Smith Prescribes a Spoonful of Tort Reform

U.S. Rep. Lamar Smith, center, with doctors Howard Marcus and Steve Berkowitz (Photo by Richard Whittaker)

Republican Congressman Lamar Smith is once again touting his patented panacea for everything that ails you: tort reform, the technical term for restricting legal options when suing for damages. This time, he reckons it can fix health care.

On Sept. 18 at St. David's Medical Center, Smith called for tort reform to be included in any federal health care bill and argued that litigation restrictions passed in Texas in 2003 cut malpractice premiums by 30-50%. He said, "We could save tens of billions of dollars every year, and a lot of those costs would be able to be passed on to patients."

Smith wants to restrict lawyers from "forum shopping" for litigant-friendly judges, and explained, "the Harvard School of Public Health said that 40 percent of all lawsuits against medical personnel are frivolous." In fact, in 2006 the Harvard school published a report that refers to "portraits of a malpractice system riddled with frivolous lawsuits" as "overblown." While 37% of claims studied lacked clear evidence of medical error, 90% of the cases involved claims of treatment-related physical injuries, and 80% of malpractice administrative costs came from suits with merit.

Anne Dunkelberg, associate director of the Center for Public Policy Priorities, argued that the tort reform argument distracts from the real issue of gaps in health care coverage. "If all you do is reduce the cost of health care," she said, "all you're going to do is bring a few upper-middle class people into the pool of people who can afford health care right now."

President Barack Obama has mentioned integrating tort reform into health care reform. During his Sept. 9 speech to Congress, he said that doctors practicing "defensive medicine" may be raising costs. However, he added, "I don't believe malpractice reform is a silver bullet," and his administration is proposing demonstration projects.

That's not enough for Smith, who said the Texas experience is enough demonstration. Dr. Howard Marcus, chair of medical and insurance industry pressure group the Texas Alliance for Patient Access, noted the extra 16,000 doctors practicing in Texas since 2003. He added, "When insurance premiums drop, doctors want to practice medicine and come to Texas." Even so, St. David's Chief Medical Officer Steve Berkowitz argued that Texas needs more tort reform, calling the current rules "the low-water mark."

So has tort reform improved access and cut health insurance premiums? According to a September report by Families USA, rising insurance premiums in Texas have dramatically outpaced earnings. Meanwhile, 25% of Texans are uninsured – well above the national average of 15%.