Questions that need to be asked about tort reform and medical malpractice

By Stephanie Mencimer

smencimer@earthlink.net

Q. Should the taxpayers be forced to subsidize higher Medicaid rates for damages caused by negligent doctors?

Under federal law, Medicaid gets reimbursed from any malpractice award to victims if their subsequent care is paid by the government health care program. (Many people with catastrophic injuries from malpractice eventually end up on Medicaid.)

If awards are capped, as President Bush is requesting, or, more likely, if far fewer lawsuits are brought to court, where will the money come from to make up for the Medicaid shortfall? In one state, Nevada, where a recent ballot initiative restricted the ability of injured victims to collect damages, Medicaid receives somewhere in the neighborhood of $2 million to $5 million a year from medical malpractice lawsuits, and sometimes that comes all from a single case. The total in more densely populated states is likely to be much higher.

Injured patients who are disabled but are not able to recoup enough money through the courts (as they would under the president's proposed bill) also will likely end up receiving government disability benefits and remaining on Medicaid through much of their lives. Is it fair for taxpayers to pick up these costs rather than the insurance company of the doctor who caused the injury?

Q. The President has insisted that his proposal to cap medical malpractice lawsuit awards will not affect legitimate lawsuits or prevent citizens from having their day in court. Can he provide an example or two of medical malpractice lawsuits that resulted in high jury awards for pain and suffering that he believes were not frivolous? If he can provide such an example, does he then believe that those awards should have been reduced to $250,000?

Q. Class action litigation is a means of handling large numbers of small claims that would be too costly to litigate individually. If the class action bill supported by the White House passes this year, where will the money come from to fund the state courts (i.e., hire hundreds of new judges, etc.), which will be overwhelmed with small lawsuits that are currently aggregated into single class actions? 

Ninety-eight percent of all tort lawsuits in this country are litigated in state court, where the rules are decided by state legislatures. The Republican Party has defined itself as a defender of the right of state and local governments to make decisions for themselves. Does the president believe that states’ rights should be ignored with regard to tort law? After all, virtually no medical malpractice lawsuits are filed in federal court, where Congress has oversight. Yet the president’s medical malpractice “reform” bill would force states without damage caps to impose them, whether they want to or not. Shouldn’t Congress and the White House respect the states’ decisions?

And finally, a question regarding secrecy:

Q: Journalists and the public glean a tremendous amount of critical information about the workings of both business and medicine through documents obtained in lawsuits. Both the class action and medical malpractice reform bills supported by the White House are likely to severely restrict this flow of information. Would the President support legislation to a) open up the National Practitioners Databank to the public and b) create a publicly accessible reporting system for medical errors and other measures that would make private corporations more transparent to the public?

Stephanie Mencimer is a contributing editor of The Washington Monthly and a fellow at the Alicia Patterson Foundation. E-mail: smencimer@earthlink.net

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