I recently received a copy of AARP Alaska Legislative Priorities, dated February 21, 2005. I think the organization has correctly characterized the latest attempt at “tort reform” here in Alaska:

SB 67, authored by Senator Ralph Seekins, will reduce the amount of “pain and suffering” awards from the current maximum of $400,000 to $250,000. The author argues that medical costs are high because of medical malpractice lawsuits. AARP opposes this bill because awards are relatively rare and generally imposed in only the most egregious cases and are not a significant factor in malpractice premium problems. We are encouraging the author to avoid the “lawyer/doctor” debate and instead focus on how we can reduce medical errors. The Institute of Medicine has several recommendations for reducing medical errors that harm people. AARP feels that avoiding errors is much more important than focusing on legal negligence. The IOM has prepared several background pieces on medical error reduction which should be the basis for this bill. We oppose SB 67 unless it can be amended to focus on medical error reduction.

the real problem is quality of medical care

Let’s take a closer look at the quality of medical care issue, and its relationship to tort reform efforts. The most comprehensive study of medical malpractice to date is the Harvard Medical Practice Study, completed in the late 1980s. Researchers selected a random sample of approximately 31,000 records from fifty-one hospitals in the state of New York in the year 1984. Teams of physicians evaluated these records to uncover injuries caused by medical negligence. The Harvard Study revealed a medical negligence rate of 10 in every 1,000 hospitalizations. The injuries included in the study were at least serious enough to result in a longer hospital stay, disability upon discharge, or death. A more recent study of malpractice in the hospitals of Utah and Colorado resulted in findings very similar to those of the Harvard study.

Going a step further, researchers linked the occurrence of medical negligence that they found, with legal suits alleging malpractice. The researchers found that 98 percent of the victims of medical negligence never sued the hospitals, the physicians, nor any other party who may have been medically negligent! Further, the Harvard researchers found that only half of the victims of documented medical negligence, who did file a claim, ever received any compensation. To quote conclusions drawn by the researchers, “…the civil justice system only infrequently compensates injured patients and rarely identifies and holds health care providers accountable for substandard medical care…”

Looking at the situation nationwide, according to the 1999 Institute of Medicine report, To Err is Human, up to 98,000 patients die in hospitals each year due to preventable medical errors. That’s 268 per day. Clearly, the best way to reduce the number of medical malpractice claims made in this country is to maximize patient safety, not eliminate patient rights.

medical malpractice liability insurance less than two percent of nation’s health bill

Finally, let’s take a peek at the conclusions of Limiting Tort Liability for Medical Malpractice, a study conducted last year by the Congressional Budget Office. Here is what the CBO researchers found:

Evidence from the states indicates that premiums for malpractice insurance are lower when tort liability is restricted than they would be otherwise. But even large savings in premiums can have only a small direct impact on health care spending–private or governmental–because malpractice costs account for less than 2 percent of that spending. Advocates or opponents cite other possible effects of limiting tort liability, such as reducing the extent to which physicians practice “defensive medicine” by conducting excessive procedures; preventing widespread problems of access to health care; or conversely, increasing medical injuries. However, evidence for those other effects is weak or inconclusive.

facts matter

In light of these facts—and my motto continues to be “facts matter”—tort reform as it is expressed in Alaska’s Senate Bill 67, would not help health care provider costs much at all, would seriously restrict the civil rights of Alaskan families, would ignore the question of the quality of care, and cannot lower the cost of health care in Alaska. On the other hand, the insurance industry might save some money. Is this good public policy?

Lawrence D. Weiss
President of the Board
Alaska Center for Public Policy