Only Alternative Facts Can Support the Protecting Access to Care Act

In late March of this year, JAMAInternal Medicine published a study finding that the “the overall rate of [malpractice] claims paid on behalf of physicians decreased by 55.7% from 1992 to 2014.”  The finding wasn’t new.  In 2013, the Journal of Empirical Legal Studies published a study co-authored by one of us (Hyman) which found that “the per-physician rate of paid med mal claims has been dropping for 20 years and in 2012 was less than half the 1992 level.”  In fact, peer-reviewed journals in law and medicine have published lots of studies with similar results.  It is (or should be) common knowledge that claims of an ongoing liability crisis are phony.

But inconvenient facts have never stopped interest groups or politicians from making false claims about med mal litigation.  Since 1991, when Dan Quayle struck gold by asserting that the U.S. had too many lawyers, Americans have heard non-stop about “jackpot justice” in which patients who weren’t even injured win millions; about the flood of frivolous lawsuits in which doctors are sued even though they didn’t make any mistakes; about jury verdicts skyrocketing out of control; and about doctors working all their lives only to have their savings wiped out by a single malpractice suit.  All of these charges are false—you can find the evidence here, here, here, and here.  But in politics, it’s staying on message that counts; it doesn’t seem to matter whether the message is true.

Kellyanne Conway brought “alternative facts” into the political lexicon, but tort reform advocates have been mouthing alternative facts for decades — and researchers who study the civil justice system empirically have been debunking them for just as long.

Politicians don’t take kindly to being called out.  When Texas’ tort reformers sought to limit lawsuits in 2003, they promised that caps on damages would save money by reducing the practice of defensive medicine.  Then, we co-authored a study showing that health care spending rose at the same pace after 2003 as it had before.  How did then-Governor Rick Perry respond? He said that the real goal of reform was to lure doctors to Texas, not to save money.  And, he claimed the real goal had been accomplished, because thousands of new doctors had flooded into the state.  Perry’s fallback claim was also based on alternative facts.  As we showed in another co-authored study, there was no evidence of an increase in the number of direct patient care physicians in Texas during the post-reform period. Perry’s career did not suffer because of these statements – he now heads the U.S. Department of Energy.

Perry has a kindred spirit in Dr. Tom Price, the Secretary of the U.S. Department of Health and Human Services.  In 2010, Price asserted that defensive medicine accounted for $650 billion  every year, or 26% of health care spending.  Price’s “evidence” for this astonishing claim was a survey of physicians, asking them to estimate what percentage of health care spending was attributable to defensive medicine.  This figure is implausible on its face, and is roughly 15 times the estimate of $45.6 billion per year published in 2010 in Health Affairs.  Some studies have found even lower estimates.  And, with 30 states already enacting tort reform, many of the potential savings (if any) have already been realized.

Republicans are still pushing for tort reform at the federal level.  H.R. 1215, the Protecting Access to Care Act would impose a $250,000 cap on recoveries for non-economic losses.  The FY 2018 budget for HHS includes a similar proposal to “modernize” the medical liability system by capping non-economic losses at $250,000, but indexing the cap for inflation. We doubt that these caps will have much of an impact on health care spending or physician supply. They are also a remarkable intrusion into an area traditionally regulated by the states.  And they are aimed at a peculiar target, since there is no evidence that med mal victims are routinely over-compensated.  To the contrary, it is well established that most receive amounts that are too small to cover the economic losses they incurred, or, in the case of plaintiffs who win at trial, too small to cover the losses that juries think they incurred.

H.R. 1215 also includes a sliding scale cap on plaintiffs’ lawyers’ contingent fees.  The FY 2018 budget for HHS includes a similar provision allowing courts to modify fee arrangements. These provisions are sold as protections for vulnerable patients who can’t protect themselves from greedy attorneys, but they are really just price controls that prevent many victims with meritorious claims from obtaining the legal services they need.  We have studied the market in which clients hire med mal lawyers.  Lots of firms compete for their business, and “it is hard to make an economically plausible argument for capping contingency fees.”  The only explanation for the GOP’s desire to cap their fees is that plaintiffs’ attorneys tend to support Democrats.

