Without legal reforms, the health care system will remain broken

There’s an old joke about the boy who goes to the doctor and uses his index finger to point all over his body, explaining, “It hurts here, here, here and here.” The doctor sighs and says, “Son, your finger is broken.” This poor kid was looking for his ailment in all the wrong places. That’s exactly what’s happening in Washington as our leaders grapple with health care reform. They’re missing what’s really broken.

Our leaders in Washington want to talk about meaningful reform and reining in costs to make health care more affordable, but they refuse to address the elephant in the room —lawsuits and liability costs and the enormous “surcharge” they place on America’s health care. At a recent meeting of the American Medical Association President Obama talked about overhauling our health care system and lowering costs for everyone. He even told the doctors that “excessive defensive medicine,” conducted out of fear of lawsuits, should be limited. But in the next breath, Obama said he won’t support efforts to rein in one of the biggest healthcare cost drivers: runaway medical liability lawsuits. You can’t expand access to healthcare, keep doctors in the examining room, and control costs while letting healthcare lawsuits spin out of control.

Not only unwilling to contain existing lawsuits, the President and Congress appear committed bringing on even more lawsuits by stripping away liability protections for manufacturers of highly regulated products like medicines and medical equipment. Even if manufacturers follow every rule and regulation set by the government, they’d still be subject to an avalanche of lawsuits. Consumer prices would skyrocket as manufacturers grapple with a maze of conflicting state by state regulations and an onslaught of random lawsuits. This personal injury lawyer bonanza does not bode well for our health or our wallets.

Rampant – and often baseless – medical liability lawsuits have spawned a culture of defensive medicine where physicians protect themselves by routinely ordering unnecessary and expensive procedures, adding needless costs to the system. In fact, ten cents of every dollar spent on health care in the U.S. is driven by medical liability, according to Price Waterhouse Coopers. Some estimates place the annual cost of defensive medicine at $100 billion to $200 billion.

Nationwide, almost 40 percent of medical malpractice lawsuits are baseless – yet many of these cases are settled for an average payout of $313,000. The Congressional Budget Office estimated that health care providers were likely to spend more than $30 billion in 2008 to defend against and pay medical liability claims. Even baseless cases cost money to defend or settle and health care consumers ultimately inherit those costs.

Medical liability concerns impose costs on the health care system that force a staggering 3.4 million Americans to the rolls of the uninsured every year, according to the Pacific Research Institute. How can Congress tout reforms designed to expand access to health care, while ignoring the substantial cost drivers in our health care system?

American voters clearly see the err of this thinking: According to a recent national survey, the majority of voters believe that the most effective way to lower health care costs is to reform medical liability laws to reduce the number of baseless lawsuits against doctors and hospitals. Simply put: without legal reforms, you can’t make a dent in health care costs.

Washington should look to Texas to see how access to health care improves when medical liability reforms take hold. Thanks to changes approved by Texas voters in 2003, we now have sensible medical liability laws that have allowed doctors and other health care professionals to spend more time in the exam room and not the court room. Our state has more doctors practicing statewide and in historically underserved areas, as well as more specialists in high-risk practice areas. Texas licensed 3,621 new doctors in 2008, the highest number of any year on record. Overall, rural Texas has seen a 31 percent increase in emergency medicine physicians during the past six years.

None of this progress would have been possible if medical liability lawsuits continued to spiral out of control. Congress should listen to what Texans already know: Until you fix the medical liability lawsuit problem, the health care system will stay broken.

C. Mark Chassay, M.D., is co-manager of Texas Sports & Family Medicine, based in Austin.

Nothing contained in this blog is to be construed as necessarily reflecting the views of the Pacific Research Institute or as an attempt to thwart or aid the passage of any legislation.

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