Beware of GOP Promises to Fix Healthcare by Limiting Accountability for Errors

Republicans claim that their bill to limit patients’ access to the courts (H.R. 1215) will reduce health care costs. The bill, which would cap damages for medical malpractice claims and otherwise make it more difficult for injured patients to seek redress, has passed the House Judiciary Committee and is expected to receive a vote of the full U.S. House in the coming weeks.

Here are some facts, according to numerous government and industry sources: Liability accounts for no more than one-half of 1 percent of health care costs – and that share is trending downward. The total cost of malpractice payments is lower today than when Bill Clinton was president. And medical liability insurance premiums have fallen for nine straight years.

Because the measurable costs of medical liability are so small, those seeking to blame the legal system for our health care problems invariably claim that far greater costs are exacted by “defensive medicine.” That is the term for tests and procedures that doctors allegedly administer to protect themselves from potential legal claims.

But here, too, the evidence begs to differ. Most academic and government studies have concluded that defensive medicine accounts for a relatively small percentage of health care costs, on the order of 2 percent or less.

A few inquiries have reached wildly different conclusions. Perhaps the most dramatic claims were put forth early in the Obama administration by medical staffing firm Jackson Healthcare, which estimated that defensive medicine costs the United States a staggering $650 billion to $850 billion a year. These numbers, not surprisingly, are the ones most often invoked by Secretary of Health and Human Services Tom Price and Rep. Steve King (R-Iowa), the sponsor of H.R. 1215. They are also plainly absurd, as they equaled about half to two-thirds of all costs for hospital and physician services the year the Jackson Healthcare inquiries were conducted.

The methods that Jackson Healthcare used to arrive at its $850 billion finding would make a junk scientist blush. The company conducted an online survey of doctors that literally defined defensive medicine as “especially common in the United States of America” before it asked would-be respondents for their own views.  Only 2 percent of those invited to take the survey bothered to respond. Jackson Healthcare took great liberties in extrapolating upon those doctors’ answers to arrive at its fanciful claim. (Jackson Healthcare’s separate $650 billion estimate suffered from abundant methodological flaws, as well.)

Setting aside the results of studies or surveys, the GOP’s theories on medical liability already have been tested – and disproven – in the real world. For instance, Texas in 2003 imposed some of the strictest medical liability limits in the country. Since then, medical malpractice litigation in the state has plummeted by more than two-thirds. That’s been great for doctors, hospitals and insurance companies. But the state’s health care costs – the part that matters to consumers – have risen faster than the national average. After Public Citizen and others reported these results, supporters of the law denied (falsely) that they ever promised it would lower costs. Policy makers in Washington would be wise to seek counsel from their friends in Texas.

Those seeking to change the law to limit doctors’ liability often stake their case on claims that a high percentage of cases are “frivolous” or represent “lawsuit abuse.” But numerous respected studies over the past 20 years suggest avoidable medical errors kill anywhere from 44,000 to 400,000 people a year. These numbers dwarf the number of people who receive malpractice payments, and illustrate that the real issue surrounding medical malpractice is the prevalence of avoidable errors that prompt litigation, not the litigation, itself.

Contrary to insinuations that medical malpractice lawsuits are largely schemes to exact a ransom over phantom harms, more than 60 percent of payments compensate for quadriplegia, brain damage, the need for lifelong care, permanent injuries or death, according to government records. Creating barriers to the courthouse would only add to these victims’ suffering and force the public to bear a greater share of victims’ future medical costs.

If GOP leaders were truly concerned with their constituents’ bests interests, they would seek solutions to the epidemic of tragedies due to avoidable health care errors instead of shielding providers from facing accountability for their mistakes.