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The barriers to affordable health care in the U.S. have long included outdated government-run programs like Medicare and Medicaid and an over-abundance of mandates and regulations imposed on the health care industry. Now, we must include the titanic costs of malpractice insurance. Litigation is increasing the price of malpractice insurance for physicians, which in turn has increased the price of health insurance for consumers, reduced the supply of physicians, and made health care generally less affordable and less accessible.

Attack on Care Providers

Extreme financial judgments against health care providers work at cross-purposes with efforts to extend affordable health insurance to the uninsured population.

Mega-bucks settlements have made malpractice insurance unaffordable and unavailable to many health care providers. As a result, many doctors are being compelled to retire at the peak of their careers, limit their medical practices to all but the most routine health care procedures, shift their energies into research rather than practice, or move to a state with reasonable malpractice laws.

Nursing home care has been especially hard hit, in part because of the increase in the number of senior citizens served by those facilities. Both the number of lawsuits and the size of awards are trending up.

Between 1995 and 2001, according to a February 2002 study by Aon Risk Consultants Inc., the national average of insurance costs for nursing homes increased from $240 per occupied skilled nursing bed to $2,360. From 1990 to 2001, the average dollar size of claims tripled and the number of claims per bed increased from 3.6 to 11 per 1,000 beds.

Consumers Suffer

The lack of affordable insurance for providers makes it more difficult for consumers to get affordable, accessible health care--especially for high-risk medical specialties, such as obstetrics and neurosurgery, and in underserved rural communities.

With fewer doctors available, we are beginning to experience longer wait times for an appointment, queuing at hospitals, and a shortage of medical specialists trained to tackle the tough medical cases.

We are also experiencing the price inflation caused by defensive medicine.

The actions taken by physician-defendants — often years before a malpractice suit goes to trial — are carefully scrutinized and often judged on the basis of medical standards that were not in place at the time the alleged malpractice took place.

Because they cannot be certain their usual procedures wont be judged by the litigation system as lacking some years into the future, physicians today are adjusting their treatment protocols to cover all the bases. The malpractice lottery thus inflates the cost of medical care by forcing doctors to over-treat and over-test their patients.

In a Fear of Litigation survey conducted in mid-April 2002 by Harris Interactive, doctors reported they perform tests and provide treatments they would not ordinarily perform, simply to protect themselves against a potential lawsuit. Seventy-six percent of respondents to the Harris survey felt their ability to provide quality care to patients has been compromised as a result.

This practice of defensive medicine, while useful in a courtroom, does little or nothing to enhance patient outcomes. Every test and treatment poses a risk to the patient. Those tests and treatments also cost money ... some health economists suggest the cost of defensive medicine now exceeds $100 billion a year.