ACA should have included tort reform

October 10, 2013

A reader writes that without tort reform, the Affordable Care Act will not lower the cost of medical care.

The Affordable Care Act (ACA) does not, unfortunately, provide any of the medical malpractice tort reforms needed to reduce wasteful expenses caused by the practice of defensive medicine. Here are some suggested tort reforms:

Caps on “pain and suffering” awards: Reasonable fixed limits should be placed on  non-economic damages which cannot be measured.  Quantifiable economic damages and medical expenses would still be paid in full without limits to patients who are harmed by medical malpractice. Currently, California and Texas limit non-economic damages to $250,000 and both states have benefited through lower malpractice insurance premiums, a major expense that doctors must pass through to their patients.

Loser pays: When a malpractice plaintiff loses at trial, he or she should have to pay all legal fees and trial expenses incurred by the defendant physician. This system discourages a plaintiff with a weak case from filing a nuisance lawsuit in the hope of being paid to go away. Loser pays is the law in nearly every country with an advanced legal system except the U.S. It prevents a physician from being bankrupted by legal bills even though he or she has won the  malpractice case.

 A jury of our peers:  A jury consisting of nonphysicians cannot decide a highly technical case that they do not have the education or experience to comprehend. Before a malpractice claim goes to trial, its medical validity should be examined by a panel of physicians who practice the same specialty as the defendant.  With the clinical evidence presented to them in the format of a mortality and morbidity inquiry, the merits of a malpractice claim could be determined in a few hours, with greater accuracy and at a lower cost than through a jury trial.

Replace Kathleen Sebelius: As secretary of the U.S. Department of Health and Human Services, Sebelius has been a formidable opponent of tort reform. With no medical education or clinical experience, she is the wrong person to be the cabinet secretary in charge of implementing healthcare reform. A qualified physician should be appointed to replace her as the country’s chief healthcare administrator.

David L. Keller, MD

Redondo Beach, California