Caps undermine accountability and don’t deliver cost savings.

GTLA member and Communications Committee Chairman Andy Childers wrote the following piece appearing in the AJC today:

Caps undermine accountability and don’t deliver cost savings.

By C. Andrew Childers

We’ve been told for so long that lawsuits and large jury verdicts are the reason for our excessive health care costs that, despite the absence of any factual basis for such an allegation, some still think it’s true.

Supporters of so-called tort reform claim that the threat of lawsuits forces doctors to order unnecessary or excessive tests and procedures to protect themselves — a phenomenon they call “defensive medicine.”

In reality, both the Congressional Budget Office and the Government Accountability Office under President George W. Bush cast serious doubts as to whether defensive medicine even exists.

The town of McAllen, Texas, may illustrate this point best, as it is the home of the most expensive health care in the nation. Despite having caps on damages an injured victim may recover, doctors in McAllen still routinely order excessive testing and procedures. They don’t do so out of fear of lawsuits — Texas law already immunizes them.

They do so because the fee-for-service structure set up by the health insurance industry actually encourages doctors to order them. The more tests and procedures doctors perform, the more they get paid. After Texas capped damages, allowing negligent doctors to harm patients without the fear of lawsuits, the number of medical malpractice complaints to the Texas State Medical Board actually rose from 2,942 to 6,000 in just one year.

During the debate over reforming our health care system, tort reform — and more specifically, caps on damages a victim may recover no matter how badly he or she is injured — has been slyly added to the mix by the those out to derail health care reform at any cost. The facts prove that placing arbitrary limits on medical negligence verdicts would have little or no impact on the overall costs of health care.

The New England Journal of Medicine published a study concluding that “portraits of a malpractice system that is stricken with frivolous litigation are overblown.” The National Bureau of Economic Research found that tort reform laws do not avert physician shortages nor do they lead to better patient care.

Data from the American Medical Association shows that the number of practicing physicians has actually been increasing across the board for many years. And the number of physicians is significantly higher in states without caps on damages.

In most states, malpractice premiums have continued to go up, while the number of malpractice claims filed has remained stable or has gone down. Less than 1 percent of all civil cases are malpractice cases, and 48 states already have malpractice limits. And yet, the cost of health care continues to skyrocket.

In the U.S., preventable medical errors are the leading cause of accidental death — and the sixth leading cause of death. A study by the Institute of Medicine found that 98,000 Americans die each year as a result of this preventable negligence. Just 6 percent of doctors are responsible for nearly 60 percent of negligent care — and the courts are the only effective means of holding them accountable. But capping damages a victim may recover undermines this accountability.

Our forefathers devised a fair and just way for citizens to seek justice when someone harms them — through a trial before a jury. They didn’t believe that government should predetermine the outcome of a trial by limiting how juries assess individual cases. Taking away patient rights — by capping damages and limiting their 7th Amendment right to trial by jury — does not improve the quality of our health care system or produce cost savings. Health care reform should be about making sure that every American has access to quality, low-cost health care, not about limiting the constitutional rights of innocent patients harmed by preventable medical negligence.

C. Andrew Childers, an attorney with Childers & Schlueter, is a member of the Georgia Trial Lawyers Association.