Medical Device Daily Washington Editor
WASHINGTON — Tort reform could not be a more contentious issue, largely because of its purported impact on defensive medicine, but a panel appearing at the Georgetown University School of Law (Georgetown Law; Washington) concluded that a change in the current system of tort is likely to have little impact on the overall cost of modern healthcare. However, one of the panelists acknowledged that the mere fact that tort reform offers no silver bullet for cost control is not a reason not to do it.
Gregg Bloche, MD, of Georgetown Law, said the aim of the event was to serve as a "truth squad for some of the claims made in the healthcare debate regarding the role" of tort reform. Some ideas "become assumed wisdom in the public discussion" through repetition, he said, adding that the panel will "consider whether malpractice reform should be part of a grand bargain" in the reform debate.
Bloche said that television news programs take up the topic routinely, but that the claims are rarely questioned vigorously. "Even President Obama has stepped gingerly around this topic," he remarked in reference to a statement made recently by the president. Obama is on record as saying, "I don't believe malpractice reform is the silver bullet, but I've talked to doctors enough to know that defensive medicine may be contributing to unnecessary costs" during an address to Congress last month. He also promised to roll out some demonstration projects to address tort law, but his discussion of this lacked specifics (Medical Device Daily, Sept. 11, 2009).
So what is known about the effect of the current tort system on healthcare? "It turns out we know a great deal, but what we know has been almost ignored in the ... high-visibility" discussions on television and in print, Bloche said. "What we're not hearing on the Sunday talk shows ... is that the medical malpractice system, including defensive medicine ... adds at most several percentage points to annual healthcare spending." He argued further that medical torts "are not a contribution to our annual rate of increase." Nonetheless, he offered the perspective that "the system ... is profoundly flawed in ways that its political defenders do not like to acknowledge."
David Hyman, MD, of the University of Illinois (Champaign), posed the question of whether a healthcare version of a grand bargain is to be had where tort reform is concerned. He said that the rhetoric often casts physicians as angels and attorneys as demonic figures, but these characterizations are a bit simplistic.
Hyman, who penned the widely reviewed and sometimes excoriated book "Medicare Meets Mephistopheles," seconded Bloche's point that there is "a really profound mismatch between what we know" about malpractice and "the political and public polling perceptions" on the topic. As for defensive medicine, he acknowledged that it is "real, but not all of it is bad," adding that it is "pretty hard to quantify, but is smaller and harder to get rid of than you think."
As for political bargaining chips, Hyman remarked, "if there's a grand bargain here, it's probably a sucker's bet," owing to the improbability of large-scale cost reductions.
One of the problems Hyman said he has with "defensive medicine" is the definition. Rather than defining it as things doctors do to avoid malpractice torts, he argued, "a better definition of true defensive medicine is things where the marginal cost exceeds the marginal benefit" of the procedure or test. Doctors admit to defensive medicine, he noted, and "some studies have been done ... that suggest that tort reform reduces defensive medicine," but Hyman also pointed to a survey of the literature on the subject. "The findings are mixed and nuanced," he observed.
Hyman said the net result of all the analyses was that "the claim that vast sums are to be saved [by enacting tort reform] is not borne out." He seemed to invoke the late Sen. Edward Everett Dirksen – the Illinois Republican who is credited with the observation "a billion here, a billion there, pretty soon you're talking real money" – by remarking that "it's not that $60 billion is not real money," but it doesn't seem to offer a single fix for healthcare costs and won't finance expansion of coverage, either.
Kathryn Zeiler, PhD, of Georgetown Law, opened her presentation with the observation, "there's a lot to disagree about," but offered the opinion that "the bottom line ... is that tort reforms do not work as well as proponents claim they do."
Zeiler offered a raft of studies on the topic from various types of reforms, from caps on overall damages to caps on punitive damages, but she indicated that the evidence is largely inconclusive. A broader systemic reform, she noted, might include "apologies [and] early offers" to would-be litigious patients, and other reform proposals would craft "a no-fault system," but the evidence behind these "is weak because they're new and untested."
Zeiler said, "In a perfect world, we would perform randomized, controlled trials to get a view" of the impacts of these fixes, but such efforts are unlikely to be undertaken for a number of practical reasons.
Predictably, the results of some of the studies she cited were tough to augur. "One of the most insightful studies," which was penned by a duo going by the names of Currie and McLeod, suggests that caps on non-economic damages do not blunt defensive medicine and in fact may work in the reverse, Zeiler said. "When non-economic damages are imposed," the data start to offer "some weak evidence of an increase in high-risk procedures."
As for whether tort reform has any impact on insurance coverage rates, Zeiler said "here again the evidence is mixed," indicating that at least one study hints that the effect works for price-sensitive buyers of insurance where caps on non-economic damages are imposed, but she said she is aware of no study that demonstrates an effect on insurance premiums when caps are placed on punitive damages.
Mark McCarty, 703-268-5690