According to a study by Johns Hopkins Medicine, the third leading cause of death in the United States is medical errors. Could it be that “tort reform” is to blame?

The analysis, published in the BMJ, shows that medical errors claim 251,000 lives every year, more than causes such as respiratory disease, accidents, stroke, or Alzheimer’s. People are dying from the care they receive, rather than the disease for which they are seeking care. Why is the quality of medical care in the United States so bad? In a world where medical professionals are held accountable for their actions, you would think that the costs of providing poor quality care would provide adequate incentives to ensure high quality care. The thing is, as a result of heavy lobbying from the cash-cows in the medical and pharmaceutical industry, “tort reform” has limited the penalties medical professionals may face for destroying lives by providing negligent medical care.

Caps on damages in medical malpractice are one of the hallmarks of the “tort reform.” The idea is that when a patient sues a physician or other medical provider for screwing up, there is a limit on the amount of damages the patient can claim. In Missouri the cap for wrongful death damages in a medical malpractice case is just $350,000, a cap that was upheld by the Missouri Supreme Court just a few weeks ago in Dodson v. Ferrara.

Tort “reformers” argue that there is an “epidemic” of medical negligence liability that drives up costs for everyone (but especially for doctors purchasing medical liability insurance). Moreover, they argue, doctors facing the possibility of full liability for their actions will practice “defensive medicine,” by ordering unnecessary tests and conducting unnecessary procedures. There is no evidence of this—in fact, in places where “tort reform” has taken hold, costs have risen, not fallen. And this makes sense—holding doctors accountable for their actions should improve the quality of care, lowering costs, including malpractice claims. And why would doctors fearing liability for errors order tests that fail to increase the quality of care? Indeed, empirical evidence shows that this argument is smoke and mirrors—malpractice liability does not increase the use of irrelevant treatment.

You would think that a nationwide epidemic of medical malpractice would have been noticed by now. The problem is, the Centers for Disease Control and Prevention does not even measure medical negligence in its annual list reporting the top causes of death. When the CDC records causes of death, it does so based on death certificate data, but this system does not take into account things like communications breakdowns, diagnostic errors and poor judgment. Far too often, according to the Johns Hopkins study authors, these factors lead to mistakes that cost lives.

Dr. Martin Makary, one of the authors of the study, points out that ignorance of the true costs of medical negligence leads to an overestimate of cardiovascular and other diseases, and an underappreciation of medical care as a cause of death. “That informs all out national health priorities and our research grants,” he said.

The CDC denies that its coding procedures are to blame for this lack of data regarding the cost of medical errors. Bob Anderson, chief the Mortality Statistics Branch at the Nation Center for Health Statistics, with responsibility for overseeing the CDC’s mortality data collection efforts, said that the CDC’s codes are adequate and follow international guidelines. But the CDC’s mortality statistics only count the underlying cause of death, which is defined as the condition that led a person to seek treatment. So even if a doctor does list “medical error” as a cause of death, that fact does not end up on the CDC’s official tally.

Anderson believes that there is no “compelling reason” to change this methodology, because it allows the statistics in the U.S. to compared with the causes of death in other nations. By following international guidelines, researchers can do an apples-to-apples comparison—but if the true impact of medical errors was included, this would skew the comparative numbers for other causes of death. As the Johns Hopkins study authors point out, “no method of investigating and documenting preventable harm is perfect.” But completely ignoring a leading cause of death means that our decisions about health care policy, including damages caps on medical negligence actions, will be based on incorrect information.

The tort “reformers” might argue that free-market forces, rather than tort suits, can ensure quality medical care. But in the health care system in the United States there is no market pressure on doctors to succeed at providing quality care, because health insurance costs and outcomes are not publicly available. Do you ever look up the cost of a doctor before undergoing treatment? Probably not. The way our the healthcare system works in the United States is not free-market at all. You can’t have a competitive market when costs and outcomes are concealed from consumers. If you call your doctor’s office and ask what a procedure costs they probably can’t give you an answer.

And if the CDC doesn’t even know how often medical negligence causes death, you as a consumer are not going to be able to unearth that information. We have a system where there is no cost or quality pressure—so free-market economics can’t be what put pressure on doctors to succeed and avoid bad patient outcomes.

Some institutions have internal quality controls that may put pressure on doctors when their death rates are too high. But do you trust companies to internally make sure that the quality of their products? Probably not in any other setting besides in the medical field. We tend to place absolute trust in our medical providers because they are providing life-giving care.  So those that are most in need of medical care, like the elderly, are the least able to self-advocate.

And caps on medical negligence damages are fundamentally an anti-free-market idea. The free market philosophy is that costs are most efficiently allocated when market participants are allowed to set prices based on supply and demand. The free market works best when costs are borne by the market participants responsible for incurring them, rather than externalized by a policy imposed by the government. Negligence caps remove the ability of the marketplace to allocate costs against participants responsible for incurring them, and instead transform damages that are in excess of the caps into external costs to be borne by society as a whole.

Given the fact that our system of medical services does not and probably never will function as a truly free marketplace, it’s up to practitioners of tort liability to hold doctors accountable. The only way the doctors are going to be held to task for screwing up as if they’re sued for medical malpractice. And so those who are in favor of “tort reform” are really working on behalf of doctors only, and not on behalf of patients. “Tort reform” and quote doesn’t actually protect medical costs. All it does is remove the one feature of our legal system that serves as a check against physician error.

Given the recent success of “tort reform” it shouldn’t come as any shock to any of us that medical errors are one of the leading causes of death in the United States. When there’s no way to call doctors accountable except through negligence actions, and negligence actions are strictly curtailed by the action of politicians and lobbyists protecting well-heeled industry donors, we should expect a system where medical errors are rampant.

We should reject the arguments of those who contend that civil liability increases insurance premiums and instead except the much simpler and more likely possibility that civil liability decreases mistakes, because it incentives quality care. If you know you are going to face a potentially ruinous civil judgment, as a physician you have motivation to refrain from making medical errors.

The case against “tort reform” has taken on a much more urgency given the Johns Hopkins study. We have reached the point that now medical negligence is starting to show up as one of the leading causes of death in America. We should not be willing to accept this as collateral damage of a battle between special interests. We should take a stand against so-called “tort reform” and realize that in our system for better or for worse, liability for medical negligence is the only aspect of our legal system keeping doctors motivated to provide high-quality services.

We should not have to live in a world where medical error is one of the leading causes of death. The Purpose of medicine is to treat people, not to kill them. It’s a premise so obvious it should go without saying. And yet our policies bely this basic premise. We have set up a system which basically ensures that medical negligence will occur. And now, lo and behold, it has.

Thanks, Tort Reform.

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