In his address, President Obama admitted that “it makes more sense to build on what works and fix what doesn’t.” The president also admitted that many people insist that “reforming our medical malpractice laws can bring down the cost of health care.” Finally, he said “I have talked to enough doctors to know that defensive medicine may be contributing to unnecessary costs.”


Published 10/1/2009

Let’s get real about tort reform

Although you may not want to, you have to give the guy credit. When President Barack Obama addressed the joint session of Congress on healthcare reform in September, he certainly did a good job of outlining what he wanted to see in a proposal. Ever since then, people have been talking about one aspect or another of it. The issue I want to talk about is tort reform.

Joseph D. Zuckerman, MD

Well, at least it appears that he is listening, but I am not at all sure he is hearing or understanding. Every physician I know believes that the current medical liability tort system doesn’t work, that reforming our current laws could help reduce the cost of health care, and that the practice of defensive medicine does add costs.

When President Obama called for “demonstration projects in individual states to test these issues,” it becomes easy for us to conclude that even if he is listening, he doesn’t really believe what he’s heard and he wants proof.

The funny thing is, the proof is there. It’s in California, where the landmark Medical Injury Compensation Reform Act (MICRA) of 1975 has meant that increases in physician premiums for medical liability coverage are 75 percent lower than for the rest of the country and injured patients in California not only receive more of the award (as funds are redistributed from attorneys to patients) but also receive the funds faster than patients in other states.

The proof is also in Texas, where a state constitutional amendment and extensive tort reform have not only increased the number of physicians practicing in the state but also reduced the number of claims filed against physicians.

The president could also look to Ohio for proof that tort reform works. Tort reform measures there increased the number of companies offering coverage to physicians, reduced premium increases for physicians, and held attorneys liable for costs in frivolous lawsuits.

In short, over the past 35 years, states that have taken steps to reforming their approach to medical liability present a living laboratory of demonstration projects—and the results are always similar.

For this reason, the AAOS recently revised its position statement on medical liability reform to state that “no federal legislation pertaining to liability reform should include provisions that would undermine effective state tort reform provisions or the ability of states to enact tort reform tailored to local needs.” The position statement, which will be presented to the Board of Directors for approval at its September meeting, also identifies the following core principles for comprehensive medical liability reform:

  • Patients who are injured by negligent care should be compensated promptly, fairly, equitably, and reliably.
  • Reform efforts should encourage early and free dialogue and advance the primacy of empathic patient-physician relationships.
  • Mechanisms for dispute resolution should help minimize costs, reduce adversarial relationships, and foster equity.
  • Voluntary reporting of unanticipated occurrences should be encouraged through the establishment of confidentiality laws and firewalls between discipline and voluntary reporting systems.
  • Eliminating or minimizing factors that promote the practice of defensive medicine will result in reduced healthcare costs and increased patient access.

If the president needs demonstration projects to prove that tort reform increases access, reduces costs, and benefits both patients and physicians, he need look no farther than states like California, Texas, and Ohio to see what works. It is really time for him to start hearing and believing and not just listening.

Speaking of what works…
Kudos to one of the hardest-working orthopaedic societies on its 25th Anniversary—the Orthopaedic Trauma Association (OTA). Since its formation as a separate organization in 1984, the OTA has been at the forefront of a number of issues. Their efforts have been key in increasing Congressional funding for musculoskeletal research through the Orthopaedic Extremity Trauma Research Program. In addition, their support of the unity efforts in orthopaedics have been exemplary—from cobranding courses, symposia, and enduring education materials with the Academy to participating in the public relations program and cosponsoring special programs such as the Extremity War Injuries series. I look forward to honoring them at the 2010 Annual Meeting.