To support H.R. 1215, then, one needs a host of alternative facts—a med mal liability crisis that doesn’t exist, hundreds of billions of dollars in imaginary health care savings, fictional damage awards, and imaginary overcharges by plaintiffs’ attorneys.  Could even Kellyanne Conway deliver all that?

Charles Silver is a professor at the University of Texas School of Law and David A. Hyman is a professor at Georgetown University School of Law.  They are co-authors of After Obamacare: Making American Health Care Better and Cheaper (forthcoming 2018).

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5 replies »

  1. I really thought I was going to like this article, but I was left wondering what the point was. Yes, you are against federal legislation on this issue. I agree with that. But the underlying premise: I assume you’re suggesting that med mal cases are the problem they are made out to be. I have no doubt Sec. Price and others over estimate the defensive medicine practice as a result of the fear of lawsuit. Physicians, like many professionals, are risk averse anyway, and hate making mistakes, so my premise is that much over ordering would continue regardless of the med mal situation.

    That being said, the current med mal situation serves all to few plaintiffs well. You need a really big case to take it to court. Those with medium and smaller injury resulting from malpractice are usually without remedy. Med mal remains a kind of lottery.

    And I’m not sure the cure is in lowering plaintiffs’ counsel fees (contingent) although they never should be more than 33% in my estimation.

    I remain convinced we need to move medical malpractice into the arena of worker’s compensation. Compensate all patients “injured” as a result of medical procedure regardless of fault. Our healthcare crisis has reached the point where some intervention such as that is needed. We did it in many states with no fault auto insurance also. Let’s compensate everyone who is “injured” whether large injury or small. Yes, cap non economic harm, but methinks $250k is altogether too low.

    The key is in defining “injury.” Difficult yes. Is a less than altogether cure resulting from spinal surgery “injury?” Is surgery that restores some but not all of mobility “injury?” Line drawing sure, but we line draw every day.

  2. “doctors are sued even though they didn’t make any mistakes … All of these charges are false”

    Are you trying to tell us that no doctors have been sued that didn’t make any mistakes? That is what your statement sounds like, but the statement doesn’t even pass the laugh or smell test. This type of statement along with a few others makes it difficult to take what you say seriously though you seem to provide enough studies to sink a ship without the relevant sentences of proof to accompany those claims. In our previous encounter I showed you where your studies had holes and you dropped the subject.

    As far as Price’s estimate of the cost of malpractice I don’t know that I agree with him either, but you seemed to take the polar opposite position making your estimate potentially as bad as his. The rationale behind my thinking was highlighted in my first comment above. (Search for # in this thread)

    I hate to say it but this op-ed of yours sounds more like a one-sided rant against people that disagree with you than an op ed trying to investigate or perhaps demonstrate a point. I sincerely hope you do better next time.

  3. I read this newest blog with interest especially since many questions were left unanswered from your last blog due to your time considerations. I would have thought that some of those answers might be in this newest blog, but we do have a library of new referrals without direct answers to the old questions. At present I’ll stick with the old and repeat some of the questions previously left unanswered and then perhaps proceed to the newest questions presently at hand. [ https://thehealthcareblog.com/blog/2017/04/26/the-return-of-the-angry-granny-state/

    Below are some of your quoted words followed by my reply.

    May 2, 2017
    ““Facts matter, and when complex facts—such as the collateral effects of med mal liability—are disputed”

    Absolutely! Facts matter Charlie, but that is not what we have been dealing with. Viewpoints and conflicting data don’t provide facts. I completely understand the various levels of evidence and consensus thinking, but that doesn’t provide us a definitive solution especially since all these things are heavily disputed. A quasi-experimental design*** from the NEJM is not fact and it isn’t even considered a good study though it may be interesting and a good thought to base a future study off of. Consensus is merely the status quo until a new idea is developed. Further the idea of what constitutes a consensus is frequently a debatable issue.

