Consumer Groups Urge Deficit Reduction Commission To Drop Medical Malpractice Tort Reform Measure

NEW YORK, Nov. 12, 2010 /PRNewswire-USNewswire/ -- The following letter was sent today to Chairs and Members of the National Commission on Fiscal Responsibility and Reform from Alliance for Justice, Center for Justice & Democracy, Center for Medical Consumers, Consumer Watchdog, CT Center for Patient Safety, National Consumers League, Public Citizen, Texas Watch and USAction:

The undersigned consumer and patient safety organizations are writing to express great concern about one section of the National Commission on Fiscal Responsibility and Reform November 2010 Co-Chair's Proposal ("Co-Chair's Proposal").  While the Co-Chair's Proposal may be considered alarming for a number of reasons, this letter addresses one section in particular:

"Pay lawyers less and reduce the cost of defensive medicine

• Enact comprehensive medical malpractice liability reform to cap non-economic and punitive damages and make other changes in tort law."

While we are somewhat hampered in our response due to the vagueness of this paragraph, we assume it is based at least in part on the Congressional Budget Office analysis presented in a 7-page, October 9, 2009 letter to Senator Hatch discussing health care savings from restricting patients' rights.  In this letter, CBO identified a health care cost savings of about 0.5% (with 0.3% attributed to "defensive medicine") if Congress enacted restrictions on the legal rights of patients that are so extreme that no single state in the nation has imposed all of them collectively on patients.  Two of the items – a $250,000 cap on non-economic damages and one-year statute of limitations - have been rejected by the vast majority of states.  The $250,000 cap was also considered and rejected by the U.S. Senate on Motions to Proceed five times between 2003 and 2006. Many states have also declared unconstitutional many of these so-called "tort reforms."

To find this small 0.5% in health care cost savings, CBO looked at a handful of studies, several of which are noted to contradict each other.  Some of these same studies indicate that the cost of achieving such minor savings would be a significant increase in medical errors resulting in injury or death.  One of them suggests that 50,000 more people could die in the next ten years (beyond the 98,000 that already die annually from medical errors) should Congress further limit the legal rights of patients.  Based on these same numbers, another 400,000 or more could be injured (given that one in 10 injured patients die.)  The costs of these errors, which the Institute of Medicine already puts between " $17 billion and $29 billion, of which health care costs represent over one-half," would clearly increase given that the average length of stay per hospitalization is around 4.4 days and the average cost per day in the hospital is around $2,000 per day per injury.  Consider those expenses on top of physician utilization inherent in caring for these new patients, and the cost increase due to more injuries is significant.  

Also completely ignored by both CBO and the Co-Chair's Proposal are direct financial burdens on the government should liability limits be enacted.  Limiting liability ends up shifting the costs away from those who should pay – insurance companies for health care providers who have committed malpractice – onto the government and taxpayer.  Among these additional costs are: