Medical malpractice tort reform equals healthcare reform

I’m a big game theory guy.

I think you can explain the actions of the participants in any structured activity or enterprise by looking at the rules of the game. When you look backwards in time you discover that the “players” almost always made choices that represented rational self-interest. This is especially true in games played using zero sum rules: someone wins only if someone else loses. How the game is set up, what the rules are in the beginning, determines who “plays to win” and who plays “not to lose.” Unfortunately, it is impossible to forecast all of the outcomes of a zero sum game before play starts because it is impossible to forecast who and why each player plays the way they do.

The medical malpractice tort system in the United States is a zero sum game.

There is a significant amount of medical care provided in the U.S. that does not have any significant positive effect on medical outcomes. This care has been broadly termed “unnecessary care” and it is rightly cited as a major contributor to the systemic healthcare economic crisis now facing the U.S. Unnecessary care is also a part of the systemic issue of poor health in the U.S. Every time a patient receives care that does not contribute to better health she is exposed to potential complications of that care, and every dollar spent on unnecessary care is a dollar that won’t be spent on care that delivers better health.

Defensive medicine” is a form of unnecessary care. The best working definition that I know for defensive medicine is medical care of any sort that is ordered or performed solely to prevent either the filing or the loss of a medical malpractice lawsuit. Defensive medicine is typically extra care layered onto reasonable, effective, necessary medical care to provide cover in the event that a bad or unexpected outcome occurs. Various estimates exist regarding the extent of defensive medicine. Anywhere from 15-25% of all medical expenses are said to be some form of defensive medicine. That’s 15-25% of a $2 trillion part of the U.S. economy. $300-500 billion. As I will show below, most of this money does not show up as revenue for the doctor who is playing defense.

How can this be? Why would doctors do this? Well, let’s return to game theory for a moment. The medical malpractice tort system in the United States is a zero sum game. Someone has to lose in order for someone to win. It is a punitive system, one meant to punish the doctor or hospital that committed malpractice. The financial and psychological costs of being sued are so severe for a doctor that nothing is too much to do to prevent being named in a lawsuit (simply receiving a letter stating that a suit is being considered typically results in an increase in malpractice insurance premiums). Doctors therefore play this particular game “not to lose.”

Patients, on the other hand, seemingly have very little to lose under the rules of the American medical tort and medical insurance systems. They are largely insulated from the cost of all of their care by what we call “medical insurance” (which is actually a pre-paid service contract), and a contingency fee system that allows them to bring suit without any personal financial cost, win or lose.

So how does this work? Let’s use an example of a very common medical complaint, and an all too common story of the medical care associated with that complaint. Let’s look at a patient with ma really common type of headache, the migraine headache. Every doctor takes care of patients who complain of headaches. Some, like me, more than others, at least in terms of actually working to diagnose and treat the headache.

A patient, well known to her primary care doctor, comes into the office with a history that is bang-on, straight out out of the textbook for a classic migraine headache (there really is just such a diagnosis). It’s a really severe headache and she’s really suffering. she’s scared, because it hurts so much. Her doctor, a “middle of the bell curve” American PCP, which is to say in the top 5% of PCP’s worldwide, makes the diagnosis. classic migraine. Given the history the likelihood that this is the correct diagnosis is in excess of 99%. Less than one our to every 100 patients who present with this history will have anything other than a classic migraine. Fee for the visit: $75.

But it’s a really bad headache, and headache is one of those things that can turn out really badly if the diagnosis is missed. She had some visual symptoms before the headache, some wavy lines in her vision — classic migraines have a prodrome or a warning sign. It still feels like it’s a classic migraine, but just in case better send her to an ophthalmologist (this is how eye doctors get to be headache doctors). She really has a bad headache so a CT scan can’t hurt, and you never know, so let’s have her see a neurologist, too; they’re really the headache experts.

The CT scan is normal (fee: $500; chances of correct diagnosis now 99.9%). The ophthalmologist finds a normal exam and agrees with the diagnosis (fee $125; 99.91%). The neurologist agrees with the diagnosis, too (fee $250; 99.991%) but she spends her entire professional life treating nothing but the rarest and most complex types of headaches. She can name the next 29 diagnoses on the list of the top 30, as well as numbers 71-100, off the top of her head. She suggests an MRI, “just to be on the safe side; just to be sure.” The MRI will cost $750 and a negative test will increase the accuracy of the diagnosis by another factor of 10 to 99.9991%.

