The Great Hoax: Tort Reform, Better Healthcare

John J. Hopkins Mar. 13, 2010, 4:27am


The movie "The Hoax," a 2007 release featuring the largely underrated Richard Gere, tells the story of a grand scam perpetrated by the writer Clifford Irving in the telling of the "authorized" memoirs of reclusive billionaire Howard Hughes.

While largely a forgettable picture, the movie relates the BIG LIE, told with style and repetition, and how the naive and gullible were taken in by the swindle. It forms the perfect metaphor for today's column.

In the 1930s, a master of propaganda once said "If you tell a lie big enough and keep repeating it, eventually the people will come to believe it." Such a cynical statement would be prophetic for our times, and the grand scam put forth about the dependent relationship between accessible health care and tort reform.

Starting at least in 2004 with the Maag-Karmeier race for the Illinois Supreme Court - if not well before - the forces of dark deceit have resorted to blatant scare tactics. Aimed at the vulnerable, it was designed to ingrain the myth that an out of control malpractice system was the root of all evils in the health care maze. If - ONLY IF - the beast could be retrained, greed controlled and virtual immunity granted, then and only then would our area still have doctors. The fraudulent but widely successful "Keep Doctors In Illinois" campaign played on the base fears of an aging populace and would have made even the Master Propagandist green with envy.

The time is now here to set the record straight.

American patriot and second U.S. President John Adams, while working as defense attorney for the British soldiers accused in the Boston Massacre of 1770, pronounced in his Summation to the Jury that "Facts are stubborn things; and whatever may be our inclinations, wishes, or the dictates of our passions, they cannot alter the state of facts and evidence."

Such oft times quoted words have never rung truer. When analyzed in the cold and dispassionate light of day, the role that Medical Malpractice plays in the artificial acceleration of health care costs is so slight as to be statistically insignificant. To suggest the wholesale sacrifice of civil litigation rights for such a minor player in the health care drama insults not only the intelligence but the integrity of all who hear such nonsense.

Myth No. 1: Rising healthcare costs can be tied to malpractice claims

According to the most reliable of sources, the projected costs of healthcare spending in 2009 were approximately $2.5 trillion - with a T. Of that, even including the costs of insurance premiums - figures that other studies have conclusively shown to be inflated without being tied to actual claims experience - the amount assignable to malpractice litigation is a mere 2 percent of the total.

The claim of inflated expenses due to so called defensive medicine, tests designed to get at the root of a problem and ensure for the patient as accurate a diagnosis as possible, are immeasurable and cannot be properly brought into the discussion without resorting to wholesale speculation.

Myth No. 2: Madison County-Judicial Hellhole

Reality sometimes intrudes on fantasy, and this is one sure case. Contrary to the popularly held belief, the Courts of Madison County have been among the most hostile to malpractice Plaintiffs in the State of Illinois. Case filings are down dramatically, even while announcements of new arrivals of physicians, the opening of hospital wings and the expansion of oft times competing specialty services fill the newspapers.

Truth be told, with the current litigation climate and juror attitude, no place is more hospitable to the negligent hospital or the clumsy surgeon than the Courts found in Edwardsville.

Myth No. 3: Malpractice premiums can be related to claims filed

Doctors in the Metro East have been consistently abused by their own captive insurance carrier, the Illinois State Medical Insurance Exchange - (ISMIE). Rates were set without regulation, and were naturally raised without remorse. Rather than focus on the real culprit, the strawman of the "frivolous lawsuit" - truly a myth given the oppressive costs involved for any such case - was created to deflect attention.

For the most part, it worked brilliantly but like any such deception, it was bound to be eventually exposed. The time has now come, and the reality is that despite the poor mouthing, a profit of over $125 million dollars was made by ISMIE during the height of the so-called crisis, 2006 thru 2008, despite the decline in payouts or case filings. John Adams was so very correct about the nature of facts.

Unlike some of my more conservative colleagues, I believe that healthcare is a basic American right. The biggest problem is the cost. Costs can be measured in treasure, or in debt assignable to future generations, but also in the loss of fundamental rights. In the now frantic rush to bring a health care plan home, the price must not be the abandonment of the right to seek full redress in the Courts for harms negligently inflicted.

Such a price would be unacceptedly too high, and must therefore be opposed without dispatch. Be not afraid.

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