know that the Senate is controlled by one of their own -- Senate Majority Leader Harry Reid, D-Nev., who faces a potentially difficult re-election. Reid has taken in some $54,000 from the top 15 firms. According to OpenSecrets, he has taken $978,000 from the legal industry as a whole.

    More here.

  10. Michael Kirsch, M.D:

    I heard the president's speech. It is easier to 'find Waldo' than to find meaningful tort reform in the president's health care plan. http://www.MDWhistleblower.blogspot.com

  11. Eddie:

    A big problem with tort reform and the trial lawyers in general is the incredibly partisan politicization of the field. More than ever before, trial lawyers and trial lawyer organizations are the strongest political ally of the Democrats, regardless of position. They have become so firmly entrenched in partisan politics, causing Democrat lawmakers to automatically oppose anything that might infringe on their causes and business, and likewise because they are known as an unmovable ally of the opposition, Republican lawmakers will not budge an inch on tort reform.

    It seems that the political alliances, in all cases, override the well-being of the system. Both sides support their arguments with anecdotes over substance, and constant obfuscation on both sides, with the only hard facts coming out of extremely involved parties and thus questionable, make it impossible to gain a clear picture of what is really needed to solve the problem.

    Personally, I think some serious changes in the medical/legal area need to happen, but a system of arbitrary caps as is usually proposed doesn't really seem like an elegant or appropriate solution.

  12. Michael:

    I think loser pays is a better solution.

    About 6 years ago, a woman who was parallel parked, pull from her spot and in to the side of my car. The damage was little more than paint scrapping, but 3 years later I got sued for $25,000 for her life altering injuries. My insurance company gave her a few thousand dollars to go away.

    Under loser pays, this never would have happened and all our insurance rates would be lower.

  13. Phentermine:

    I wonder if anyone realizes how many people are employed at hospitals and doctors’ offices to ensure proper records are kept and forms signed to prevent the inevitable lawsuits.