But, why would they do this? Why do the doctors keep ordering tests? And for heaven’s sake, why does the patient keep going for these consultations and these tests? Well, let’s return to the rules of this zero sum game, shall we? The patient is insulated from the cost of all of this medical care by the nature of our “health insurance” system in the U.S. and therefore has no reason to question the suggestions of any of her doctors. The doctors, fearing a lawsuit if they miss even the rarest of problems, have no reason not to order more care. There simply is no amount of care that is enough when you are trying “not to lose” if a little more care might prevent a lawsuit. One should note that the additional care, the defensive medicine, the unnecessary care that is ordered by each physician, does not result in income to that physician; contrary to common belief, defensive medicine does not produce income to the doctor practicing defensively.

How do we begin to change the way we pay for healthcare in the United States? I say we start by changing at least some of the rules. Start by changing the medical malpractice tort “game” from a zero sum game to a non-zero sum game and gradually remove the perceived need for doctors to practice defensive medicine. This will also allow for more complete reporting of medical errors and misadventures, which will in turn allow for a more complete “root cause analysis” of these problems leading to better medical care and better health.

Let doctors stop playing “not to lose.” Medical malpractice tort reform equals healthcare reform.

Darrell White is an ophthalmologist who blogs at Random Thoughts from a Restless Mind.


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  • John

    You’ve displayed why, in many cases, patients and physicians have no motive to say “no” to more care. As you stated, they are playing by the rules of the game. What are your suggestions for rule changes to create motives to say “no” to more care?. What would a non-zero sum game look like?

    • drdarrellwhite

      That’s an awfully big question, John! Very briefly, a non-zero sum game would allow more people who have bad outcomes to recieve compensation. This could be accomplished by using the existing pool of med-,mal insurance premiums (and investments), less contingency fees and legal costs, and applying them to care for/support the injured.

      To improve safety the risk must be removed from reporting errors. A sort of quasi no-fault reporting if you will. This allows a more complete understanding of the frequency of the errors and their consequences, which in turn allows for root-cause analyses of the errors in order to prevent them from occurring.

      If you remove the incentive to play “not to lose” you will see less defensive behavior.

      Probably the topic of a whole ‘nother post, eh?

  • Steve Tuel

    Great post! Any way to estimate how much this costs, or is it buried in all the other data?

    • gzuckier

      Sure; not a super accurate way, but you can always estimate the costs by comparing costs in states which restrict malpractice suits in various ways, versus costs in states which don’t. Adjust for demographics, medical variables, etc. etc. and you find…. that the best estimate is that if you instituted every known restriction on medical malpractice suits, you’d save about 5% max. And in the process, of course, erroneously punish a good many people who really were victims of unmistakably bad medical practice. I don’t know; I’d rather keep the malpractice and not save 5% of my costs, if it’s up to me.

  • Kris Percy MD

    While I am in favor of tort reform nationwide, I question the assumption that it will solve the problem of doctors practicing defensive medicine. We have had effective tort reform in CA for decades, and doctors here still practice defensive medicine. No one wants to be sued, period. I agree that changing the punitive culture in medicine may help doctors to practice more rational medicine, but tort reform like we have in CA, which limits awards and keeps premiums down, while important in keeping doctors practicing here, won’t bring about the cultural change we need.

    • drdarrellwhite

      Ah, Kris, what you have in CA is simply malpractice SETTLEMENT or AWARD reform. It is true that plaintiff’s attorneys will not turn down smaller cases because of a limited upside, but there is still no fundamental reform regarding the kinds of cases that can be brought, and no negative financial recourse to a plaintiff for filing against literally any name on a chart. There is no true reform in place to distinguish between true malpractice (harm due to care that falls below the standard of care) and a bad outcome (harm that results despite care that meets the prevailing standard of care).

      • Matt

        The post is useless unless you specify the “reform” you’re seeking. Reform has traditionally meant damage caps, which has yet to achieve any of your goals.