    Re Cesarean Sections: “ In my world, the person who asserts a fact bears the burden of proving it.” Your blog asserted a lot of things regarding malpractice of obstetricians so I am not the one initially asserting the facts. You even discussed how the rates have fallen in Texas for all malpractice, but you left out that obstetrics had one of the highest rates for basic coverage. I think that you should have listed those rates for the obstetricians so others could decide for themselves. When I last looked their rates were in the mid twenty thousands for what I consider insufficient coverage. My actual coverage at a minimum was for 3-10 times the amount of coverage I saw when I last looked for obstetrician coverage in Texas. Similar coverage would leave malpractice premiums quite high or the coverage could still be leaving the physician with a high risk.

    Nowhere did you touch on the concept that a reduction in malpractice insurance doesn’t eliminate all the fear nor should one expect a drop in costs. Did any of your studies deal with that most important concept? #The prior malpractice situation created a standard of care that for the most part I believe will continue, perhaps without much of a fall, but the costs in the future will not grow as fast and gradually the costs of prior malpractice fears will erode as medical care changes. I don’t believe your studies deal with this very real concept. Until they do I believe your conclusions are errant. Now I ask you what asked me. You are the researcher that spends his time on this limited topic. “Prove it”. #

    “The study of ER docs is to the same effect. It shows that treatment practices remain unchanged after the threat of being sued is removed. The ball is in your court, insofar as proof of the asserted connection is concerned.”

    First, you have to get things right. The threat of malpractice has only been reduced despite your claim “after the threat of being sued ***is removed***”. Such statements are inaccurate and should not be made. Secondly, the effects of a reduction of malpractice risk likely has its greatest effect on future changes in medicine, not those treatment practices that already have already developed an expensive standard of care due to greater previous risk. (See # # above.)

    “ I think you are misreading what the law did.”

    Thank you, I understood that part of the law and didn’t question it. “ the law raised the standard that plaintiffs must meet to establish that ER docs are liable.” I agree, but the standard of care provided by the law doesn’t suddenly change the standard of care already adopted by the physician community. As physicians we are at risk of juries and interpretation of the law. Any time you want to assume the risk of an obstetrician I am sure they would be willing to hand it over to you and my guess is you wouldn’t want it. (See # # above.)

    “ They believe it, just like you do, but they do not “know” it because…”

    You have just made one of my points. “They believe it” whether or not it exists. It is the fear that creates the costs, not the reality. By nature human beings are risk averse so on equal bets they will generally take what appears to them to be the safest route. That is precisely one of the reasons I said what appears at # # and in my earlier responses. Thank you for adding you voice to my point.

    “Studies of physicians’ actual treatment practices suggest that doctors are also wrong about the collateral effects of med mal liability.”

    Physicians might misinterpret the facts regarding liability, but perception is reality. This is one of the reasons I believe your studies are faulty with regard to your conclusions.

    “Re Gawande: Thanks for sending the link to the column. It’s a great piece and I enjoyed reading it, but I’m not sure why it is relevant to our conversation.”

    You brought up Gawande and his magazine piece, not I and it appeared you were utilizing this piece as evidence. I merely demonstrated that the piece was flawed and therefore unless you could show otherwise this magazine article you used to prove your point was poor evidence. Gawande erred on an important issue.

    “I’m about to encounter a time-crunch” We all have time considerations so we all understand. I myself am not home, so I have had to respond on the fly. However, you are a researcher in this topic and I respect that. I brought some important points that I believe deserve more attention by you for some of those points radically change one’s perspective. I was surprised that you didn’t respond directly to them. Perhaps you will in the future or perhaps you will reconsider and do so in the present. Research is a multi-sided adventure unless one is fixed to a singular point of view and sets out to prove it. I am open to persuasion and that is why I presented my ideas the way I did.

    I await for our next exchange hoping that your research expands its dimensions. That, I presume is why you post here in the first place.”

    I hope you take this repeat email as an attempt to move the discussion forward because I don’t think you left an adequate foundation in our last discussion.