Posted by Jared Faerber of The Faerber Law Firm, P.C.

    Some have used the current health care reform debate as an opportunity to introduce so-called tort reform.  "Tort reform" being code for limiting or restricting a patient's right to recover in medical malpractice claims in Utah and throughout the nation.  The reality, however, is that the direct costs associated with medical malpractice are a tiny fraction of health care costs in the United States.  According to the National Association of Insurance Commissioners, the total spent defending claims and compensating victims was $7.3 billion dollars in 2007.  This is just 0.3% of health care costs of $2.2 trillion for the same period. 

   Clearly, compensating victims of medical malpractice is not a driving force in the skyrocketing costs of health care.  Reformers then argue that so-called "defensive medicine" is driving up the costs.  Defensive medicine is the dubious assertion that doctors are frightened into ordering billions of dollars worth of unnecessary tests to avoid litigation.  This is a red herring.  The medical malpractice law in Utah and other states does not require a doctor to order unnecessary tests to comply with the standard of care expected of a physician or other health care professional.  In fact, ordering completely unnecessary tests is arguably malpractice itself because it subjects the patient to unwarranted risks associated with a test without a benefit.

    A 2008 report by the Congressional Budget Office (CBO) found that the evidence of defensive medicine is "not conclusive, and whether limits on malpractice torts have an impact on the practice of medicine has been subject to some debate."  The CBO also noted that "some so-called defensive medicine may be motivated less by liability concerns than by the income it generates for physicians or by the positive (albeit small) benefits to patients."  It should be remembered that in a fee-for-service environment, each procedure or test ordered by a doctor generates income to that doctor or the hospital and clinic, which are often owned by the physician. 

   The bottom line is that is it wrong to attempt to shift the burden of malpractice onto the victims themselves.  Real savings to the health care system could be achieved in Utah and throughout the nation by reducing medical and surgical errors.  According to the Institute of Medicine as many as 98,000 Americans die each year as a result of medical errors.  The costs associated with these errors are estimated to be as high as $29 billion annually.   This does not include those severely injured and traumatized by preventable medical errors.