The elephant in the room… tort reform

Our president explains that one of the problems with our current health care system, which he intends to correct with Obamacare, is “unnecessary testing”. He believes, and, I suspect many do, that these “unnecessary tests” simply drive up the cost of health care, and have no real benefit to anyone other than the folks who administer the tests.

So, I thought I would first focus on that concept.  What is an “unnecessary test”?   As we have received no guidance from our president on that score, we are left only to guess.

All I can do is give you my own personal experience.  My doctor orders a mammogram once a year.  So far, those tests have come out negative.  Does that mean that my yearly mammograms were “unnecessary”?

I suppose that I could tell my doctor that since the ordered tests have been negative in the past, my money is simply being wasted on “unnecessary testing”.  But, before I do so, let me first put on my “attorney” hat, and, simultaneously, try to put myself in my doctor’s shoes.

As a trial attorney I say, doctor, why didn’t you test my client’s spouse for ________.  It was a simple, relatively inexpensive test, and had you so tested, my client’s spouse would be alive today.  As the doctor I say, I had absolutely no reason to test for _________.  Your client’s spouse’s medical history showed no signs of that being an issue, so I saw no reason to put your client’s spouse to the expense of that test.

Who wins before a jury in this tug of war?  The grieving spouse, of course.

There are two logical results from that jury verdict.  First, medical malpractice insurance premiums rise.  Some doctors already pay in excess of $100,000 per year for such insurance, and, that cost is passed on to you in ever increasing fees for medical care.  Second, the doctor who lost the trial I refer to above, will now begin testing for _______ in all of his or her patients, as will that doctor’s colleagues.

Mr. President, you can’t have it both ways.  You can’t tell doctors that many prescribed tests are “unnecessary”, and, at the same time continue to expose those doctors to liability for failure to order those “unnecessary” tests.  And, you can’t reform health care without reforming all components of health care, and, medical malpractice law suits are not only a component, but a large component.

Mr. President, will you and Congress take on the American Bar Association by proposing sensible medical malpractice tort reform?

I think not.