Any real health care reform difficult in Oregon

Jeff Kruse

by Sen. Jeff Kruse (R-Roseburg)

The issue with tort reform has never been rewards for actual costs, which could include everything from actual medical expenses to the loss of potential income which could stretch out of a life time.  The issue has been what is called punitive damages (which some label as pain and suffering), which is an amount above and beyond any true costs.  Several decades back the Legislature put limits in statute and they stood for a long time, until a case was taken to the Oregon Supreme Court.  In that case the court determined the limits to be unconstitutional as a denial of due process.

Several years later there was a suit against OHSU with a huge settlement.  At that point the issue of uncapped liability for government entities forced a discussion on resetting limits just for the government sector.  Legislation was passed to give government protection that actually flies in the face of the court decision.  An interesting glitch in the system is the fact the legislature can put laws on the books that are unconstitutional and they will stand until the issue is actually taken to court.  In other words, the court cannot make such a determination until a party with standing actually brings a case before them.  In this case the trial lawyers, who were part of the work group, agreed not to challenge these caps.

As a member of the workgroup I argued if these caps were good for government they should be good for the private sector as well.  I lost the argument.  Move forward a few years into health care transformation.  We have statistics that show defensive medicine could account for 20 to 30 percent of the cost of health care.  With the understanding we are trying to lower costs it would make sense to give medical providers some liability protection to limit unnecessary tests and procedures.

Another issue is the fact it is getting harder to bring providers to Oregon when they can go to states that actually offer them some protection.  To this end I proposed an amendment to the reform bill in 2012 which would include all medical providers under the provisions of the Oregon Tort Claims Act referenced above.  This was met with vigorous opposition from the trial lawyers.  In the end we put a provision in the bill for the Governor to put together a task force to explore the issue, and I was a member of the task force.

After 9 months of meetings we came up with what should be appropriately called a “Safe Harbor” concept which became SB 483.  What this allows for is the opportunity for medical providers and patients to be able to have a completely open discussion and potentially arrive at a settlement through a mediation process in a format that is “not discoverable”.  What this means is none of these conversations or agreements can be used in court if at the end of the day a person still decides to sue.

I supported this bill and was actually one of the sponsors of it.  I did this because I actually believe this new process could help some people get a full understanding of what went wrong and actually get some closure and peace of mind.  A very small step in the direction we need to go.  The Governor’s press release called it tort reform, but in the context most people understand it clearly is not.  Unfortunately, with the current makeup of the legislature, we will not even have the opportunity to pass a measure to refer this issue to the ballot.

We continue to hear about all of the wonderful things we are doing in health care transformation.  In reality all we have done so far is “rearrange the deck chairs” in the Medicaid program.  Until we are willing to take a real look at some of the outstanding issues like liability reform my fear is all we will be doing is implementing Obama Care.  We were supposed to be doing something Oregon specific and my fear is just following the federal act will break our budget the same as it is doing on the federal level.  These are troubling times.

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Posted by at 05:44 | Posted in Health Care Reform, OR 77th Legislative Session, Oregon Senate | 12 Comments |Email This Post Email This Post |Print This Post Print This Post
  • Tomas Bozack

    Senator Kruse seems to be under the mistaken impression that medical tort costs add substantially to the cost of medical care in America. He has stated publicly that 25% of overall health care costs result from medical malpractice liability. There is no data to back up this number. In fact, the actual cost is far less.

    A study published in 2010 found that medical malpractice liability costs, including defensive medicine, only added 2.4% to the overall costs of health care in America (https://www.medpagetoday.com/PracticeManagement/Medicolegal/22051).

    In 2006 the Congressional Budget Office published a report (https://www.cbo.gov/ftpdocs/71xx/doc7174/04-28-MedicalMalpractice.pdf) comparing data from states with malpractice judgment caps to those without. It concluded:

    “Although the analysis provides some evidence of links between tort limits and health care spending, the results are inconsistent and depend on the particular relationships and specifications tested. The mixed results also demonstrate the difficulty of disentangling any effects of tort limits from other factors that affect levels of spending for health care.”

    This isn’t surprising. If tort costs contribute only 2.4 percent to overall health care costs, it’s understandable that any reduction resulting from reduced tort costs would be lost in the noise.

    The takeaway from all this is that Senator Kruse is wasting his time if he thinks capping malpractice damages will significantly reduce the overall cost of health care in Oregon. Perhaps Senator Kruse in unaware of these facts, but I think it’s more likely that he’s following the standard Republican line of advocating medical tort reform to stick it to trial lawyers who contribute more money to Democratic candidates than to Republicans.

    • DavidAppell

      Thanks for presenting some real data.

  • Tom M

    Tomas Bozack is worried that Jeff Kruse is following the “standard Republican line of advocating medical tort reform to stick it to trial lawyers who contribute more money to Democratic candidates than to Republicans.” That may be, but so what? That’s the way the game is played ON BOTH SIDES OF THE AISLE!

    On the other hand, I, a good Republican, oppose medical tort reform. I watched both my wife and my mother die at the hands of incompetent doctors. I know that until the various Medical Associations are willing to discipline incompetent doctors, the only way to make them stop practicing is to hit them with enough lawsuits that they give up their practice because their insurance becomes too expensive.

  • HBguy

    Tell you what Rep. Kruse, I will support your tort reform as long as you include a provision that reduces my health insurance premium 15%. That should still leave an additional healthy profit for the insurers and medical industry…….assuming your rhetoric is correct about the cost of defensive medicine and assuming that health care is a free marketplace.

    Though there is something to be said for allowing juries of our peers to determine how much injured people are entitled to rather than letting State Legislators decide.

    When you think about it, juries are the best example of the free market we have. They’re unincumbered by prospects of re-election, don’t generally accept bribes, and have the opporuntity to hear both sides of a position in as fair a forum as we can muster – rather than through lobbyists buying their way into an inner office of private fundraiser.

    • DavidAppell

      If you think health care should be a free market, why do you expect government to reduce your premiums? It’s either a free market or it’s not.

      By the way, a free market will never work for health care — consumers often have no choice over what health care they must buy, or when,.

      • HBguy

        It’s not always easy to see tongue in cheek online. Maybe we should do this by skype.

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