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I’m catching up on House health care hearings this morning (watching one live and one recorded keeps things interesting) and tuned in to two debates on limiting protections for victims of medical malpractice. Rather than focus on saving money and protecting patients by preventing medical errors from occurring in the first place, the amendments have tried to limit the rights of medical malpractice victims to go to court and hold negligent medical providers accountable. CW sent a letter last night and another last month with other consumer and patient advocacy groups urging members of Congress to reject attempts to use health care reform legislation to hurt victims of medical errors. Chairman Waxman nixed one amendment on a technical point this morning, one raised its head to be defeated in House Ways & Means last night, but the issue will raise its head again.

Here's the basic problem: restricting medical liability isn’t going to reduce the cost of health care.

From our letter:

The basis for the legislation – that defensive medicine is too costly and there are too many frivolous lawsuits – is simply without credible support.  No government study, from the GAO to the CBO to the earlier Office of Technology Assessment, has supported the notion that “defensive medicine” is a problem.  Most recently, the GAO harshly criticized evidence continuously cited by the American Medical Association that the tort system encourages defensive medicine.  As far as there being too many so-called frivolous lawsuits, the Harvard School of Public Health published a 2006 article in the New England Journal of Medicine, which put to rest that notion, finding that legitimate claims are being paid, non-legitimate claims are generally not being paid, and “portraits of a malpractice system that is stricken with frivolous litigation are overblown.”

Second, alternative systems where both parties voluntarily agree to take a case out of the civil justice system, are not only appropriate, but currently resolve the vast majority of legitimate medical malpractice claims today through the settlement process.  However, schemes that place undue burdens on injured patients or require that cases be heard in informal settings, tilt the legal playing field heavily in favor of insurance companies that represent health care providers and are fundamentally unfair, as we explain below.

And, as we wrote to the Senate two weeks ago, ”Shielding negligent parties from accountability is no way to cut costs or provide quality care.”

California is the state that is cited most frequently by proponents of malpractice liability limits as a success. But we have insurance regulation under Prop 103 to thank for holding malpractice insurance rates down for health care providers, not the draconian limits that were enacted on accountability for medical negligence. In the thirteen years after passage of a damage cap and other limits on liability, medical malpractice insurance rates went up 450%. Over the next thirteen years, after Californians approved strong insurance oversight, medical malpractice insurance premiums went down 2%.

The bottom line? To reduce the costs of medical malpractice we should focus on stemming the epidemic of preventable medical errors, not shift the costs of those mistakes out of the system and onto the victims.