        • drdarrellwhite

          Matt, the post is a response to the imperative to spend less money on healthcare. As such the post provides a rationale for tort reform as a means to reduce the practice of defensive medicine. No where in this post do I imply that I will offer a proposal for reform, only that true reform would reduce medical care that does not affect medical outcomes, ie. defensive medicine.

          The fact that damage caps, a response to the wholly separate liability insurance crisis, have become routinely associated with “tort reform” does not make them in any way any such thing. Damage caps were designed as a means to reduce awards, thereby reducing malpractice insurance premiums and increasing malpractice insurance availability. That’s not tort reform in any sense of the word.

          True malpractice tort reform IMO must achieve 3 distinct goals. 1) Reduce the filing of non-malpractice claims to effectively zero; 2) Allow the collection of error data in a non-punitive manner so that true error root-cause analyses can be done; and 3) provide financial help for those patients who have an injury from medical care whether or not it was due to malpractice.

          And that, Matt, is the subject of a whole ‘nother post, eh?

    • Ishmael

      Researchers have concluded that within three to five years after the adoption of medical liability reforms, hospital expenditures were reduced by five to nine percent as compared to expenditures in states that did not adopt reforms. The same researchers tested for differences in mortality and complications, and found that these outcomes were similar regardless of whether tort reform was in place. Because the additional spending in states without tort reform was not health-improving, this further supports their conclusion that it was defensive.

      Admittedly, five to nine percent does not represent a cultural change, but it’s not a paltry sum either. Physicians should continue to insist on proven reforms that have stabilized the liability climates in California, Texas and other states, while calling for more testing and evaluation of proposed reforms such as health courts, safe harbors for the practice of evidence-based medicine, and early disclosure and compensation models to determine if these innovations will ease physicians’ mistrust of legal system and significantly reduce defensive medicine.

      • drdarrellwhite

        Very nice, Ishmael. Thanks.

      • Matt

        “Researchers have concluded that within three to five years after the adoption of medical liability reforms, hospital expenditures were reduced by five to nine percent as compared to expenditures in states that did not adopt reforms.”

        Can you point us to that study?

        “. Physicians should continue to insist on proven reforms that have stabilized the liability climates in California, Texas and other states”

        What does the phrase “stabilized the liability climates” mean? Sounds like a euphemism for “our insurers can always make money.”

        Take California for example, they had to enact insurance reform after tort reform and the insurers were forced to return millions to physicians.

        The insurance market rises and falls in states with and without caps based on the economy. Always has, always will, because that’s how insurance works.

        Those who want to legislate the risk out of the risk business at the expense of Constitutional rights are pretty misguided. That physicians would be the face for the insurers is odd, given how poorly the insurance industry traditionally treats physicians.

  • Brian York

    Given that there are 16 million Americans in HDHPs and 50 million uninsured, this is also an interesting question for paying health care consumers to ponder as well. Where the line is drawn is more than a question of legal liability, and, after all, medicine is meant to be in the interest of the patient.

    The assertion that the patient is insulated from the cost is not necessarily always the case.

    • drdarrellwhite

      Brian, I agree that the patient is not always insulated from the cost, only that the vast majority of patients who have what we in America call ‘health insurance’ are insulated from the cost. How much did you pay for your last doctor visit? What was the ‘price’ of the visit? What was the total amount of money paid to the doctor’s office?

      The only ‘insured’ patients in the U.S. who can answer those questions are patients with high deductible plans who have yet to meet the deductible; to everyone else it’s just a co-pay, and they are insulated from the rest of the cost.

  • Marc Gorayeb, MD

    Great analysis. Furthermore, limiting malpractice awards is insufficient, because it does not address a critical issue: that there has to be a finding of negligence (explicit or implied by settlement) for the plaintiff to get any award. Although negligent practice does occur, it is not at the frequency now implied by the massive industry that has developed around med-mal litigation. A finding of negligence is frequently based on contrary opinions by dueling experts paid very handsomely for the positions they take. It doesn’t have to be that way in our legal system.

  • paul

    you just guaranteed yourself 20+ comments just by picking this subject.

    let me answer on behalf of the lawyers.
    there is no such thing as defensive medicine. stop making so many mistakes and you will not be sued.

    • drdarrellwhite

      Defensive medicine is a fact of healthcare economic life in the U.S. I’m afraid. It represents as I said some very large percentage of medical expenditures, and it is in addition to “customer -response” care such as ordering a test to mollify a patient.

