The medical profession and the trial bar are natural enemies like the cobra and mongoose, unable to occupy the same space without locking together in mortal combat.
Doctors, understandably, feel under siege by the ubiquitous advertisements of lawyers drumming up malpractice business. (I agree that lawyers have a First Amendment right to advertise but, ugh, talk about degrading the profession.) Meanwhile, personal injury lawyers feel that efforts by hospitals and doctors to cap malpractice awards make legitimate cases too expensive to litigate. This is true, too.
Between these opposing views is a no-man's land fraught with animosity and misunderstanding. But to my immense relief I finally found a reasonable voice in this debate. Bruce Rueben, president of the Florida Hospital Association, says that while doctors pay a lot for malpractice insurance, and it's a big issue for them, there are much more consequential issues in medicine today. As an example, he points to Gov. Rick Scott's plan to cut $1 billion from Medicaid, which includes cutting services to the 39,000 adults who suffer from kidney failure, cancer, AIDS and other financially draining ailments, currently covered under the state's "medically needy" program.
While everyone agrees that spiraling Medicaid costs are a problem that need addressing, Republican politicians would have you believe that tort reform is the magic bullet to cost containment, winning them plaudits and contributions from the medical community.
It's a convenient fallacy. While defensive medicine — where doctors order tests and procedures as a hedge against malpractice suits — undoubtedly adds unnecessary costs, it is not the main driver. That dishonor goes to one overarching factor: bad jobs — something Republicans don't want to talk about.
Rueben says he saw it firsthand. When he lived in Minnesota, employers there such as 3M, IBM and General Mills provided comprehensive health insurance to employees, giving Minnesotans access to primary care and keeping the population healthier. In Florida, businesses are less likely to provide health coverage to their workers or pay them a wage that lets them see a doctor easily. In general, Floridians don't enter the medical system until their conditions have become more advanced and more expensive to treat.
"There's a correlation between having health insurance and being healthy," Rueben says.
This seems obvious. To address costs, more people need coverage and access to preventive care, not less. But the single-minded effort by Republican governors, including Scott, and Republicans in Congress to repeal health reform suggests that they don't get it — or don't care to.
Meanwhile, Republican leaders in the Florida Legislature are working diligently to bar poor people injured by doctors from the courthouse.
Currently, they are debating a measure to cap potential damage awards at levels so low for the poorest people in the state, lawyers couldn't afford to take their cases. For Medicaid patients injured by the negligence of a doctor or hospital, the caps for all damages would be $200,000 per claimant and $300,000 per occurrence — and all damages means medical expenses, living costs, everything. Those with bigger damage claims could then ask the Legislature for the money. Good luck with that.
With malpractice cases easily costing attorneys as much as $100,000 or more to bring, this cap would effectively leave Medicaid patients without any legal recourse. Florida's Republican leaders would rather have taxpayers pay for these patients' lifetime of medical care over the doctor who, say, improperly amputates a healthy leg.
Taxpayers would also lose out on the reimbursements to Medicaid from recoveries in tort lawsuits. In 2009-2010, the state received nearly $19 million in repayments. Kiss that money goodbye in the future.
This just drips with hypocrisy. What happened to the conservative tenet of holding wrongdoers responsible for their actions?
If tort reform is the price for getting doctors and hospitals to stop their single-minded focus on the issue and throw their political support to politicians that care more about universal access, fine. But let it be fair to patients. Maybe some kind of no-fault system, which is something Rueben endorses. Right now, the GOP approach, where the cobra always slays the mongoose, would leave behind too many corpses.