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Medical Liability Reform and Lawyerly Logic

February 11, 2011
10:24 am

As the House Judiciary Committee works toward the passage of medical liability reform legislation, the nation’s trial lawyers – who, of course, have the most to lose if tort reform becomes law – are stressing the counterintuitive argument that states which have enacted liability reform actually have higher healthcare costs.

The trial attorneys’ association, the American Association for Justice, has issued a primer on the issue in which it uses Texas as its prime example of health costs increasing even when strict limits on non-economic damages in medical liability cases have been put into effect.  The AAJ wrote:

“If doctors feel they need to practice “defensively” and order extra tests to avoid the liability, and if all this defensive medicine results in excess health care costs, then states that have already limited liability for doctors through tort reform should experience significantly lower health care costs than states that do not limit liability. Texas has some of the strictest caps in the country, which should eliminate any need to practice “defensively,” thereby lowering health care costs in the state. Yet Texas has some of the highest health care costs in the country. Health care costs in McAllen, Texas, have been growing at a faster rate than any other area in the country, and the cost of health care per patient is currently second highest in the nation.”

I suspect the good men and women of the trial bar are aware that they are freely mingling apples and oranges here.  Texas’ healthcare costs are driven by the fact that the state has one of the nation’s highest uninsured populations, meaning that a comparatively higher percentage of patients are receiving their healthcare through emergency rooms.

And as for the McAllen, Texas reference, the American Association for Justice should read the Atul Gawande article in the New Yorker that documented the McAllen situation, which involves Medicare billing practices and has no linkage to the state’s liability laws.

The medical liability reform is an important one and deserves a serious discussion.  Turning logic on its head to make a point doesn’t contribute to the dialogue.

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