      Malpractice occurs. People harmed by malpractice should be compensated. Medical errors occur, most of which do not cause harm, thankfully. The percentage of malpractice lawsuits filed that represent true malpractice is substantially the minority. People get sick. The disease sometimes wins. People die. When these facts are in conflict with an expectation this is not de facto malpractice.

      There is nothing to prevent lawsuits when this is the case. This should be fixed.

    • Ishmael

      Enhancing quality in medicine and restoring fairness to the civil justice system are not mutually exclusive goals. America’s patients deserve both.

      While physicians have embraced real reform to prevent medical errors, trial lawyers continue to defend a medical liability system that has failed patients by inviting abuse and inefficiency.

      In addition to denying the existence of defensive medicine, lawyers deny the existence of meritless claims. Yet, the system is choked with claims that lack merit, as nearly two-thirds of claims are typically dropped or dismissed. According to a Harvard study, 40 percent of claims lack any evidence of either a medical error or patient injury.

      Excess litigation has failed to improve patient care and is taking a heavy toll on our health care system. The extra precautionary measures physicians take to avoid being sued are estimated to cost $70-$126 billion per year, according to the Department of Health and Human Services.

      Transforming the existing culture of blame and punishment that suppresses information into a culture of safety that focuses on openness and information sharing will improve health care, prevent adverse outcomes, and help reduce the growth of heath care costs.

      • Matt

        No one is denying that defensive medicine exists, ishmael. They’re denying that one, it can be defined – after all this physician’s necessary test is that physician’s wasteful one. And they’re denying that tort reform will reduce it.

        Physicians love to tout Texas as a tort reform “miracle”, but 8 years after enactment of it, Texas is still in the same place in terms of physicians per capita, and healthcare costs there are the same. So where’s the miracle for healthcare?

        ” Yet, the system is choked with claims that lack merit, as nearly two-thirds of claims are typically dropped or dismissed.”

        What system? The insurance system?

        “While physicians have embraced real reform to prevent medical errors”


        • Ishmael

          No one is denying that defensive medicine exists, Matt? Better check with Paul, answering on behalf of the lawyers and parroting the trial lawyers’ association line, “there is no such thing as defensive medicine.”

          Regulating health care with excessive lawsuits failed to improve patient care. That’s why the AMA successfully spearheaded federal legislation to truly expand broad patient safety reforms nationwide. The AMA supported legislation passed both the House and Senate with overwhelming majorities, and was signed directly by President Bush.

          What have lawyers done to address the legal system’s inherent incentives for abuse, or stem their tort-happy colleagues who file cases without evidence of malpractice and contribute to the fact that most lawsuits against physicians are thrown out before ever reaching a court room? Why is the trial bar the biggest obstacle to affordable and accessible health care?

          • Matt

            “Regulating health care with excessive lawsuits failed to improve patient care.”

            As long as you believe that’s the point of a lawsuit, you’re right, it will fail. That’s not the job of a lawsuit nor has it ever been.

            “That’s why the AMA successfully spearheaded federal legislation to truly expand broad patient safety reforms nationwide. ”

            Such as? You tend to make sweeping claims without citing what you’re talking about.

            “Why is the trial bar the biggest obstacle to affordable and accessible health care?”

            The biggest obstacle to affordable healthcare is the third party payment system.

            As to “accessible” – how do you mean? How many physicians per capita do we all get if we do what you want? “Accessible” is a nice word that sounds meaningful, but really isn’t unless you specifically define it. If you look at physicians per capita, it turns out that counties with a lot of rich people have plenty, and counties with a lot of poor people have few. Regardless of tort “reform”. So tell me, how do you PROMISE or GUARANTEE us that will change if we enact your “reforms”?

            Most lawsuits against physicians are “thrown out” before reaching the courtroom? Do you mean settled? Dismissed voluntarily? Or are you saying lost on summary judgment? Or are you just using some phrase when you’re not sure what exactly you mean?

      • Matt

        “Excess litigation has failed to improve patient care and is taking a heavy toll on our health care system”

        Litigation isn’t supposed to improve patient care. It’s supposed to make the responsible party bear the cost of the damages.

