The Doctors vs. the Lawyers

Whose side is the Times on?

The New York Times came forth last week with an intriguing political story—but a puzzling piece of journalism. The story talked about how New York’s new governor, Andrew Cuomo, seems to have made a deal with the state’s hospitals, which might otherwise have screamed and yelled about Cuomo’s proposed budget cuts. Those cuts would reduce the hospitals’ Medicaid reimbursements by two percent across the board, and would also impose a spending cap. Sounds onerous, until you read the rest of the story.

The hospitals are screaming no more. Cuomo’s Medicaid committee has proposed tort reform—that red herring of an issue that never seems to disappear, because the medical establishment reaps lots of capital for touting it as the culprit for high health care costs, even if it isn’t. The proposal calls for a cap on noneconomic damages—that is, a limit on the amount of money an injured patient can collect for pain and suffering on top of what they can recover for lost wages and medical bills. If hospitals are off the hook for paying for the mistakes their doctors and nurses make, then they will save about $700 million a year, which will help compensate for lower payments from Medicaid. “Medical malpractice reform is a major and fair way of getting costs out of the hospitals,” says Ken Raske, who heads the Greater New York Hospital Association.

So who will assume these costs? And where do patients stand in this deal? What does this constant sparring between the medical guys and the lawyers mean for them? No redress to the courts; long delays if they do get there; large out-of-pocket costs while they wait for compensation from an injury caused by a bad doctor or a bad nurse?

The Times story didn’t connect with ordinary people, except to say “Critics of the malpractice proposal accuse Mr. Cuomo of selling out patients to please the hospitals and get them on his side.” In the ninth paragraph, readers learn that the Gov’s proposal would set up a medical indemnity fund for infants who were brain damaged at birth. I guess that’s something that links the issue to humans. even if they are wee ones. Toward the end of the piece, we hear that critics assert malpractice changes would “make it more difficult for New Yorkers to get compensation in cases of doctor wrongdoing.” They also question whether caps will save the state money.

The story flew over the heads of most readers—too much Albany inside baseball and prose that was either too cryptic or crossed the line between editorializing and news writing. This was a story about budget antagonists talking to each other. Perhaps it was not intended to inform ordinary people. It used the term “noneconomic damages” without explaining what they were. Unless you kind of understand tort law, you may not know what the reporters are talking about. Here’s another sentence that’s about as transparent as thick mud:

The hospitals would also lose about a big chunk of the savings in a clawback of sorts by the state and the federal government (though the full extent will not be clear until Mr. Cuomo amends his budget to include the Medicaid recommendations).

Other language was just over-the-top. The Times reported that enthusiasm for the hospitals’ support for Cuomo’s budget cuts was “startling.” For whom? One graph begins: “Critics of the malpractice proposal tend to begin their grumbling with the accusation that Mr. Cuomos has sold out to a powerful lobby….” I wasn’t sure if the reporters were favoring the hospitals. That language seemed to demonize the argument of the trial lawyers, the other side in this dog fight. A fair look at the issue would also show that the courts may not be the best way for resolving disputes when a patient is injured by medical practitioners.

Stories like these continue to perpetuate myths about malpractice. Whenever I interview people for CJR’s periodic town halls, they tell me tort reform is the number one solution to the problem of high medical costs. It’s hard to do the research on the cost of defensive medicine, says Robert Berenson, a health policy expert at the Urban Institute. “The Congressional Budget Office estimates that it’s about one percent of health care spending. It’s not trivial, but the notion that it’s a major cost driver is just not right.”

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Trudy Lieberman is a longtime contributing editor to the Columbia Journalism Review. She is the lead writer for The Second Opinion, CJR's healthcare desk, which is part of our United States Project on the coverage of politics and policy. She also blogs for Health News Review. Follow her on Twitter @Trudy_Lieberman. Tags: , , , , ,