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Truth, health care and tort reform

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By The Staff

As an attorney in this community, I feel compelled to respond to the recent guest column of Dr. William Marcrum regarding the ongoing health-care debate.

While I cannot directly address some of Dr. Marcrum's finer points regarding the value of services he provides or the rates at which he is reimbursed for care to Medicare or Medicaid patients, I can certainly address the biggest inaccuracy in his commentary - tort reform as a prong of health-care reform.

Dr. Marcrum asserts that the lack of tort-reform is one of the driving factors in out-of-control health-care costs. Dr. Marcrum states that "not addressing tort reform is a strategic flaw ... because it raises suspicions in the minds of motivated senior citizen voters who have little regard for the role that attorneys play in our health-care system."

He goes on to say that "the lack of tort reform is also causing greater anxiety among health-care professionals about malpractice lawsuits due to unintended consequences of inefficient, uninformed government intervention in the system."

What Dr. Marcrum is apparently trying to say is that the health-care crisis is caused, at least in part, by lawyers.

Unfortunately for Dr. Marcrum, the facts don't back up such an assertion. Our American health-care system is a no-fault system. What that means is that - if you are fortunate enough to have health insurance - you don't have to prove that someone caused your illness or injury for your insurer to cover the costs of treatment.

If you're sick or injured, and if your insurer doesn't exclude coverage on your particular illness or injury, then they pay for some - or if you're really lucky, all - of your treatment. You don't have to prove a thing, and a lawyer is almost never involved.

Of course lawyers do become involved when insurers deny coverage or attempt to rescind a previously valid policy when a catastrophic injury or illness occurs, but that's hardly a driving cost factor in the health-care debate, as the insurance companies would have you believe that they don't do such things. But I can tell you from my very own experience in representing the very seniors that Dr. Marcrum refers to that they are not at all suspicious of the roles of their attorneys in such matters.

I will concede that they are suspicious of the attorneys for the insurance companies, of which there are many.

The second portion of Dr. Marcrum's tort reform argument focuses indirectly on the costs that health professionals pay for professional liability insurance, or more simply malpractice insurance.

Now Dr. Marcrum has actually treated both me and members of my family, so I know him to be a fine doctor. Obviously I trust him with the most precious people in my life.

Based upon my experiences, I cannot imagine a situation where he would be liable to anybody for damages for the care he provides, but as a prudent person I am sure he carries such liability coverage, just as I do in my law practice. And I am certainly aware that such insurance policies are costly. But if one wishes to peg the cost of those policies to any factor, consider the fact that premiums for policies of professional liability are actually at their lowest point in years, as are claims for medical malpractice and resulting payouts against such policies.

If you don't want to take my word for it, Americans for Insurance Reform commissioned a study on that very issue. The study was completed by Gillian Cassell-Stiga and Joanne Doroshow of the Center for Justice and Democracy, and actuary J. Robert Hunter, who is director of insurance for the Consumer Federation of America, former commissioner of insurance for Texas, and former federal insurance administrator under Presidents Carter and Ford.

The study found "that premiums and claims for doctors both have dropped significantly in recent years while the medical malpractice insurance industry is enjoying remarkable profits in light of the global economic collapse.

It concludes that further limiting the liability of negligent doctors and unsafe hospitals is not only unjustified, but also would have almost no impact lowering this country's overall health-care expenditures."

Hunter said, "thirty years of inflation-adjusted data show that medical malpractice premiums are the lowest they have been in this entire period. This is in no small part due to the fact that claims have fallen like a rock, down 45 percent since 2000. The periodic premium spikes we see in the data are not related to claims but to the economic cycle of insurers and to drops in investment income.

Since prices have not declined as much as claims have, medical malpractice insurer profits are higher than the rest of the property casualty industry, which has been remarkably profitable over the last five years."

So in other words, if Dr. Marcrum and his fellow health-care professionals want to blame someone for their malpractice insurance costs, blame the insurers for profiteering, or blame the insurers for investing poorly and balancing their books on the backs of their insureds through higher than necessary premiums.

And don't even try to blame the costs of such coverage for our country's badly broken health-care system, because the facts simply do not back it up.

The problem with our health-care system lies directly with the insurance companies that have been allowed to do as they please for decades, with no check on their authority and very little oversight.

If you want to blame any attorneys for this mess, at least focus your scorn upon the attorneys that the insurance companies have employed to protect the status quo, and not the many practitioners that have done nothing more than diligently represent the interests of those who have been abused by insurance company excesses.

For the full study visit insurance-reform.org/TrueRiskF.pdf

Hagedorn is a partner in the Tell City law firm of Huber, Goffinet & Hagedorn.