        And if you’re so against litigation, where’s your reform proposal to keep physicians from filing class actions against health insurers that result in billions in settlements? Talk about a “heavy toll on our healthcare system”. Somehow, physicians don’t want to limit their own ability to be made whole, but they’re all for limiting that of the patients’.

        • Ishmael

          If the purpose of litigation is “to make the responsible party bear the cost of the damages,” why does it do such a poor job at it?

          A Harvard study showed that in terms of compensation for medical errors, the system gets it
          wrong too many times. Twenty-seven percent of claims involving errors were uncompensated and, on the flip side, the same percentage of compensated claims did not involve an error.

          It’s clear the legal sysytem has failed as a means to fairly compensate for medical errors, but is extremely lucrative for lawyers who can pad their earning with lottery-sized payouts for the immeasurable concepts of pain and suffering.

          Physicians class actions against insurers have an important distinction – they are grounded in evidence – unlike 40 percent of medical liability cases that brush aside fairness and are filled without any evidence of either a medical error or patient injury.

          • Matt

            Now we’re getting somewhere!

            “A Harvard study showed that in terms of compensation for medical errors, the system gets it
            wrong too many times.”

            Actually, the study concluded just the opposite. From the authors: ” nearly 80% of the administrative costs of the malpractice system are tied to resolving claims that have merit.”. . . ““Overall, the malpractice system appears to be getting it right about three quarters of the time,” said Studdert. “That’s far from a perfect record, but it’s not bad, especially considering that questions of error and negligence can be complex.”

            Now, which of your proposals are designed to improve the flaws that study identified?

            “It’s clear the legal sysytem has failed as a means to fairly compensate for medical errors, but is extremely lucrative for lawyers who can pad their earning with lottery-sized payouts for the immeasurable concepts of pain and suffering.”

            Again, point me to the proposal that you champion to get more people injured by malpractice paid faster? And what is “extremely lucrative”? What does the average plaintiff’s lawyer in this area make, and how much do you believe they should? Why are pain and suffering immeasurable – isn’t tort reform about measuring it to a certain dollar value?

            “Physicians class actions against insurers have an important distinction – they are grounded in evidence.”

            They are? That’s not what the defendants say. How did you come to that conclusion? Because you are or support physicians?

            “unlike 40 percent of medical liability cases that brush aside fairness and are filled without any evidence of either a medical error or patient injury.”

            This is just foolish. No one files a medical malpractice lawsuit without an injury.

          • Ishmael

            So the health system must be right 100% of the time, but it’s okay for legal system to slip-up almost 30% of the time.

            Why do you need doctors to propose reforms? Where’s the professional obligation of lawyers to step-up and fix the system? I know justice is blind, but I didn’t know the extent it had been blinded by self-interest.

            The fact that 40% of medical malpractice cases are groundless comes from the same Harvard study. Here’s a link that might refresh your memory:


            You really should come to these discussions with a better grasp of the sources.

  • paul

    i will also echo comments above that tort reform alone will not eliminate defensive medicine. this is because defensive medicine (or more broadly, the ordering of unnecessary tests) is not practiced solely to avoid lawsuits (which in turn is why those whose agenda benefit from minimizing defensive medicine can do so- by attributing the ordering of the test to the many other reasons we order it).

    sometimes the test is ordered to placate the patient who believes more is better and cannot be convinced otherwise. sometimes it is ordered because the doc gets paid to order more tests. often (possibly most often of all) it is ordered because we genuinely do not want the patient to suffer a bad outcome as a result of a missed diagnosis.

    the only way to make a significant dent in the unnecessary testing problem is to BOTH withold payment for the test prospectively identified as unnecessary, AND provide legal immunity for the same test later retrospectively identified as necessary. can’t have one without the other.

    that and to change the culture of “more is better”… but that is possibly even harder to do.

  • drdarrellwhite


    Thank you for posting my thoughts.


  • Christie B

    An interesting post – however, I would argue that more could be done by flipping the title around to Health Care Reform Equals Medical Malpractice Tort Reform. Some diagnoses and outcomes are simply so costly that families are unable to cope with them without significant support. Since sufficient support is generally not provided through social programs and catastrophic diagnoses often result in both the loss of employment (and employer provided health insurance) and disqualify one for affordable individual/family coverage, families are under significant pressure to bring suit to provide for their needs. Ishmael noted that malpractice reforms have been demonstrated to save five to nine percent; perhaps we could save more by providing care for sick people in a less capricious way.

