Effective health care reforms must reduce the excessive costs imposed by frivolous lawsuits. Studies have shown that medical tort reform could reduce total health care premiums between 1 and 3 percent. As estimated by the American Action Forum, this could mean “roughly $15 billion” in savings from effective (but partial) medical tort reform.
Given the desperate need to bend the health care cost curve, implementing medical tort reforms that rein in over-zealous lawyers should be a no-brainer. But then again, this is politics, nothing is a no-brainer.
Leaders of more than 20 state and local governments are pursuing the opposite path by filing frivolous lawsuits against opioid manufacturers. Specifically, the states are accusing opioid manufacturers of committing fraud and deceptive marketing practices with respect to their opioid medications. Illustrating the lawsuits’ tenuousness, the California Supreme Court, hardly a bastion of conservative jurisprudence, has already looked very skeptically on the plaintiff’s claims.
The actions of the AG’s are simply an attempt to shake down private industries in order to pad government coffers. Worse, the AGs are outsourcing much of the necessary work to file these lawsuits to private lawyers, who will also reap an oversized payday if the lawsuits are successful. Typically, these payouts are around 20 percent of the reward, therefore, if the judgements hit the billions of dollars the plaintiffs hope, then this would be a nice payday indeed.
While state budgets might benefit, in the short-term, this litigation exemplifies why health care costs are out of control in the U.S. Consequently, any short-term gains to a few states will come at the expense of long-term pain throughout the entire health care sector.
These lawsuits also directly risk the value that opioid medications bring to the millions of patients who live with pain. An estimated 76 million Americans over the age of 20 currently endure pain that has lasted more than 24 hours. And, for those patients suffering the most, chronic pain can lead to other health problems that include severe depression, as well as adverse impacts on the cardiovascular, immune, and musculoskeletal systems.
There are also financial consequences. People who suffer from chronic pain miss work more often, and are less productive at work due to their chronic pain. All told, the financial cost of chronic pain has been estimated to be between $560 billion and $635 billion.
Effectively treating chronic pain is difficult, but opioids clearly have a role to play. Under the new CDC guidelines, opioids are the standard of care for certain patients such as for patients undergoing cancer treatment, palliative care, and end-of-life care. For other pain patients, the option to prescribe opioids is valuable, but will not always be appropriate.
Undoubtedly there is a large, and growing, opioid abuse and diversion problem as well. Approximately 2.1 million people were addicted to opioids as of 2012. The abuse of opioids were involved in over 16,000 deaths (as of 2013), and annually impose $72 billion in medical costs.
A careful balance is necessary. It is imperative that opioid medications remain available for those pain patients who will benefit. Just as importantly, it is imperative to address the problems of opioid abuse and misuse. Such actions should include strict requirements, such as mandatory urine drug tests, that can ensure patients are properly adhering to their medications. Encouraging new technologies, such as opioids with abuse-deterrent technologies that reduce the risks of abuse and misuse, are also part of the answer.
While none of the potential solutions are a panacea by themselves, taken as a whole a comprehensive strategy is possible that minimizes the problems of opioid abuse while ensuring that opioid medications remain available to patients that require them.
What should not be part of this strategy, however, is empowering private trial lawyers with another opportunity to shakedown the medical profession. Frivolous lawsuits are already driving up the costs of the overall health care system. Expanding their opportunities to fleece the health care system will not reduce the costs associated with the national opioid crisis, but it will reduce pain patients access to needed medications.