That is a question that is being asked by the Republican Party as part of their objections with the Health Care Reform Bill. More specifically, why was tort reform not a serious consideration when crafting the mammoth piece of legislation? Simply stated, the answer is that tort reform is and was inconsistent with the primary purpose of the reform.
The primary thrust was for consumer/patient protection. Tort reform is primarily protection for the insurance companies. Malpractice insurance premiums and payouts represent approximately 2 percent of the nation’s overall expenditures on health care. When two percent translates into billions of dollars, it is a subject of concern. However, it does very little to affect health insurance premiums or availability to non-medical practitioners. Therefore, tort reform has little to do with insuring that all Americans can afford health care insurance.
Furthermore, that 2 percent would only be reduced by a fraction of that amount. A 10 percent savings rate would change overall spending on malpractice insurance and payouts to 1.8 percent and that savings does not consider medical cost inflation which is significant.
We hear of the alarmingly high jury awards given to plaintiffs in “frivolous” law suits and instantly believe that if those were eliminated the country would save a tremendous amount of money on health care costs. What we don’t hear is that a judge frequently lowers those jury awards and they are further reduced in post trial negotiations, further reducing the award actually received by the plaintiff.
The other argument is for cost savings because doctors would no longer order unnecessary tests in the name of defensive medical care. It is difficult to believe that a competent medical practitioner would order a colonoscopy for a case of pink eye. Speaking from a patient’s perspective, defensive medicine could be a very good thing. Sometimes an apparent gall bladder attack is really a heart attack.
Tort reform with regards to a patient suing a health care provider would limit (a maximum for example of $250K) the amount that a person could receive in punitive (pain and suffering) damages regardless of the severity, the long term disability implications, or the negligence of the health care provider. Those mitigating circumstances have always been considerations in the amount of the awards as considered by a jury. A jury trial is guaranteed to the citizens when they believe they have been injured according to the 7th amendment of the US constitution.
Actual medical cost savings realized by more tort reform will not begin to compensate Americans for severely limiting their constitutional right to seek justice in the courts. Consequently, tort reform as part of the health care reform bill was probably considered ineffective and inappropriate in the goal of insuring that all Americans have access to affordable health care insurance.