McBride and tort reform

In the Palm Beach Post, the positions of McBride and Bush on the issue of "tort reform" were characterized in terms of their donors:

Doctors, nursing homes and insurance companies have poured more than $3 million into Republican coffers and given barely $500,000 to Democrats, an analysis of campaign contributions shows. [...] Medical groups, nursing homes, insurance companies and other health care interests have funneled $2.2 million to the Republican Party of Florida through Sept. 5, the last reporting date for political parties until after the election. [...] They gave an additional $949,841 to Bush's reelection campaign as of Oct. 10.

At issue is the spiraling cost of medical malpractice insurance that is plaguing high-risk doctors, squeezing profits and performance at nursing homes, and threatening care at some hospitals. [...] Gov. Jeb Bush has sided with the health care groups by calling for a $250,000 cap on what injured patients can receive in medical malpractice lawsuits as compensation for pain and suffering.

...

Lawyers have donated $2.48 million to the Democrats and almost $930,000 to the GOP. [...] Lawyers argue that the insurance industry is using lawsuits as the scapegoat for its financial foul-ups, which include giant losses in the stock market and failures to carefully monitor bad doctors and manage costs.

An accompanying editorial suggests that public policy should not be determined by the highest bidder. The reason for all the money is revealed:

A governor-appointed task force studying the problem is to make its report by Jan. 31. The new Legislature, fattened by campaign donations, then is supposed to review objectively what no side wants reviewed objectively. Presuming the task force does as good a job as the one that studied long-term care, the Legislature then will have to ignore pressure to return the investment and likely make decisions that annoy all sides.

The editorial cites the Governor's Commission Report on long term care as a success, but what has been done about the recommendations by the Legislature? Nothing. It is fantasy to suggest that the political process is not and has not always been determined by the highest bidder. The Legislature, of all people, are craven opportunists, wedded to their monetary supporters. After all, they are chiefly lawyers. (I'm sorry. That was too easy.)

But seriously, let's examine the candidates' positions. In his election campaign of 1998, Bush was backed by many Florida lawyers after persuading them that limiting lawsuits was not on his agenda. Now, when speaking to doctors, insurance companies, hospitals and nursing home operators, Bush points out that he signed legislation limiting lawsuits against businesses and limiting the legal liability of nursing home chains.

These laws were not proposed by Bush nor pushed by the Republicans in the Legislature. The laws were the product of the Democrat-controlled House (trial lawyers, chiefly) in response to crises in these two industries related to lawsuits, excessive verdicts, and rising insurance rates. The Legislature was forced to do something as the "golden goose" was about to be killed. These half-measures preserved the profits of the tort industry at a reduced level under certain conditions. They are a sham and will be shown so, just as the last set of "malpractice reform" measures passed in response to the "crisis" of the 1980's have failed to restrain costs and verdicts.

Bush now says he is for medical malpractice tort reform, but he has done nothing about this problem for four years.

Bill McBride states that he is against tort reform as proposed by the FMA ($250,000 cap on non-economic damages, elimination of joint-and-several liability, and disclosure of collateral sources). So is the Legislature, and these proposals have no chance of being passed in their current form. It is questionable, as pointed out here, that these measures will have any long-term effect anyway.

Proposals by the trial attorneys are being promoted to help discipline bad doctors and "clean up" alleged rampant malpractice in the medical system. These include opening the Federal "bad doctor" database, allowing disclosure of (currently privileged) hospital peer-review and other committee proceedings, and the "three strikes and you're out" provision to lift the licenses of doctors who have had adverse mapractice judgements. These are bargaining chips and are unlikely to be passed in their current form, as well. It is likely that the first two will be passed into law in some form in the next legislature, regardless of who wins the governors race.

I expect more useless wrangling and inadequate reforms regardless of the winner. I have tried to tell my colleagues that the decision cannot be made on such a narrow essentially selfish basis, but on which candidate will provide the best outcome for all the citizens of Florida. Accordingly, I'm holding my nose and supporting McBride.

The solution to the malpratice problem? A total replacement of the current tort system with a system based on non-adversarial indemnification and risk-management; a system of independent expert panels that review potential malpractice cases, choose the ones with merit, and rapidly arbitrate, deciding the case, the award, and how to handle incompetent physicians; and, specialty boards and state medical review boards that place patient care above hospitals' and physicians' interests is a start.

Posted by Gordon at October 22, 2002 07:05 PM | E-mail Author | Back to main page