    • Peter Westre RN

      Exactly. The other reality is that until we address economic inequality we will never reduce health disparities that lead to excessive usage of the health care system.

    • imdoc

      Another way to say this is that, considering that the tort system results in significant costs to the system, we are willfully championing the rights to the legal process without any limitations, and in so doing, limiting access of some patients to what many would consider adequate medical care.
      In a time when the discussion is ‘limits’, there has to be some give and take.

      • Matt

        Except the system doesn’t result in “significant costs” to the system. You can argue defensive medicine, a slippery thing to define, but every time we’ve tried the “reform” that insurance lobbyists and physicians promise will reduce it, it doesn’t. So clearly defensive medicine, to the extent you can identify it specifically, isn’t affected by “tort reform”.

  • srand

    Thank you for this article! I have become fascinated by unnecessary care recently – in part because I am one of the HDHP people who have not yet met my deductible – and this gave me some very useful insight into the specifics of defensive care that I had been missing.

  • Peter Westre RN

    I think the real source of reform should be immunization of providers from torts who use evidence based practice guidelines as the core of their practice for the treatment of illnesses.

    Looking for horses rather than zebras is still a good guideline for assessing and developing treatments.

  • Matt

    Dr Miller,

    Then what DO you propose? And #2 on your list doesn’t require any legislation. The insurers already have this data? If you had no proposal, what was the point? Is there someone out there who doesn’t wish healthcare costs were lower?

  • Charles A. Pilcher MD FACEP

    Malpractice reform DOES equal healthcare reform, and the latter must precede the former. The “elephant in the room” – and you can hear it bellowing beneath the surface of every conversation at every gathering of healthcare professionals – is that we really do provide far too much care to far too few people at far too great a cost. Other countries have found ways to provide equitable quality healthcare. Why can’t we?

    • gzuckier

      Beating my personal moribund equine, I point out that when somebody’s stuck with a mammoth medical bill they can’t cover, with or without insurance, they will of course seek a source of money; and since malpractice suits are not only easier than robbing a bank but easier to rationalize ethically, what does anyone expect? This in addition to any valid suits. Consider the textbook example; the child born with severe defects who will require lifelong care. A truly crippling expense which insurance will flee from as soon as legally possible, the cause of which is often foggy enough that it can be blamed on the doctor without too much deliberate fraud, any remaining being soaked up in “well, the malpractice insurance will pay it, so really nobody’s hurt”. What’s the alternative? Sell the house, take on a second job, send the wife to work, cash in the other kids’ college funds, and resign yourself to a life of scrimping to get by with any relatively minor financial crisis looming like total disaster? Have your family’s whole future go down the tubes for something that under no circumstances could be any more your fault than the doctor’s (or the insurer’s for that matter)? While whole law school graduating classes are presenting you with their cards and the assurance that you have been injured but they will take care of you and they won’t take any money unless you win the case?

      Compare to Canada, on the other hand; all such medical costs are covered by the universal healthcare, no matter whether the cause is malpractice or act of God, so there goes that motivation. With that source of income for the legal profession gone, it was pretty easy to pass a law barring malpractice suits for pain and suffering and/or punitive damages, so the only suits that can be brought are for actual financial damages, e.g. lost income or similar; which are usually small enough and/or clearcut enough that suits are either not worth bringing or are settled without trial. Result, malpractice is not a big feature of Canadian medicine or law.

      To adopt this solution, healthcare reform must precede malpractice reform, as you suggest.

  • drdarrellwhite


    Did you read the post? In it I CLEARLY state that true tort reform, not simply reforming payment for tort, would reduce the use of “defensive medicine” which accounts for 10-25% (depending on who you read) of ALL health expenditures in the U.S. You are quoting the % of health care expenses attributable to malpractice claims.

    $200-500 Billion buys a whole lot of healthcare.

  • Charles A. Pilcher MD FACEP

    Best book I ever read on the subject is “The Healing of America: A Global Quest for Better, Cheaper, and Fairer Health Care” by T. R. Reid
    The surprising thing is that I was advised to read it by a hospital CEO.

