Wednesday, March 17, 2010

Why tort reform isn't on the table: hard lessons about special interest money in Washington

Every semester, I do an in-class competition to show my students the power of the Web in digging up data for stories. I separate them into groups and ask them to find the answers to specific questions about current sociopolitical trends. Two questions I always ask are: one, what are the top industries in terms of campaign contributions to Congress and two, which are the top industry spenders on lobbying Congressional and federal officials. (These are two very different ways of influencing policy decisions).

The answers this year were instructive, particularly in the light of the ongoing battle to pass a health care bill.

Not surprisingly, the pharmaceutical/health products industry topped the list of industries spending millions of dollars to sway the opinion of Congressional and executive policy makers, according to Center for Responsive Politics, a nonpartisan, nonprofit research organization that tracks money in U.S. politics. This industry, which includes Big Pharma, biotech and the medical device industry, spent $263 million in 2009, far ahead of the second (business associations), third (oil and gas) and the fourth highest (insurance companies) spenders on the list. This ranking comes as no surprise, since the pharma/health industry has dominated the list of big spenders on lobbying for more than a decade, which goes a long way toward explaining why Big Pharma almost always gets its way in Congress and with the FDA as well.

What may come as more of a surprise is the industry that of late has topped the list of big spenders on Congressional campaign contributions: lawyers and law firms. In the 2009-2010 election cycle, lawyers gave Congress $27 million and the top recipient of their largesse was none other than Harry Reid, the Majority Leader for Democrats in the Senate. In the 2008-2009 election cycle, Barack Obama was the top recipient of their money, and in 2007, it was Hillary Clinton, then considered the front runner as the Democratic presidential candidate, again according to the Center for Responsive Politics, which culls its data from government records.

Such over-the-top spending explains why tort reform has been consistently excluded from each version of the health care bill, despite the fact that it's a favorite cause of Congressional Republicans. There's an ongoing debate over just how much money tort reform, or putting caps on the amount of money plaintiffs and their attorneys can reap from malpractice lawsuits, would actually save. For example, it's debatable whether tort reform would generate much savings in malpractice insurance, but there's no question that if doctors were less afraid of getting sued for big bucks, they might order fewer tests and procedures for patients and that could generate considerable savings, particularly if it was linked with real changes in the way doctors are reimbursed for care (i.e. being paid by salary rather than fee for service).

But what I haven't understood until now is why the Democrats haven't been using tort reform as a bargaining chip to bring some moderate Republicans into the fold on the health care bill.

Now that I (and my students) see how much big money lawyers have been throwing at Congress and our current President, I understand why tort reform is not on the table. And that's a damn shame. If capping monetary damages in medical malpractice suits were part of health care reform, some Republicans might just break rank and vote for it.

Instead, we see special interests once again calling the shots. No wonder the American public is, as Neal Gabler says in The Boston Globe today, so enervated and apathetic.


Michael Kirsch, M.D. said...

I agree that lawyers' contributions to the Dems partially explain their allegiance to the status quo. I also believe that Democrats philosophically are comfortable with the current medical liability system. The fact that nearly every physician in the country is hostile to it, should suggest that it is unfair. The actual costs of litigation are relatively small. The real benefits of effective tort reform would be saving billions of dollars on defensive medical tests, which patients do not need. This would save money and save patients from risks of unnecessary tests. It would also restore fairness to the system. I have devoted many posts to this issue at under Legal Quality, and invite your readers to comment. Thanks for your fine post.

Unknown said...

Thanks for illuminating some of the behind the scenes funding.

I actually disagree that the main benefit of tort reform would be to reduce defensive medical spending. Even thought that would probably save billions of dollars the main detriment of the current malpractice climate is not to increase defensive medical spending.

The real damage caused by the way malpractice is handled is that it changes what used to be a social contract between doctors and patients to a business contract. That change is fundamental and completely alters who goes into medicine, why they go into medicine, what happens as they practice medicine, and how long they stay in medicine.

Imagine that I help my neighbor with his car. I do this for nothing more than sharing a couple of beers or soft drinks afterward. What I have done is done under a social contract. Now imagine that my neighbor has the right to sue me if he doesn't like the way my help turned out. Will I help him again? If so, how much would it cost him? Certainly a lot, lot more than a couple of beers.

This is what has happened in medicine. The fact that a patients can and do sue their doctors for spurious reasons has changed the fundamental contract between doctors and society. That change is what is so destructive and costly. It contributes not just to defensive medicine, but to doctors overwhelmingly choosing high-paying specialties rather than primary care, to increased burnout among physicians, to early retirements, and to a latent suspicion in every patient contact. In addition, like any group under attack, doctors have banded together so that patients are more and more treated by medical corporations, large impersonal groups of physicians, PA's, NP's and MOA's. So now even doctors who want to have more of a social contract cannot do so unless they are able to practice solo or in a small group practice.

I fortunate enough to have a solo practice in psychiatry where I am able to have more of a social contract with my patients. I do no advertising and have a two month waiting list. Patients WANT this kind of relationship with a physician. Doctors want it too. But, as you pointed out, this is a democracy in which dollars, not the public have the votes.

For some general information on social vs. business contracts as well as other interesting ways humans behave see Predictably Irrational by Dan Ariely.

Michael, I went to your blog and will start checking it regularly. Hadn't seen it before.

Joseph Arpaia, MD