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Tort Reform

Any civil lawsuit involving damages for an injury is a “tort.” In recent decades, runaway jury awards, frivolous lawsuits, rising medical liability insurance premiums, and the need for doctors to protect themselves from accusations of negligence have made practicing medicine increasingly difficult and expensive.

“Tort reform” involves changing rules or passing laws to reform how civil lawsuits, particularly those involving medical malpractice, are handled. Medical professionals seek tort reform (also called lawsuit abuse reform) to make medical liability lawsuits more equitable for health care professionals and to reduce malpractice insurance premiums, which have increased at an alarming rate. Be aware that “tort reform” does not take away anyone’s right to sue for legitimate medical malpractice.

“Tort reforms” can take several forms, including requiring expert witnesses to practice in the same specialty as the plaintiff physician, or that cases are tried in the county in which the alleged malpractice occurred. The most commonly discussed tort reform, however, is limiting damage awards for non-economic (or non-compensatory) damages. While it is possible to quantify “economic” damages for medical care, lost wages, special devices, home assistance or whatever else it will cost to make the plaintiff “as whole as possible,” it is not possible to put a price tag on someone’s pain and suffering or loss of the joys of life. These categories of damages, also called non-economic damages, are often the source of runaway jury awards and outrageous malpractice premiums.

States like California and Texas, which have enacted tort reforms which include placing a cap on non-economic damages (while economic damages remain unlimited), have lower medical liability premiums and more doctors, while states which do not limit non-economic damages have higher premiums and a lower number of doctors. Physician specialty and advocacy groups have worked hard to enact tort reform at both the state and national levels, and will continue to do so.


The “Doc Fix”

When you hear the term “doc fix,” whoever is using the term isn’t suggesting that doctors need to be fixed.  The term has come into popular usage since 2003, when the first of several years’ worth of annual scheduled reductions in the reimbursements Medicare pays doctors was supposed to go into effect.  Those cuts, passed as part of balanced budget legislation in the late 1990’s, were designed to reduce Medicare payments to health care providers like doctors, hospitals, and nursing homes.  But the doctors’ formula is different from the formula used to calculate how much Medicare should pay hospitals and nursing homes.  Based on the Sustainable Growth Rate (SGR), the doctors’ formula calls for regular reductions over a period of years to reduce overall Medicare spending, while hospitals and nursing homes, based on another formula, have sustained increases during the same time period.

Legislators are aware that the SGR formula isn’t an accurate indicator of what Medicare should be paying doctors, so Congress has voted every year since the cuts were supposed to begin in 2003 to postpone the reduction.  It would make far more sense to simply repeal the SGR formula and base physician reimbursement on a more accurate formula, but Congress counted the “savings” from the reductions as “income” and its members are reluctant to remove that imaginary income from their budget projections.  So instead of fixing the flawed formula, they vote hastily at the end of each year to postpone the reductions, which has resulted in an accumulated total reduction of more than 25%, scheduled to go into effect January 1, 2013.  So if you aren’t hearing it already, be prepared to hear the term “doc fix” in the news a lot before Congress adjourns for 2012.


Scope of Practice

You wouldn’t hire a carpenter to design a skyscraper or a court reporter to defend you in court, or an Army private to chair the Joint Chiefs of Staff, right?

Of course you wouldn’t – any more than you would hire a neurologist to perform brain surgery or a cardiologist to do open heart surgery. It seems obvious to most people that medical and surgical procedures should always and only be performed by the medical professionals who are trained to do them – but there are constant “nibbles” around the edges of what trained medical professionals do every day.

In many cases, it’s other medical professionals doing the “nibbling” by seeking legal authority to perform outside of their own training and experience.  These non-physician medical professionals seek to expand their own “scope of practice” by obtaining permission to do medical procedures traditionally (and safely) performed only my MD’s and DO’s.  For example, in some states there has been a movement by optometrists – valuable health care providers in the specific area in which they are trained to practice – to perform Lasik surgery, which should, in all cases, be performed only by trained opthalmologists in order to ensure patient safety.

While non-physician medical professionals are extremely important to health care delivery, it is vital that physician organizations focus on patient safety issues whenever “scope of practice” issues arise.  The bottom line is that physicians have far more education and training than any other group of medical professionals, and that patients are put at risk when other groups of health care professionals reach outside of their own levels of training in order to expand their influence and income.  Sadly, as governments at all levels seek to reduce health care spending, we expect “scope of practice” issues to continue to be a problem.


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