    • Charles A. Pilcher MD FACEP

      Actually, I do NOT think that malpractice adds significantly to health care costs, and am not sure how you read that into my post. But the over-ordering of tests and the over-prescribing of treatments DOES, no matter WHAT drives that..

  • Anna Gardiner

    Please refer one medical malpractice attorney to me that won’t require a minimum of $25,000+ upfront to cover “administrative costs” for contingency cases. (Rule 1.8(e) of the Virginia Rules of Professional Responsibility for Attorneys requires plaintiffs to pay the expenses of the case, win or lose.) Do you really believe attorneys can or would pay for all expert witnesses and court costs, etc. upfront out of pocket on contingency cases and not go out of business? If you do, I dare you to find me one because I am the victim of medical error. I lost everything I worked my entire life for and am now reliant on government subsidies and Medicare way too early. The malpractice is ongoing. I have an intussusception and finding a colorectal surgeon who will do anything other than cut out your colon and give you a bag regardless of your ailment is like finding a needle in a haystack. Because this went undiagnosed for years, the problem snowballed and manifested as all kinds of health maladies that befuddled dozens of physicians who decided their best defensive medicine was to find something wrong in another specialist’s field. I became a hot potato.

  • Dorothy Green

    Wow, so much discussion about so little. The 2 most important comments I read were from:

    1.Peter Westre, RN regarding the role of Practice Guidelines in tort reform. Guidelines have been around for awhile now for many illnesses and should be an important key to reform not only to protect a practitioner from being sued if he or she followed practice guidelines but also to protect us all from unnecessary costs. Shouldn’t practitioners have to explain to those who pay the bills why something was ordered if it was not in the guidelines? Patients need to know about them as well.

    2. Charles Piltcher MD on T. R. Reid’s book the Healing of America. He also had a documentary on NPR but they removed some of his important messages so he split from them and wrote the book. One was – we shouldn’t have for-profit basic insurance companies.

    I agree it should be read by hospital CEOs, however, most are profit motivated and I can’t imagine them reading these sensible ideas on healthcare. Better, it should be read by all of us in the US because we are some part of our budget breaking healthcare (non-system still). Even Medicare patients. I read it as part of an adult ed course (mostly > 65) with engineers, a libertarian lawyer and other academics. Everyone agreed by the end of the course that we need not- for- profit basic health care and other countries provided pretty good care to their citizens without extraordinary costs.

    He clearly shows that while they have problems none would use the US as a model. For example, our craziness to them in many regards, one of them being this tort reform stuff and the most important not having coverage for all citizens.

    Please don’t let this be reason to pull out the failings of other high income countries healthcare as a way to justify ours. There are a few things we may do better but we can still have them and and healthcare for all with current and additional reform measures. We pay more for less overall – the next highest is Switzerland 25% below the US in per/capita cost. They outlawed for-profit for basic care but have luxurious accommodates for those who wish to buy extra insurance, world reknown doctors and coverage for all. The US leads in obesity, highest overall cost per/capita, highest infant mortality

    I just wanted to share with you a preview of the book and some data I pulled together for my adult ed report. it is an easy and enlightening read.

  • Mamie

    To start with, a non-zero-sum game would allow physicians to counter-sue for frivolous lawsuits, potentially naming both the patient and tort lawyer as defendents. Damages? These could include the physician’s lost revenue, legal fees, ensuing increases in his/her medical malpractice premiums, and libel damages–all of which are monies outside of the health care system. But don’t expect counter-suits to become legal any time soon: the vast majority of our lawmakers are attorneys and have no interest in health care reform (or fairness, for that matter).

  • Cilla Mitchell

    Tort Reform is a legal weapon used in Texas against Texans.

    When there are laws on the books preventing the common man from getting accountability, then there is no telling what might happen.

    Providing a link to a video showing how Tort Reform is working out in Texas, or not.

    Or, just Google Cleveland Mark Mitchell, then click on youtube.

    Thank you for your time,

    Cilla Mitchell

    A Texas nurse and vet

  • WokenUP

    Frivolous malpractice lawsuits and excessive jury awards are not significantly adding to health care costs. Furthermore, reducing the payout for compensating medical wrongs does absolutely nothing to curb the incidence rate of those wrongs.

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