A Response to "Medicaid -- Tort Reform"

I argued here that litigation costs and concerns are squandering some of our Medicaid monies. Charlie Thronson disagrees. He writes:

I agree with you that it never hurts to review the current system in any
government program, but I don't agree that the current Medicaid costs,
cutbacks or funding problems can be laid at the feet of those people who
are injured or killed as a result of substandard medical care.

The Institutes of Medicine (hardly a "trial lawyers" group) have
estimated that preventable medical errors kill between 40,000 and 90,000
Americans each year, making medical errors the 7th leading cause of
death in the United States. Hundreds of thousands of other people who
are not killed outright are injured, many very seriously. Utah has some
part in those alarming statistics.

The usual whipping boy for alleged "litigation-driven" medical costs is
what is called "defensive medicine." In my experience, "defensive
medicine" is in the eyes of the beholder: Take the case of 4-year old
[Jane]. Her mother pled with the ER doctors at [Hospital X] to do a
simple blood test to rule out meningitis. They expressly refused,
saying it was an unnecessary cost (at $15). Thirty-five hours later,
Jane was dead from bacterial meningitis.

In virtually all of the cases I have done, the problem is health care
providers ignoring clear warning signs, assuming that the problems they
are seeing are benign. If "defensive medicine" means doing those things
that the accepted medical standard of care requires, then it should be
encouraged. On the other hand, if "defensive medicine" means doing
tests or procedures that are excessive or unnecessary, then it is a
clear violation of both state and federal law, as well as the ethical
rules of the profession.

The reality is that patients are often given short shrift in medical
services, and Medicaid patients are at the bottom of the barrel in terms
of the attention they are given by most health care providers. The
reality also is that the state pays out millions of dollars for health
care costs caused by medical errors. Some of this is recouped for the
state by the attorneys representing these injured people (the dreaded
"trial lawyers") and is part of the $3.4 million reimbursed to the state
this fiscal year. Roughly the same amount was recovered by victims'
lawyers and returned to the state last year.

So while studying the issue is laudable, I respectfully suggest that the
Legislature should also study why so many Utah citizens are injured or
killed from medical mistakes, how much Medicaid pays for these mistakes,
and what can be done to curb this serious problem.

(I took the liberty to change the name of the girl and the hospital.)

UPDATE (6/21/06): And then there's Clark Newhall, who writes, "Frankly, I am surprised that a person with the intellectual capacity to obtain a law degree would fall for the anecdotal hysteria that passes for health care debate in Utah." I'd like to publicly thank the members of my law school study group for translating all those fancy lawyer words into pictures I could understand.